DAJI KRISHNAJI DESAI TAMBULKAR Vs. GANESH VISHNU KULKARNI

JUDGEMENT

(1.) This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiff-appellant.

(2.) The plaintiff sued for a declaration that the property in suit which is situate at Mouje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property, on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabi was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5 ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent No. 1, purchased the shares of these persons by the sale deeds dated December 14, 1903 and February 13, 1904. On Kulkarni's death, respondent No. 1 became the owner of the property, Respondents Nos. 2 to 4 are the tenants of respondent No. 1

(3.) The land in suit is khoti land as defined in Cl. (10) of S. 3 of the Khoti Settlement Act, 1880 (Bom Act I of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to Cl. (2) of S. 3, includes a mortgagee lawfully in possession of Khotki and all co-sharers in a khoti. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecessor-in-interest of respondent No. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer.