SUBRAO Vs. BHUPAL DASHARATH KATTE

JUDGEMENT

(1.) This is an appeal filed by defendant I against the judgment and decree of the Civil Judge, Senior Division Belgaum, dated 31st December 1951 in O. S. No. 47 of 1950 decreeing the plaintiffs' suit which was for declaration that the decisions given by the Revenue Courts in respect of the suit lands were ultra vires, without jurisdiction void and illegal and that the defendants hnve no right to increase the rent or to seize possession of the suit lands granted hy the ancestors nf defendant 1 to the ancestors of plaintiffs, and also for the recovery of the amount spent over improving the lands, etc., and for mesne profits.

(2.) The subject matter of this litigation relates to Survey Nos. 162 and 163 situated at Nasalapur in Raibagh Mahal of former Kolhapur State. The old Survey Number of S. Nos. 162 and 163 was 143. The old S. No. 143 belongs to the family of defendant 1. These suit lands are Beshgat Watan Lands. The plaintiffs' case was that the grandfather of defendant 1 granted 12 Bigas in the suit lands to the ancestors of plaintiffs' family hy Miras Patra in 1882 (Exhibit 36). In 1894, the same person granted 18 Bigas out of the same old S. No. 143 to the ancestors of plaintiffs' family by Miras Patra (Exhibit 37). The family of plaintiffs was to enjoy these Bigas permanently on payment of rent to the defendants' family. In 1906, it was decided by the Kolhapur State that these lands should continue on payment of rent of Rs. 157-12-0 per annum to the family of defendant 1. It is said that in 1920, defendant 1 started proceedings under Section 9 of the Watan Act before the Collector of Kolhapur State for the recovery of possession of the lands on the ground that the alienations made by the Miras Pat-ras. Exhibits 36 and 37, were void under Section 9 of the Watan Act after the death of the grantor, but his application was rejected by the Collector. Defendant I preferred an appeal to the Revenue Diwan of Kolhapur State who referred the matter to the Council consisting of himself and two other members. The Council tendered its opinion to his Highness the Maharaja of Kolhapur that 18 Bigas granted hy Miras Patra of 1894 (Exhibit 37) should be restored to defendant 1's family as the Miras Patra amounted to an alienation under the Watan Act and that the suit land consisting of 12 Bigas should be continued in the family of plaintiffs on payment of rent which should be ascertained by the Collector. The opinion of the Council was accepted by the Maharaja who, however, inserted a condition to the effect that in case of non-payment of rent by the plaintiffs' family the suit land should be restored back to the family of defendant I and passed an order accordingly on 30th June 1927 (Exhibit 38). In pursuance to this order the Collector fixed the rent of land at Rs. 210/- per annum and passed an order to the Mamlatdar of Raibagh to recover the rent amount accordingly (Vide Order, Exhibit 40, dated 8-1-1929). It appears that on 30th November 1936 the defendant I made an application to His Highness the Maharaja of Kolhapur for the restoration of the suit land on the ground of non-payment of rents by plaintiffs' family as directed by the order of 1927 (vide application, Exhibit 120, dated 15-10-1951). On receipt of this application, the Collector submitted his opinion to the Maharaja that, although the plaintiffs' family was in arrears of rent, two months time should he given to pay off the arrears and the land should be restored to the family of defendant I. The Maharaja of Kolhapur, however, did not accept his opinion and ordered the restoration of the suit land to the family of defendant 1 on the ground that the plaintiffs' family had violated the Older passed in 1927 and they are liable to be evicted (Vide Order Exhibit 39 dated 16-2-1938).

(3.) It is alleged by the plaintiffs that the impugned orders were without jurisdiction and ultra vires. Defendant 1 inter alia, contended that the orders dated 30th June 1927 and 8th February 1938 were passed by the Maharaja of Kolhapur in his sovereign authority as an executive head of the State and were intra vires and that the Civil Courts have no jurisdiction to question these orders-He further contended that the suit is barred by Section 4 of the Revenue Jurisdiction Act and it is also time barred under Section 14 of the Limitation Act. Defendant 2 who is the protected tenant of the suit land on behalf of defendant 1 supported the defence set up by defendant 1.