SIDDIMIYA GULAMMOHMAD Vs. ASSTT COLLECTOR ANAND

JUDGEMENT

(1.) This petition is directed against two orders (1) the order passed by the Additional Collector and confirmed by the State Govern- ment determining that the grant in question was a non-proprietary jagir and (2) the orders determining compensation Exhibits L to N to the peti- tion by which the Assistant Collector Anand determined compensation payable to the petitioner for the abolition of his jagir under the Bombay Merged Territories and Areas (Jagirs Abolition) Act XXXIX of 1954 hereinafter referred to as the Jagir Abolition Act.

(2.) According to the petitioner he was at all material time the Inamdar in respect of shared villages Jamalpur Aspur Bhan-talavdi and Chikhli- Joza situate in the territories of the ex-Balasinor State. The case of the petitioner was that his ancestors who were pirjadas were holding these four villages as personal inams even before the existence of the Balasinor State. It appears that certain disputes regarding the management of these four villages arose between the State of Balasinor on the one hand and the sharers on the other in consequence of which certain sharers (but not the petitioners ancestors) entered into kabuliyat dated September 8 1893 whereby they surrendered their interest in the villages Aspur in considera- tion of the State of Balasinor giving to them lands situate in another village called Ghantia in Virpur Paragana and other lands admeasuring about ninety-three acres. As a result of the aforesaid kabuliyat the right title and interest of those co-sharers in Aspur village came to be transferred to the State of Balasinor. As regards the disputes between the State of Balasinor and the petitioners ancestors regarding the management of the aforesaid four villages it appears that they were referred to the Karbhari of the State one Premchand Karsandas. On or about September 11 1893 the petitioners ancestors and the other sharers in these villages gave an agreement in writing to the said Karbhari which was subsequently sanc- tioned by the ruler of the Balasinor State by a formal resolution dated May 2 1894 The said resolution provided that the villages in which the Balasinor State had no share in the sagi jungle and bamboos the State and the Inamdars would have half and half share. In the villages in which the Durbar had however a share the Durbar would have half the share and as far the rest of the jungle the Durbar and the Inamdar would share half and half. The resolution also provided that the forests which then existed and which would come in future in existence would be managed and sold by the Durbar and the Durbar would then hand over after deducting the necessary expenses to the Inamdars the shares which would come to them. The resolution also provided that the Inamdars would have a right to get the fallow land situated in the jungle cultivated and to take the income thereof but the Inamdars were to get the land so cultivated without damaging the sag forest. The resolution further Permitted the Inamdars to obtain from the forests free of charge wood for rafters to build houses. It also provided that the Durbar would only take in respect of villages in which he had a share his share of income from licences licence fees for chuna bhathis (i. e. lime kiln) built in these villages tax on artisans and the land tax which the Durbar was exclusively realising till then. It also provided that the Durbar would not take the salami i. e. transfer charges in respect of land either purchased or dharmada directly from the owner in these villages and the charges for grazing cattle realised from the visiting Rabaris would be appropriated by the Inamdars so long as such grazing cattle did not exceed two hundred. The resolution also stated that except for the taxes enumerated therein no other new tax whatsoever would be imposed by the Durbar on these villages that the civil and criminal jurisdiction over these villages would be retained by the Durbar and the Durbar undertook to observe and abide by the resolution for ever.

(3.) According to the petitioner his ancestors were entitled under this resolution to the rights and interest in the soil in respect of these four villages. According to him ever since the said original grant and the recognition thereof by the State of Balasinor by the aforesaid resolution dated May 2 1894 the petitioner and before him his ancestors have been enjoying these four villages as personal inams realising income from the revenue from the soil and the forest trees from the licence fees for chuna bhathi kasab vera (tax on artisans) bhom vera and the licence fees for permitting the visiting Rabaris to graze their cattle and the licence to carry away stones and timru leaves from these villages and have thus acquired proprietary rights in these villages. The petitioners case was that these rights constituted proprietary interest in these villages and were not merely assignment of land revenue or the rent due to the State from persons holding lands therein. In or about the year 1923 an enquiry was consti- tuted before the Alienation Inspector of Revakantha Agency in the course of which one Chunilal Chhotalal an employee of the State of Balasinor gave his deposition. The said Chunilal in his aforesaid deposition conceded that the inami villages referred to by him were in the exclusive possession and enjoyment of the petitioners ancestors for nearly two hundred to four hundred years that they were realising income in respect of the said villages and that those villages were registered in the records of the State as Bakshis Inam i. e. personal inams. He also conceded that the State had no objection to a sanad being issued by introducing summary settle- ment. Accordingly the State of Balasinor issued sanads to the petitioners ancestors in respect of the villages of Aspur Jamalpur Chikli-joza and Bhan-talavdi. According however to the affidavit in reply made by the Collector Kaira the case in which the said Chunilal gave his deposition was in respect of other villages and not the villages in question and that therefore the issuance of the said sanads by the State of Balasinor in 1923 had nothing to do with the aforesaid deposition given by the said Chunilal Chhotalal. There is however no dispute that the Balasinor State did issue in favour of the petitioner a Sanad dated May 22 1923 and that sanad was issued in the form of a personal inam. The sanad inter alia recited that by resolution No. 5043 dated September 2 1914 of the Political Department Province of Bombay it was resolved in connection with the Bahar Khali lands of the Balasinor State that the inami village Chikli-joza in Virpur Mahal of Balasinor State was held as personal inam in accordance with the custom prevailing in respect of the lands of the State and that therefore it was decided that the said land will be continued to be considered as Personal Inam property of the landholder as per terms fixed (there) under. According to the terms the landholder should live as Inamdar subject of the Government and should pay Rs. 52-8-0 per year to the Government as per rules provided and terms decided for land. This sanad was issued by the State of Balasinor and bore the signature of the Alienation Enquiry Officer the then ruler of the Balasinor State and his Karbhari. It appears that though the sanad was issued on May 2 1923 it was not handed over to the petitioner and subsequently an endorsement was made under the aforesaid Sanad dated September 4 1924 by the Alienation Enquiry Officer Revakantha wherein it was stated that though the pirjadas were to enjoy income from the lands and the forest and other miscellaneous income the suzerainty of this village land becomes of the State but the income from cultivable land of Kharaba and produce and other miscellaneous income will be of the inamdars as per the settlement this resolution. In this sanad no settlement is made for forests land as per order No. 4107. According to the petitioner certain disputes arose between him and the State of Balasinor in respect of the forest and the lands situate in Aspur village and three orders were passed by the Agent to the Governor General dated December 15 1935 November 22 1936 and June 14 1943 which allowed the petitioners claim in respect of the share in the revenue of the forest land put to cultivation and given over to third parties as also the share in the transfer charges or khed hak charges in respect of the land given for cultivation to third parties. This was the documentary evidence which appears to have been relied upon by the petitioner in support of his claim that the aforesaid grant was a proprietary grant and not a non-proprietary grant or an assignment of mere land revenue.