VORA GULAMBHAI HAJI KARIMBHAI Vs. SHIVAJI KOYAJI PARMAR

JUDGEMENT

(1.) The plaintiffs in the instant case claiming to represent all the residents of village Fatehpura of Bayad taluka of Sabarkantha District claimed that all the people in the village had a right to graze their cattle on two parcels of land and they had also a right to remove from the said land fire-wood as could be carried on the head. The plain- tiffs claimed inhabitants of both these villages right from the time imm- emorial enjoyed these rights.

(2.) The first point for determination that arises in this second appeal before me is whether the defendants Nos. 1 and 2 are the owners of the land in dispute namely survey Nos. 125 and 108/2. The learned appellate Judge in paragraphs 13 14 and 15 of his judgment has dealt with the question of the ownership of the defendants Nos. 1 and 2. The learned Judge quoted sec. 8 of the Jagir Abolition Act and came to the conclusion that as these lands were not cultivated they were waste lands and as they were waste lands they got vested in the State. It appears that the learned Joint Judge did not appreciate the distinction between the waste land and the jungle land. After having accepted that this Jagir was a proprietary jagir and after having found that these lands were forest lands it was not open to the learned Joint Judge to say that the lands were waste lands because they were uncultivated lands. It is too naive to state that forest lands are waste lands. If any authority on the proposition is needed we can lay our hands on the case of SHRI U. P. MAVINKURVE V. THAKORE MADHAVSINGHJI GAMBHIRSINGHJI & OTHERS REPORTED AT A.I.R. 1965 S. C. 1747. It was a case arising under the very Jagir Abolition Act. In para 8 of that judgment it has been observed as follows: We are accordingly of the opinion that after coming into force of the Jagirs Abolition Act the respondents Nos. 1 to 11 became occupants in respect of the forest lands in the 36 villages and the only rights which they have are those of occupants under the provisions of the Bombay Land Revenue Code and such rights do not include the right to cut and remove the trees from the forest lands of the villages in question.

(3.) The Division Bench of this Court consisting of S. H. Sheth & B. K. Mehta JJ. while disposing of the First Appeal No. 291 of 1967 on 7 February 1975 has held that forest lands are not waste lands. This view is expressed authoritatively by the Division Bench after referring to various earlier authorities. The Division Bench has observed as under: For the reasons which we state below we are of the opinion that forest lands are not waste lands. Therefore they have not vested by virtue of the provisions of sec. 8 of the Jagir Abolition Act in the State of Gujarat. Mr. Justice J. B. Mehta in Special Civil Application No. 570 of 1963 decided by him on 5th November 1968 has observed that a land can be said to be waste if it is so useless that it is incapable of any use. In the case of Ibrahim Akbarali (Supra) this court has accepted that view. The question therefore is that in order to style forest lands as waste lands can we say that they are so useless as to be incapable of any use ? In our opinion lands where timber trees grow which in their turn yield rich forest produce can never be said to be waste lands because they cannot be said to be so useless as to be incapable of any use. Lands such as rocky stony or saline lands may fall under the category of waste lands. Since in our opinion forest lands are not waste lands within the meaning of the Jagir Abolition Act they have not by virtue of sec. 8 of the Jagir Abolition Act vested in the State. The fourth contention which Mr. Chhaya has raised before us therefore fails and is rejected in both its aspects.