NARAYANRAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant before me in this first appeal, since deceased, was the plaintiff in the trial Court who had filed the suit in question for declaration that the order passed by the Deputy Collector (Ceiling), Nanded, dated 31st August 1965, holding that the plaintiff was a surplus holder of an area to the extent of 52 acres and 39 Gunthas of land was illegal, null and void. He also attacked that part of the same order by virtue of which the Deputy Collector did hot give the plaintiff an opportunity to select Survey Nos. 76, 77 and 31/A admeasuring 59 acres and 65 Gunthas in all to be declared as surplus area. The suit has been dismissed by the trial Court. Hence this appeal. In this appeal initially Mr. Deo struggled to contend that the said piece of land under Survey Nos. 76, 77 and 31/A could not be said to be belonging to the plaintiff having regard to the provisions of Section 14 of the Hindu Succession Act, 1956. In the alternative, he contended that even assuming that those lands were not the separate property of the plaintiff's wife and even assuming that those lands were to be included in the total area of land held by the plaintiff for determining surplus land held by him in the context of the provisions of the Maharashtra Agricultural Land (Ceiling on Holdings) Act, 1961 (hereinafter, the Ceiling Act) still it was incumbent upon the Deputy Collector to give a chance to the plaintiff to treat these lands as surplus lands. He contended that in the instant case no such chance was given to the plaintiff and that, hence, the order of the Deputy Collector treating such land, Survey Nos. 114, 60, 43/B and a portion of Survey No. 40, is illegal.

(2.) The question arises in the following circumstances:-- There is no dispute that Survey Numbers 76, 77 and 31/A and various other lands at one tune belonged to the plaintiff and his entire holding of all the lands which were 10 in number admeasured 148 acres and 29 Gunthas. It is the plaintiff's case that in or about the year 1953 there were certain matrimonial bickerings between himself and his wife and, hence, the three lands Survey No. 76 (22 Acres), No, 77 (35 Acres, 21 Gunthas) and No. 31/A (7 Acres, 24 Gunthas) were given by him in the possession of his wife for maintenance. It is his case that he got necessary mutation entries in the record of rights made by virtue of which his wife was shown as the Kabjedar from that year. It is the further case of the plaintiff that in the year 1955, he became ill and, hence, he called back his wife and that she started living with him once again. It is his further case that thereafter his wife entered into an agreement for sale of the abovementioned lands Survey Nos. 76 and 77 with defendants Nos. 2 and 3 respectively. The entire consideration was received and the possession of the lands was handed over to defendants Nos. 2 and 3 respectively. It is the further case of the plaintiff that on 6-7-1959 plaintiff's wife obtained permission from the Deputy Collector for sale of these lands and on 31-7-1959 two sale deeds were executed by her in favour of defendants Nos. 2 and 3 respectively. Exh. 59 is the sale deed executed by her in favour of defendant No. 2 in respect of Survey No. 76 and Exh. 57 is the sale deed executed by her in favour of defendant No. 3 in respect of Survey No. 77. To complete the chronology of events, it may be stated here that the Ceiling Act came into effect thereafter. Under the said Act 4-8-1959 was the notified date. A notice dated 21-2-1962, was, thereafter, sent by the Deputy Collector to the plaintiff under the said Act for investigation into the question of surplus holdings, if any, held by him. By the said notice, the plaintiff was called upon to submit his return in that respect on 26-11-62. In his return he did not show the abovementioned three lands Survey Nos. 76, 77 and 31-/A to be part of his holdings on the relevant date. Thereafter, on 23-4-1964 a notice was given to him by the Deputy Collector relating to the inquiry to be held for ascertaining the plaintiff's holdings. The date of inquiry mentioned in the said notice was 20-5-1964. The notice was at Exh. 52 in the trial Court. The notice is an omnibus notice. In the notice the plaintiff is called to mention as to which of the lands he would choose for being treated as surplus lands. By the self-same notice he is called upon to explain many other things as well as also to show cause as to why any particular land should not be treated as surplus land and further as to why any particular transfer should not be treated to be one offending against the provisions of the Ceiling Act. The question that is material and relevant for the purpose of these proceedings is as to whether the plaintiff was called upon to exercise his option to make a selection in respect of the lands which he would choose to be held as surplus lands. Clause 11 of the notice is relevant in that behalf. The said clause calls upon him to select; subject to the provisions of Section 16 of the Ceiling, Act, the lands for being treated as surplus lands; but evidently this clause has to be read subject to the initiating portion of the said notice which mentions that the plaintiff held the lands mentioned in the Schedule annexed to the said notice. The schedule is written on the reverse of the said notice. The noteworthy fact is that the said lands Survey Nos. 76, 77 and 31-A were not mentioned in the said schedule. It follows that as per the notice the plaintiff was never given option to select these suit lands for being treated as surplus lands. After this notice, proceedings were held and by his order dated 31-81965 the Deputy Collector held that the abovementioned suit lands were part of the plaintiff's holdings and that the plaintiff was holding an area of 52 Acres, 29 Gunthas as surplus lands. The Dy, Collector also ordered that land admeasuring 1 Acre, 3 Gunthas from Survey No. 114, 14 Acres, 38 Gunthas from Survey No. 60 and 4 Acres, .39 Gunthas from Survey No. 43B and land admeasuring 31 Acres, 30 Gunthas out of Survey No. 40, all of them totally admeasuring 52 Acres, 29 Gunthas should be treated as surplus land. Against the said order, the plaintiff filed a revision application to the Maharashtra Revenue Tribunal. What is to be noticed here is that the question urged before the Tribunal was restricted only to the correctness and legality of the order of the Dy. Collector in so far as he held that the said lands continued to be of the ownership of the plaintiff, entries in the revenue records notwithstanding. The Tribunal dismissed the application by its order dated 7-12-1966. Against the said order of the Tribunal, the plaintiff filed a writ petition to this Court under Article 227 of the Constitution of India. But even in the writ petition the question that was urged was the one relating to the validity of the order of the Deputy Collector, in so far as, by the order the Deputy Collector had included the suit lands in the holdings of the plaintiff, the contention urged before this Court was that the plaintiff had given the lands to his wife and she had even sold those lands to strangers and that, hence, those lands could not be included in the holdings of the plaintiff. This contention was negatived by this court. No other point was urged before this Court and, hence, the writ petition was dismissed with costs by this Court by its order dated 26-9-1968.

(3.) After this defeat the plaintiff started a second round of litigation by filing Civil Suit No. 92 of 1969 in the Court of the Civil Judge, Senior Division, Nanded. This suit out of which the present appeal arises was filed on 21st July, 1969, In the suit it was contended that the suit lands were of the ownership of the plaintiffs wife and that it was an act of illegality on the part of the Dy., Collector to include those lands in the holdings of the plaintiff. Secondly, it was also contended that it was incumbent upon the Deputy Collector to give an opportunity to the plaintiff to choose the suit lands for being treated as surplus lands. Contention was that in the notice dated 23-4-1964 (Exh. 53) those lands were not included in the schedule at all. The result was that the plaintiff had no opportunity to make any choice at all in the real sense and contemplation of Section 16 of the Ceiling Act. Various defences were raised on behalf of the defendant/Government and, hence, various issues were framed by the learned Judge, On all the relevant issues, the learned Judge recorded a finding against the plaintiff and, hence, he dismissed the plaintiffs suit with costs. The present appeal is filed against the said decree of dismissal.