SADASHIV RAMCHANDRA NADGOUDA Vs. AMRITRAO GOVIND SABNIS

JUDGEMENT

(1.) THIS appeal is preferred by the defendant in a suit by the plaintiffs for a declaration that they were entitled to recover assessment of the suit lands from the defendant.

(2.) THE facts leading to this case are shortly as follows:- THE suit lands are jat inam sheri lands and one Narayan Vishram was their owner. He mortgaged them on June 16, 1875, to one Govind by which all the rights which he had in the mortgaged lands were given in security. THE mortgagor was to pay the judi to the Government in the first instance,. and if it was not paid, the mortgagee had to do so. THEreafter, there were three other mortgages of the same property in 1888, 1889 and 1893 to the same mortgagee and after his death, his widow. In October, 1914, the mortgagee obtained a decree on all the mortgages and applied to execute it. In May, 1915, a proclamation of sale of the mortgaged property was issued, and it was stated therein that the right, title and interest of the defendant, i.e. the inamdar, in the property was to be sold. In the next month the mortgagee purchased the property with the permission of the Court, and in 1923 she got possession in execution. THEreafter the mortgagor inamdar sought to recover assessment of the lands in possession of the mortgagee on the ground that his right as inamdar to recover assessment of the inam lands had not been sold to the mortgagee, but what was sold was only his right as occupant. A distinction was sought to be made between the two capacities of the inamdar, i.e. inasmuch as the inamdar was himself in possession of the land and was getting it cultivated by his tenants, he was the occupant of the land, and inasmuch as he was an inamdar, he had a right to recover the assessment of the lands in the village including this particular land. That contention was negatived by the Collector who held that in the mortgage-deed as well as in the decree and the proclamation of sale what was mortgaged as well as ordered to be sold was the whole of his interest as inamdar and not merely as occupant. THE Collector was of the opinion that there was nothing in the wording of the decree or the proclamation of sale to suggest that the right, title and interest put to sale was restricted to the inamdar's occupancy interest in the land or that it excluded his interest in the royal share of the revenue. THE inamdar's application was, therefore, rejected. It was on account of this order that this suit was brought by the inamdar and his son for a declaration that they have a right to recover the assessment from the defendant on the ground that the right to levy the assessment had not been sold in the auction.

(3.) IT is, therefore, necessary to see what exactly has been decided in those two cases. The second of the two decisions simply purports to follow the First one as it was in respect of the same kind of land in the same village. The facts in the first case were that in 1859 the Government had resumed the inam and in 1864 the right, title and interest of the inamdar and his sons were put up by the Court for sale and purchased by one Ratnappa. In 1882, the inam was restored to the inamdar. In 1895 and 1902 the purchaser sold the land in two parts to the defendants. The question was whether the defendants had acquired all the inamdar's rights. In 1864 when the sale took place full assessment was being paid by the inamdar to the Government. So that as inamdar he was not paying it to himself, and no such separate right of paying to himself existed and could be sold. The decision of Madgavkar J., who decided the appeal, is based upon the finding that at the time when the sale took place, the inamdar himself was paying assessment to the Government on account of the resumption of the inam and therefore, what could be sold would be only his right, title and interest as the occupant of the land and not as inamdar, because his capacity as inamdar was not in existence when the sale took place. However, the learned Judge makes certain general observations which, in my opinion, were not necessary for the purpose of the decision in that case. His observations are as follows: Ordinarily land in this Presidency, is the subject of a right to occupy on the part of the occupancy tenant with a liability to pay assessment. In the case of inam lands this assessment is paid not to Government, but to the inamdar, who in his turn pays a portion of it usually l/8th as judi to Government. In the case of sheri inam land, the liability to pay assessment still remains, but the inamdar in his capacity as occupancy tenant levies it on himself and retains 7/8th as inamdar.