LAXMANRAO VISHWANATH KULKARNI Vs. CHANDRABHAN MAHADU BIDVE

JUDGEMENT

(1.) This is plaintiffs appeal who has failed in both the courts below in establishing his right to share in the suit land, Survey No. 12, situate in village Masla in Latur District. The few material facts are these. Masla village was a part of the erstwhile Hyderabad State. One Sakharam Appaji who was the Pattedar of the suit land executed a sale deed in respect of the suit land in the year 1918. A.D. (1328 Falsi) in favour of defendant No. 1. The recitals of the sale deed showed that the suit land was in possession of the vender as a mortgaged which possession was confirmed as that of an owner under the sale deed. The sale deed further recites that the land was of the ownership of the vendor and the Patta also stood in his name in the village records. The sale deed is attested by the Wamanrao Kulkarni the grant father of the plaintiff. Wamanrao Kulkarni had also identified the vendor before the sub-registrate. The plaintiff filed the suit contending that the said Wamanrao had share in the shit land and he is entitled to the same was as successor in title of Wamanrao. The suit land was admittedly in possession of defendant No. 2 as a tenant since the time of his ancestors. Both the defendants denied the plaintiff alatm. Defendant No. 1 contended that the suit land exclusively belonged to the Pattendar Sakharam Appaji who transferred the same in his favour under the sale deed. In other words, he claimed that he became the exclusive owner of the suit land under the sale deed. The defendant No. 2 also supported the defendant No. 1 contending inter alia that he never paid any rent to the plaintiff, but that the rent was paid all along to defendant No. 1 as his landlord. The short question that arose for consideration in the suit was whether the plaintiff proved that Wamanrao had share in the suit land and that the plaintiff was entitle thereto as his successor in title. Both the courts below have concurrently held that the plaintiff had failed to prove the title to the suit land.

(2.) Mr. Deshpande, the learned Counsel appearing for the plaintiff appellant relied on the entry in the village records showing the name of Wamanrao Kulkarni as the Shikmidar to the extent of share in the suit land. He submitted that the sale deed in favour of the defendant cannot effect the rights of the plaintiff as Shikmidar to the extent of share in the suit land. He also contended that this entry in the village record was not challenged by defendant No. 1 at any time. According to the learned Counsel, if regard the be had to the provisions of the Hyderabad Land Revenue Code Shikmidar means a sharer in the land and as the entry clearly shows that Wamanrao Kulkarni was Shikmidar to the extent of eight annas share, his title to the extent of share in the suit land devolved on the plaintiff as the successor in title of Wamanrao Kulkarni.

(3.) Hyderabad Land Revenue Code which was in force till 1966 was replaced by Maharashtra Land Revenue Code. I shall hereafter refer to the relevant provisions of the Hyderabad Land Revenue Code which were referred to by the learned Counsel during the course of his argument. Under section 2(12) a Shikmidar signifies the person who like a "Pattedar" possesses a right to the land or who from the beginning has been jointly in possession with the Pattedar or who before the promulgation of the Act, by virtue of any rule in force, has acquired the right of a Shikmidar or shall hereafter acquire such right under the provisions of this Act. Although, this definition lends assistance to the argument of the learned Counsel, there are certain other provisions in the Act of the Code which must be considered for the proper construction of the words Shikmidar. Section 2(16) defines that rent means any consideration in money or kind or both, paid or payable by a Shikmidar to his Patedar or by on Assami Shikmi to the holder of the land on account of the use or occupation of the land held by him, but shall not include the rebounding of any personal service. This definition would show that Shikmidar is not necessarily a person who owns a share in the land because the definition of rent referred to above also indicate that a Shikmidar may be in the position of a tenant. Then a reference also was made to section 67 which runs as under :