DATTATRAYA VASUDEV KHATKUL Vs. PARASHRAM ANANT MOGHE

JUDGEMENT

(1.) THIS appeal involves a question of considerable importance under the Khoti Settlement Act, 1880.

(2.) THE facts are not in dispute. THE plaintiff and defendants Nos. 2 to 17 are co-sharers in the khotki of the village Kasheli in Ratnagiri District. Defendant No.1 is a permanent tenant of khata No.84 in that village. I may mention here that before the amendment of Section 3(4) of the Khoti Settlement Act, 1880, by Section 85(b) of Bombay Act IV of 1913, permanent tenants were styled "occupancy tenants." In accordance with the Recording officer's tharav or decision, defendant No.1 and his predecessors were paying to the khot that (rent) at three times the survey assessment in respect of their khata No.84. This went on till defendant No.2 became the managing khot for 1935-36. Defendant No.1 then made an application to the Recording-officer requesting that his liability in respect of khata No.84 should be fixed at survey assessment and local fund cess only. Defendant No.2 as the managing khot having given his consent to this change, the Recording-officer passed an order on July 30, 1935, granting the request with effect from 1935-1936. THE plaintiff became the managing khot for 1936-37, and when he discovered this change, he filed this suit to have it declared that the order of the Recording-officer was void and not binding on him and on defendants Nos. 3 to 17 and that they were entitled to recover that at three times the assessment as before and to have the amendment of the entry in the botkhat cancelled. Defendant No.1, who was the only contesting defendant, contended that the suit was barred by Section 20 of the Khoti Settlement Act, 1880, that the consent of the managing khot was binding on all the khoti sharers and that the order passed by the Recording-officer was legal and valid. THE trial Court upheld all these contentions and gave the plaintiff a decree for the recovery of only Rs. 2-7-9, the unpaid portion of the survey assessment and local fund cess due from defendant No.1. In appeal the learned Assistant Judge held that the suit was barred under Section 20 of the Act and confirmed the decree of the trial Court.

(3.) IN the present case it is expressly alleged in the plaint that the Recording-officer had made a tharav that the rent payable in respect of khata No.84 was three times the assessment. That allegation was not traversed by defendant No.1 in his written statement. Thus it may be taken as admitted that an entry had already been made in the record under Section 17(a) according to the provisions of Section 33(c), Rule 11(1)(a) or (b). Hence when the Recording-officer changed that entry at the instance of defendants Nos. 1 and 2, he must be deemed to have acted under Section 18(2) and not under Section 17(a).