DAULATRAO MALOJIRAO Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) ON March 17, 1944, judgment was delivered in this appeal by my brother Divatia and myself, by which we held, that as the plaintiff's claim is advanced and rests upon a saranjam tenure, Section 4 of the Bombay Revenue Jurisdiction Act of 1876 is a bar to any relief being granted to the plaintiff against Government relating to the suit lands, in so far as they are classified to be granted or held as saranjam. At the same time, we pointed out, that the appeal raised a very important question so far as the general body of the saranjamdars is concerned and we intimated that Government might desire to have it judicially determined by making a reference under Section 12 of the Bombay Revenue Jurisdiction Act. Accordingly, before passing any order, we gave an opportunity for a reference to be made, and it is such reference which is now before this full bench. The facts sufficiently appear from the judgments delivered on March 17, 1944, and arising out of what was then said Government have referred to us the following questions : (1) Whether on February 25, 1936, being the date of the sub-divisional grant of the Gajendragad estate, the saranjam tenure in the 60 acres had been destroyed by the adverse possession of the kulkarni and his predecessors-in-title. (2) Whatever be the answer to question (1), what is the effect upon the tenure of the 60 acres as it existed immediately before February 25, 1936 : (a) as a result of the 1936 Resolution, and (b) as a result of the 1937 Resolution.

(2.) IN its reference Government have concisely set forth the propositions upon which it relies and it will be convenient to refer to these. They are as follows: (1) That every saranjam is held by the saranjamdars as a life estate. (2) That Government have a common law right to resume it at pleasure. (3) That the law does not require Government to exercise that right within a particular time. (4) That land held on saranjam tenure does not lose its saranjam character until the tenure is terminated; so long as the tenure subsists, no possession of the land can be adverse to that tenure; on the contrary it would be subject to the tenure. (5) That the character of land held on saranjam tenure does not change by efflux of time. (6) That no period of limitation being provided for the exercise by Government of their right to resume, such right is not extinguished by efflux of time. (7) That the 60 acres of land in dispute were all along held on saranjam tenure, irrespective of whether the saranjamdar or the kulkarni was in possession. (8) That the resolution of 1936 formally resumed and regranted the 60 acres to Daulatrao Malojirao, the plaintiff. Saranjam tenure therefore continued. (9) That by the resolution of 1937 Government finally exercised their common law right of resumption as they found that the land had passed into the possession of non-saranjamdar. Saranjam tenure was therefore extinguished.

(3.) IT follows from this and from an examination of the resolution of 1936, that question 2 (u) should be answered by saying that the Resolution had no effect upon the nature of the tenure of the 60 acres. IT is to be observed that when examined the 1936 Resolution is not itself a re-grant, for it provides that each of the said de facto shares of the existing grant of the whole estate shall be continuable hereditarily as such as if it were a separate saranjam estate. IT did not in fact change the nature of the tenure of the 60 acres already existing.