KESHAV GOVIND OKA Vs. GANPATRAO BHAURAO KADU

JUDGEMENT

(1.) THIS second appeal arises from a suit filed by the appellant for recovery of possession of among others survey No. 43/11 of Kadapur, Mangaon taluka, Kolaba district. The plaintiff's case was that this land was khoti khasgi land and upon the introduction of the Bombay Khoti Abolition Act, 1949, he became its occupant and he also became entitled to forfeit the tenancy in favour of the defendant as the defendant denied his title and claimed that he was himself the occupant. The defence of the defendant was that the lands in suit were khoti nisbat lands and upon the introduction of the Bombay Khoti Abolition Act, 1949, he became entitled to the occupancy of the lands and he could not be said to have denied the title of the appellant merely because he claimed such occupancy. The facts are not in dispute. It appears that this land was formerly in the possession of a tenant one Jija. She transferred this land to the defendant's father whereupon the plaintiff's uncle who was joint at the time of the transfer filed suit No. 34 of 1927 for possession of the land on the ground that Jija had transferred the land without his consent. He obtained a decree for possession and also obtained possession and subsequently let it to the transferee. It was the contention of the defendant that in these circumstances the land was khoti nisbat land as denned by Clause (ix) of Section 2(1) of the Bombay Khoti Abolition Act, 1949. One part of the definition, namely, Sub -Clause (b(i) of Clause (ix) applicable in the district of Kolaba defines khoti nisbat lands as: (i) land in a khoti village which may have come into the possession of the Khotby lapse for failure of heirs of a tenant or by forfeiture on the tenant's failure to pay rent or by the resignation of the tenant. The defendant contended that when Jija transferred the land to his father she resigned the land within the meaning of that term as used in Section 2(1), Clause (ix), Sub -Clause (b)(i), of the Bombay Khoti Abolition Act, 1949. On the other hand it was the contention of the plaintiff that that could not be the meaning of that word.

(2.) THE learned appellate Judge has held, following the authority of this Court in Purshottam v. Ganpati (1925) 28 Bom. L.R. 750 that the word 'resigned' in Section 2(1), Clause (ix), Sub -Clause (b), Sub -Clause (i), meant transferred by a tenant without the consent of the landlord. He therefore held that these lands were khoti nisbat lands, and inasmuch as it is common ground that in the case of such lands under the provisions of the Bombay Khoti Abolition Act, 1949, the tenant became the occupant, the plaintiff was not entitled to a declaration of his title as an occupant. Nor was he entitled to its possession upon the footing that the defendant had denied his title.

(3.) IT is true that the words have been used in another Act relating to khoti lands this time in Ratnagiri district. They are to be found in Section 10 of the Khoti Settlement Act, Bombay Act I of 1880. Section 10 of the Act as it stood in 1907 came for interpretation before this Court in Ramchandra v. Dattatraya : (1907)9BOMLR320 . That section then stood as follows: - If a privileged occupant resigns the land or any portion of the land in his holding, or if any such occupant's land lapse for failure of heirs, or other persons entitled thereto, or is forfeited on the occupant's failing to pay the rent due in respect thereof, the land so resigned, lapsed, or forfeited, shall be at the disposal of the khot as khoti land free of all encumbrances other than liens or charges created or existing in favour of Government. But it shall not be competent to a privileged occupant at any time to resign a portion only of his entire holding except with the consent of the khot; and no privileged occupant shall be deemed to have forfeited his land on failure to pay rent unless such forfeiture is certified by the Collector. It was held that the ordinary use of language does not permit the words 'to resign the land' being interpreted to mean to transfer the land to another on a sale deed and that it was impossible to interpret those words to mean it in view of the provisions of Sections 9 and 10 of the Act. The word 'resign' therefore was held consequently not to include transfer by a tenant without the consent of the landlord. It has got to be remembered, however, that even though the Legislature must be taken to have known that the words ' resign the land' in Section 10 of the Khoti Settlement Act, Bombay Act I of 1880, were held not to include lands transferred by a tenant without the consent of the landlord, that was in connection with khoti lands in the Ratnagiri district. One could have understood the argument that if in defining khoti nisbat lands in the case of Ratnagiri district the words 'resigning of the tenant' had been used; there would have been force in the argument that the interpretation which was put upon these words in Bamchandra v. Dattatraya was intended by the Legislature. But in this case the words have been used in denning khoti nisbat land in the Kolaba district to which a different enactment applied in which the words have been given a different meaning. In the second instance that it .was not the intention of the Legislature in using the word 'resignation' in defining khoti nisbat land in the Kolaba district to adopt the meaning given 'to the word 'to resign' inRamchandra v. Dattatraya, is quite clear from the fact that when khoti nisbat land has been defined in the case of Ratnagiri district the Legislature has been careful not to use the words 'resign the land'. The definition of khoti nisbat land in the Bombay Khoti Abolition Act, 1949, in the case of Ratnagiri district is : land which in a khoti village before the coming into force of this Act has reverted to the khot under Section 10 of the Khoti Act... The Legislature here could very well have reproduced the words of Section 10 of the Act in defining khoti nisbat land. It could have said for example that khoti nisbat land meant land which in a khoti village before the coming into force of this Act was resigned by the privileged occupant or has lapsed for failure of heirs or other persons entitled thereto, or was forfeited on the occupants failing to pay the rent due in respect thereof. But this would have created a confusion because the words were interpreted in two different senses in the Acts applicable to khoti villages in the two districts. The Legislature has, therefore, been careful and has used the words land which in a khoti village before the coming into force of this Act has reverted to the khot under Section 10 of the Khoti Act. That shows quite clearly that the Legislature did not want to use the words 'resignation of the tenancy' in the sense in which this Court has held that the 'word 'to resign' was used in Section 10 of the Khoti Settlement Act No. I of 1880.