SOMASHEKHAR SWAMI Vs. BAPUSAHEB NARAYANRAO PATIL

JUDGEMENT

(1.) THE proceedings giving rise to these two appeals were initiated at the instance of the Karnatak Education Society for acquiring certain plots of land under the Land Acquisition Act in 1938 when notifications under the Act were duly issued. THE property sought to be acquired consisted of five survey numbers, 3941, 3942, 8943, 8944 and 3945. In these appeals we are Concerned with three of them, namely 8942, 3943, and 3944. THE compensation amount awarded for the acquisition of these three numbers is Rs. 20,645-9-2; and the question which arises in these proceedings is as to the method of apportionment of this amount between two claimants.

(2.) THESE three survey numbers originally formed part of old survey No.958 which was watan property assigned to the Patil watandar, who is one of the two claimants in this case. In 1865 the said property was sold to the predecessor of the Swami for Rs. 575. The alienee continued in possession of this property until 1915 when an application was made by the watandar to the Collector inviting his attention to the fact that the watan property had gone out of the watandar's family by alienation, and requesting him to pass orders under Section 9 of the Watan Act. On March 14, 1915, the Collector virtually declared that the alienation in favour of the Swami was void, and in 1917 a further order was passed under Sub-section (2) of Section 9 directing the alienee to pay Rs. 60 to the watandar and permitting him to remain in possession. The alienee who was thus permitted to remain in possession of the land after the order of the Collector was passed under Section 9 (2) of the Watan Act is the other claimant in the present proceedings. The learned Judge before whom these claims were made held that the alienee and the watandar were entitled to receive in the proportion of 25 to 75 as their respective shares in the compensation amount awarded. Both the parties feel aggrieved by this order, with the result that the alienee has filed First Appeal No.404 of 1948 and the watandar has filed First Appeal No.374 of 1944.

(3.) IT is thus in reference to these respective rights and liabilities that the question of apportionment in the present case must be determined. In Nowroji v. Special Land Acquisition Officer (1921) 23 Bom. L. R. 1288 this Court was dealing with the claims of the occupants and the khot in regard to bhati lands which had been acquired. The occupants were entitled to remain in possession of the lands on payment of a fixed amount of assessment, and the khot was entitled to recover the said fixed amount and had no right to enhance that amount. IT was held in that case that the occupant and the khot should recover their respective shares in the compensation amount in the proportion of two to one. Taking this decision as the basis for determining the question which arises in these appeals, we have to make some allowance on account of the fact that the person in possession of the land is liable to pay enhanced rent, and the rent in such a case could be enhanced not necessarily within the limits judicially prescribed in regard to permanent tenants. In view of the unusual nature of the rights of the parties in the property in question we do not think it would be fair to adopt the method of valuing the landlord's rights on the basis of capitalising the rent which he is entitled to receive, even though some further addition is made on a similar capitalisation basis in lieu of his right to have the rent increased. We think that in the circumstances of this case it may not be unfair to hold that the watandar and the alienee in possession of the land should receive their shares in the campensation amount in the proportion of 55 to 45. As I have already pointed out, the nature of the holding of the alienee cannot be classified as that of a permanent tenant or an ordinary tenant or an occupant. ITs special features are the result of the provisions of the Watan Act. Similarly the nature of the right of the watandar cannot be easily defined, the limitations in that right being similarly the result of the provisions of the Watan Act. That being so, we must adopt what appears to us to be a fairly reasonable basis in determining the question as to their respective rights in this amount. The question does not admit of an easy answer, and the decisions of the other High Courts on which reliance has been placed by the alienee cannot afford any useful guidance in this particular case. Having given our best consideration to this case we think it would be reasonable on the whole to adopt the proportion which I have just mentioned.