MADHAVRAO SITARAM KOHALI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This revision application is directed against the order passed by the Civil Judge, Senior Division, Bhandara, in Special Civil Suit No. 14 of 1964, directing the plaintiff to pay ad valorem court-fee on Rs. 15,16,500 holding that the suit is under Section 6 (iv) (d) third proviso of the Court-Fees Act.

(2.) The suit was commenced on 17th of Aug. 1963 and was preceded by a litigation between the defendant and plaintiffs which went up to the Supreme Court. The plaintiffs claimed that they were the descendants of one Chimna Patel and Kolhu Patel of Tahsil Sakoli, District Bhandara; that they held lands described in plaint para 1 and that they are persons holding interest of their ancestors Chimna Patel and Kolhu Patel; that these two persons were their ancestors. According to them, in this Tahsil Sakoli somewhere in the 17th Century their ancestors constructed a tank called the 'Navegaon Bandh' at a cost of about a lakh of rupees and the said tank was their private property; that from this tank they used to take water to their crops of sugarcane and rice and also used to enjoy the tank waters and exploit it for fishery purposes as well as lease it out for cultivation of Singadha; that this was being used and enjoyed by them peacefully and without any hindrance or obstruction for the last 300 years; that this was their private property viz., of their ancestors. According to the plaintiffs, this lake was recognised in the First Settlement Report of the year 1867. A mention of their ownership over this tank, according to them, also finds place in the Settlement Report as also later in the gazetteer compiled by Russel. Extensive references were made in the plaint to the extracts from these two documents. The plaintiffs then referred to the fact that in the Government records the lake was recorded in the names of their ancestors and their title to that lake was established and acknowledged in all the subsequent revenue documents; that they were held in possession all along and the lake thus was their private property viz., of their ancestors before them and thereafter of the plaintiffs. Further, according to the plaintiffs, they were recognised as proprietors under the Land Revenue Code of the year 1881 and 1917. Their interest in the properties and the lake as proprietors thereof and in the lake being their private property was not destroyed.

(3.) Then comes a reference to the Madhya Pradesh Abolition of Proprietary Rights Act, 1950. According to the plaintiffs, the said Act does not apply and its provisions did not affect the property of the plaintiffs in this lake which was their private property, and was not a proprietary right as contemplated by the provisions of the said Act. These provisions did not touch this kind of property, according to the plaintiffs, which was a tank. According to them, this Act deals with ponds and tanks. The plaintiffs submitted that it does not deal with lakes, which apparently according to the plaintiffs, was an artificially constructed lake as references to it will go to show both in the Gazetteer, as well as in the 1867 Settlement Report. The plaintiffs further alleged that the defendants, acting or purporting to act under the Madhya Pradesh Abolition of Proprietary Rights Act, sought to take over the possession of this lake and took certain actions against the plaintiffs, which actions, according to them, purporting to be under that Act, are illegal, void and had no effect and did not destroy or extinguish the proprietary rights of the plaintiffs in the lake known as 'Navegaon Bandh'; that the plaintiffs' predecessor Sitaram Patel took out a proceeding by way of writ petition under Article 226 of the Constitution on 14th July 1952; that prior to that he had taken out proceedings before the Revenue Authorities, contending that the lake was not subject to the provisions of the Act. As the writ petition was disposed of after an observation that the question involved raises complicated issues of various facts and law, the plaintiffs commenced the present suit.