STATEOF MAHARASHTRA Vs. YESHWANT PANDU BHAVAR

JUDGEMENT

(1.) The above Second Appeal filed by the State of Maharashtra is directed against the judgment and decree passed by the learned Assistant Judge, Ahmednagar, dated April 6, 1971, confirming the decree passed by the Joint Civil Judge, Senior Division, Ahmednagar, dated March 24, 1970, declaring that the respondent- plaintiff was the owner of 3 acres five gunthas of land out of 4 acres 17 gunthas situated on the southern side of the current of the stream adjacent to Survey No. 117 and directing the State Government to give posession of 3 acres 5 gunthas of the land to the plaintiff, dismissing his prayer regarding 1 acre 12 gunthas, giving liberty to the defendent -State Government to lease out that portion of land 1 acre 12 gunthas as per the provisions of r. 41 of the Bombay Land Revenue Rules, 1921, and the provisions in Maharashtra Land Revenue Code,1967, if the Collector of Ahmednagar so chooses to do, and modifying the injunction which the learned Civil Judge had granted restraining the state from selling any portiop of the 4 acres 17 gunthas of the land in question in auction by substituting for 4, acres 18 gunthas in place of 3 acres 5 gunthas. In other words, the learned Assistant Judge confined the injunction in rrspect of 3 acres 5 gunthas of which the plaintiff was declared to be the owner.

(2.) The plaintiff-respondent filed the suit on October 14. 1968 for the declaration and injunction against the State Government making the allegation which may be briefly summarised as follows: It appears that the suit land bearing Survey No 118, originally belonged to one Pandurang Kirshnaji Deshpande. The plaintiff-respondent became the statutory tenant ot land Survey No. 118, which admeasured 6 acres 35 gut has and was assessed at Rs. 6.50. The plaintiff has not made the present owner of buivey No. 117 party to the suit and we do not know to whom the land belongs now. It appears rhat Survey No. 117 is to the south Survey No. 118. One streamlet was passing through these two Survey numbers in west-east direction for a period of 30 years before the suit, and that for the last 7 yeas i. e.: from about 1960 or 1961, this streamlet started passing by the eastern side of Survey No. 118 towards north. Due to change that had occurred direction of the current of the stream some time before 7 years the plaintiffs land of 3 acres 5 guuthas situate OQ the southern side of Survey No 118 was washed awayand new alluvial land admeasuring 4 acres 17 gunthas was formed.

(3.) According to the plaintiff this change in the flow of the stream did not affect other land of Survey No. 117 but affected by reducing cultivable land of Survey No. 118 that belonged to the plaintiffs from 6 acres 35 gunthas to 3 acres 30 gunthas. He also stated in the plaint that during 6-7 years alluvion admeasuring 1 acre 12gunthas was formed on the eastern side of the land.