KACHARU BABAN KOTHAWALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is plaintiff's second appeal involving interesting points of law. The properties in dispute are agricultural lands survey Nos. 89 and 90 situated in village Sangavi-Surya in Taluka Parner. Survey No. 89 measures 3 acres 29 gunthas and is assessed at Rs. 5-2-0. It is a Bagayat land called as 'malai. ' Survey No. 90 measures 12 acres 23 gunthas and is assessed at Rs. 3-12-0. It is a Jira-yat land known as 'wadi'. The plaintiffs are in possession of the suit lands for a number of years. According to them, they and their ancestor have been in possession of the lands for over 60 or 70 years. One Waman Raghunath Kulkarni was shown In the record of rights extracts as the occupant of the said lands. The plaintiffs are shown in the record of rights as tenants of the said lands.

(2.) THE Talathi of the village reported to the Taluka Magistrate of Parner that the occupant Waman Raghunath was not known to be living and the lands were intestate property. The report of the Tala- thi was received by the Taluka Magistrate on July 26, 1960 and the Taluka Magistrate in his turn made a report to the District Judge, Ahmednagar on October 15, 1962 purporting to act under Section 10 of Bombay Regulation VIII of 1827 and Section 58 of Bombay Act IV of 1890. The report was sent by him, through the Sub Divisional Magistrate, Parner Division, Ahmednagar. On October 25, 1962. the Assistant Collector, Parner Division, Ahmednagar submitted a report to the Collector of Ahmednagar with the recommendation that the papers may be forwarded to the District Judge, Ahmedna-gar for further orders and the Collector, Ahmednagar in his turn on November 3, 1962 forwarded it to the District Judge, Ahmednagar for necessary action. The learned District Judge before whom the report was registered as Parner Intestate Case No. 2 of 1962 passed the following order on November 16, 1962:

(3.) COMING to know of this order on December 7, 1962, the plaintiffs made an application for review of the order before the District Judge and the said review application is still pending. On that review application, the District Judge ordered stay of the recovery of possession and I am told that the plaintiffs are still in possession of the lands in dispute. The plaintiffs also gave a notice under Section 80 of the Civil Procedure Code to the Collector of Ahmednagar and to the Nazir of the suit which they intended to file challenging the validity of the order dated November 16, 1962 passed by the District Judge. In the said notice they contended that they were in possession of the lands from the time of their forefathers for over 60 to 70 years and that they had paid the assessment every year and enjoyed the land as owners openly and without any obstruction, from anybody for many years. They further stated that their names were shown as tenants of the lands and the name of Waman Raghunath Kulkarni was shown as occupant, but they did not know who Waman Raghunath Kul- karni was and his whereabouts or even whether he was living or dead. They, therefore, contended that the entry In the record of rights showing Waman Raghunath Kulkarni as occupant was a bogus entry and the village officer failed to delete it although in an enquiry made by the District Deputy Collector in the year 1945, the village officer was directed to delete the name of Waman Raghunath Kulkarni and enter the names of the plaintiffs. It was also stated in the notice that the conditions precedent mentioned in Sections 9 and 10 of the Bombay Regulation VIII of 1827 did not exist in the case at the date of the order of the appointment of the Administrator and hence the District Judge had no jurisdiction to appoint an Administrator because the properties were already in the actual possession of the plaintiffs.