GANESH KANA KALOTA Vs. STATE OF M.P.

JUDGEMENT

(1.) THE facts of the case, as disclosed from the record, are as follows: - One Kana was the Patel of village Dasri, Tahsil Depalpur, District Indore, and was granted 2.06 Bighas of land as Khotidar Patel. A Khotidar Patel, as defined under section 64, Explanation 4, of the Indore Land Revenue and Tenancy Act, means the Patel of a village, whom, as Inamdar, land called Khoti, may be granted by the Maharaja as remuneration for his continuing in service and, in recognition of his position as Patel. Kana, however, held land as half -Khoti which means that only half the rent was payable by him for the Khoti land. After the death of Kana, his eldest son Ganesh, the present applicant, started acting for him as Wasuli Paid, and enjoyed the Khoti land. It was, however, on 27 -12 -1956, after about 20 years of the death of Kana, that the Patwari of the village made a mutation report for substituting the name of Ganesh in place of his deceased father Kana. The Tahsildar made a summary enquiry and on 30 -4 -1953 recommended to the Sub -Divisional Officer that the necessary mutation regarding the Khoti land be made in favour of the applicant. The Sub -Divisional Officer, in his turn, and without hearing the applicant, reported to the Collector on 24 -6 -1958 that keeping in view the provisions of section 134, M.B. Land Revenue and Tenancy Act, applicant's name cannot be substituted as Inamdar, that the land may be made Khalsa and treated as pucca tenancy land on full rent. The relevant portion of the Sub -Divisional Officer's report dated 24 -6 -1958 is as follows: - ... ... .... ..... à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¤ ¾Ã  ¤ °Ã  ¥ Ã  ¤ ¥Ã  ¥ € à ¤ -à ¤ £Ã  ¥ ‡Ã  ¤ ¶ à ¤ ¨Ã  ¥ ‡ à ¤ ‰Ã  ¤ •Ã  ¥ Ã  ¤ ¤ à ¤ ­Ã  ¥ ‚à ¤ ®Ã  ¤ ¿ à ¤ ¬Ã  ¤ ¾Ã  ¤ ¬Ã  ¤ ¤ à ¤ •Ã  ¥ ‹Ã  ¤ ˆ à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¤ ®Ã  ¤ ¾Ã  ¤ £ à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¤ ¸Ã  ¥ Ã  ¤ ¤Ã  ¥ Ã  ¤ ¤ à ¤ •Ã  ¤ ¿Ã  ¤ ¯Ã  ¤ ¾ à ¤ ¨Ã  ¤ ¹Ã  ¥ €Ã  ¤ ‚ | à ¤ ¸Ã  ¤ ¬Ã  ¤ ¬ à ¤ ¨Ã  ¤ ¿Ã  ¤ ¯Ã  ¤ ®Ã  ¤ ¾Ã  ¤ ¨Ã  ¥ Ã  ¤ ¸Ã  ¤ ¾Ã  ¤ ° à ¤ ¸Ã  ¤ ¬Ã  ¤ ² à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¤ ®Ã  ¤ ¾Ã  ¤ £ à ¤ •Ã  ¥ ‡ à ¤ †Ã  ¤ ­Ã  ¤ ¾Ã  ¤ µ à ¤ ®Ã  ¥ ‡Ã  ¤ ‚ à ¤ ¤Ã  ¤ ¥ à ¤ ®. à ¤ ­Ã  ¤ ¾. à ¤ •Ã  ¥ ƒÃ  ¤ ·Ã  ¤ •Ã  ¤ ¾Ã  ¤ §Ã  ¤ ¿Ã  ¤ •Ã  ¤ ¾Ã  ¤ ° à ¤ µÃ  ¤ ¿Ã  ¤ §Ã  ¤ ¾Ã  ¤ ¨ à ¤ §Ã  ¤ ¾Ã  ¤ °Ã  ¤ ¾ 134 à ¤ •Ã  ¥ ‹ à ¤ ²Ã  ¤ •Ã  ¥ Ã  ¤ · à ¤ ®Ã  ¥ ‡Ã  ¤ ‚ à ¤ °Ã  ¤ -à ¤ ¤Ã  ¥ ‡ à ¤ ¹Ã  ¥ Ã  ¤  à ¤ ¸Ã  ¤ ¦Ã  ¤ ° à ¤ ­Ã  ¥ ‚à ¤ ®Ã  ¤ ¿ à ¤ †Ã  ¤ §Ã  ¥ € à ¤ œÃ  ¤ ®Ã  ¤ ¾ à ¤ -à ¥ ‹Ã  ¤ ¤Ã  ¥ € à ¤ ‡Ã  ¤ ¨Ã  ¤ ¾Ã  ¤ ® à ¤ ¶Ã  ¥ Ã  ¤ °Ã  ¥ ‡Ã  ¤ £Ã  ¥ € à ¤ ®Ã  ¥ ‡Ã  ¤ ‚ à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¤ ¤Ã  ¤ ¿Ã  ¤ ªÃ  ¤ ¾Ã  ¤ ²Ã  ¤ ¿Ã  ¤ ¤ à ¤ ¨Ã  ¤ ¹Ã  ¥ €Ã  ¤ ‚ à ¤ ¹Ã  ¥ ‹ à ¤ ¸Ã  ¤ •Ã  ¤ ¤Ã  ¥ € | à ¤ ...à ¤ ¤: à ¤ ¸Ã  ¤ ¦Ã  ¤ ° à ¤ ­Ã  ¥ ‚à ¤ ®Ã  ¤ ¿ à ¤ -à ¤ ¾Ã  ¤ ²Ã  ¤ ¸Ã  ¤ ¾ à ¤ ®Ã  ¥ ‡Ã  ¤ ‚ à ¤ ¶Ã  ¥ Ã  ¤ ®Ã  ¤ ¾Ã  ¤ ° à ¤ •Ã  ¤ °Ã  ¤ •Ã  ¥ ‡ à ¤ ªÃ  ¥ Ã  ¤ °Ã  ¥ ‡ à ¤ ²Ã  ¤ -à ¤ ¾Ã  ¤ ¨ à ¤ ªÃ  ¤ ° à ¤ ªÃ  ¤ •Ã  ¥ Ã  ¤ • à ¤ •Ã  ¥ ƒÃ  ¤ ·Ã  ¤ • à ¤ ¶Ã  ¥ Ã  ¤ °Ã  ¥ ‡Ã  ¤ £Ã  ¥ € à ¤ ®Ã  ¥ ‡Ã  ¤ ‚ à ¤ ¦Ã  ¤ °Ã  ¥ Ã  ¤ œ à ¤ •Ã  ¥ € à ¤ œÃ  ¤ ¾Ã  ¤ ¨Ã  ¤ ¾ à ¤ ‰Ã  ¤ šÃ  ¤ ¿Ã  ¤ ¤ à ¤ ¹Ã  ¥ ˆ ... .... .... ...

(2.) THE Collector simply 'approved' the recommendation of the Sub -Divisional Officer, vide his endorsement dated 28 -6 -1958. It may be observed here that while the matter was before the Tahsildar, the applicant was called upon to produce the Sanad and other relevant documents showing the basis and conditions on which his father had been granted the Khoti in question. The Patwari was also called upon to submit his report in the matter. The Tahsil report does not disclose as to what compliance was made by the applicant of this order, but it appears that certain witnesses were examined and an extract copy of the Wajib -ul -arz was brought on record by the Tahsildar before he submitted the case to the Sub -Divisional Officer. Against the order of the Collector dated 28 -6 -1958, the applicant went up in appeal to the Commissioner, who declined to interfere on the ground, inter alia, that the right (à ¤ ¸Ã  ¥ Ã  ¤ µÃ  ¤ ¤Ã  ¥ Ã  ¤ µ) of the applicant on the land had not been terminated by the Sub -Divisional Officer and it was still open to him to take further action by starting fresh proceedings in accordance with State Government's orders on the subject. Against the order of the Commissioner the applicant has come up in revision.

(3.) THE case before the Tahsildar was one of mutation, namely, whether the applicant Ganesh was entitled to get his name mutated as Khotidar Patel in place of his deceased father. It may be noted that under section 104(1) of the Indore Tenancy Act, mutation proceedings could be started only at the instance of the Patwari. Section 104 ibid does not provide for the initiation of mutation proceedings at the instance of the deceased's successor or any other claimant, as was later provided under section 86(2) of the M. B. Land Revenue and Tenancy Act. It was, therefore, no fault of the applicant if the Patwari took as many as 20 years to bring the death of Kana to the notice of the authorities and put in his report for mutation. The Collector dismissed the claim of the applicant on the ground that the applicant had not produced any evidence in regard to the suit land. (à ¤ ‰Ã ¤ •Ã ¥ Ã ¤ ¤ à ¤ ­Ã ¥ ‚à ¤ ®Ã ¤ ¿ à ¤ ¬Ã ¤ ¾Ã ¤ ¬Ã ¤ ¤ à ¤ •Ã ¥ ‹Ã ¤ ˆ à ¤ ªÃ ¥ Ã ¤ °Ã ¤ ®Ã ¤ ¾Ã ¤ £ à ¤ ªÃ ¥ Ã ¤ °Ã ¤ ¸Ã ¥ Ã ¤ ¤Ã ¥ Ã ¤ ¤ à ¤ •Ã ¤ ¿Ã ¤ ¯Ã ¤ ¾ à ¤ ¨Ã ¤ ¹Ã ¥ €Ã ¤ ‚.) He has not made it clear as to what evidence or documents the applicant was expected to produce. There is no mention in the Tahsildar's report of the failure of the applicant to produce relevant evidence. On the other hand, the statements of certain witnesses and the report of the Patwari are on record, but the Sub -Divisional Officer took no notice of this evidence. It is possible that the original Sanad granted to applicant's father may not be available; but in the absence of primary evidence, it was open to the Sub -Divisional Officer to rely on secondary evidence, unless he had reasons to discard it. In any case, it is not correct to say that the applicant did not produce any evidence at all in regard to his claim on the land. No enquiry was made as to how the applicant himself came to act as Patel in place of his father and how was it that he continued to do so for more than 20 years. The applicant should have been asked to produce the order of his own appointment and his claim considered in the light of facts that might have thus been disclosed. It would be strange to think that the applicant should have acted as Patel for all these long years without any sanction from competent authorities. In fairness, the Sub -Divisional Officer and the Collector should have taken pains to ascertain full facts from the Government records as well. It would not be just and proper to cast all the burden on the applicant in a case like this and throw out his claim just because he may not be in a position to produce the records which may not reasonably be in his possession.