GOVINDJI Vs. DEVJI

JUDGEMENT

(1.) THIS is an appeal by the plaintiff and arises out of suit instituted by him for declaration of title to certain piece of land and for recovery of possession thereof. 2. The plaintiff alleged that he had purchased an open piece of land from the Jagir-dar of Thikana Thakarda on payment of Rs. l6l/- as consideration, and the Thakur granted a Parvana evidencing the transfer. The plaintiff further alleged that with the object of constructing a house on the land, he had collected stones and stored them on the land in question and made an enclosure but the defendants took forcible possession thereof and collected manure on it. The plaintiff accordingly sued the defendants for recovery of possession of the piece of land. The suit was, in other words, a suit for eviction on the ground of possession and dispossession. 3. The defendants resisted the suit. Their plea was that the land had been settled with them by the local Panchayat and that they had been in possession of the land ever since 1949, where they used to store manure. 4. The trial court in its fairly elaborate judgment held in favour of plaintiff. It found that both title and possession, had been established by the plaintiff. On the question of title, it took the view that Thikana Thakarda was a Tazimi Thikana and, therefore, the Jagirdar could issue pattas as authorised under the Dungapur State Notification No. 42 (wrongly numbered as 41 in the judgment) dated 10th July, 1946, published in Dungarpur Rajya Patra dated 5th August, 1946. The court also found that on the admission of the Jagirdar, a sum of Rs. 161/- had been paid by the plaintiff for the transfer of the land in question. On these findings, it held that the plaintiff had acquired a good title to the disputed land. On the question of possession the court held that the act of storing m?mire by the defendants on the disputed land amounted merely to isolated acts of trespass and, in any case, did not constitute adverse possession so as to give title to the plaintiff. The court, therefore, decreed the plaintiff's suit. 5. On appeal, the learned Senior Civil Judge has reversed the decision of the trial court. The main ground on which the learned Senior Civil Judge decided the case was that no valid transfer could be effected in favour of the plaintiff by the Thikanedar in the absence of a registered deed; the consideration of the transfer being above Rs. 100/ -. The learned Senior Civil Judge held that the Transfer of Property Act would apply to such a transfer and since the document was not registered, it could not be admitted in evidence under sec. 17 of the Registration Act, and no title could be founded on such a document. He accordingly found that the plaintiff had failed to establish title and, therefore, the suit should fail on that account. He did not deal with the question of possession, because he thought that it was unnecessary to do so, though he appears to have remarked that admittedly the defendants were in possession of the disputed land from at least 1949. 6. Mr. Desai for the appellant has challenged the decision of the learned Senior Civil Judge. He contends that all the lands under the Thikana belonged to the State and any settlement made by the Thikanadar was a settlement made by the State itself. Consequently, it should be held that the Thikanadar was also exempted under sec. 90 (d) of the Registration Act from executing any registered patta in order to effect such a transfer. In our opinion, there is some misconception on the point. Sec. 90 (d) of the Registration Act ofcourse makes an exemption in favour of the Government or the State, but unless it is shown that the Thikanadar also enjoyed a similar exemption, it could not be assumed that merely because the State granted a right of making settlement to the Thikanadar, the Thikanadar on that account enjoyed any such exemption under the law. 7. Notification No. 42 dated 10th July, 1946, of the Dungarpur State to which reference has been made in the judgment of the trial court was sent for by us. In that notification, all that we find is that the Thikanadars under the State were exempted from obtaining any previous sanction before making settlement of open lands within the ambit of their Jagir or Thikana. 8. The relevant language of the said Notification is as follows: *** 9. Thus we find that the exemption referred to in the Notification was only in respect of obtaining sanction for making settlement of open lands within the Jagir. There is nothing in the notification from which it can be spelled out that the Jagirdar was delegated the power, even if any such delegation was permissible, to claim the same privileges of making settlement under the law as the State itself possessed, namely, an exemption under sec. 90 (d) of the Registration Act. The Jagirdar was obviously as much subject to that limitation in making settlements as any other individual under the Registration Act. The formality of having previous sanction from the State was only dispensed with, but otherwise, the Jagirdar had to conform to the law which applies to all cases of such transfers in matters of execution of documents or registration thereof. We are, therefore, unable to accept the argument of the learned counsel for the appellant that the Jagirdar also enjoyed an exemption under sec. 90 (d) of the Registration Act. In our opinion, therefore, the decision of the Senior Civil Judge appears to be correct that in the circumstances of this case, a registered document was necessary in order to convey a valid title to the plaintiff. 10. On the question of possession, we seem to be very much in favour of the finding of the trial court; and the learned Senior Civil Judge obviously has not fully applied his mind to the matter, since he thought that it was unnecessary to go into that question. It is true that the plaintiff in an action of this nature cannot succeed merely by proving his possession of the lands in question, even assuming that he obtained possession in 1955 by virtue of a Patta, which was issued to him. It is a suit in eviction? and in order to succeed, he had to prove both title and possession and since he has been unable to establish his title to the disputed land, we cannot grant him any relief. 11. On the whole, therefore, the judgment of the learned Senior Civil Judge, Udaipur, appears to be correct and we accordingly affirm the judgment and dismiss the appeal, but in the circumstances, the parties would bear their own costs. .