ANANT KRISHNAJI NULKAR Vs. SECYOF STATE

JUDGEMENT

(1.) This is an appeal from the decision of the District Judge of Khandesh at Dhulia who dismissed the suit. The first three issues raised were: (1) Whether the suit is barred by Section 11, Bombay Revenue Jurisdiction Act. (2) Whether the plaintiff proves that he be came the owner of the land in suit in virtue of the Collector's order. (3) Whether the plaintiff proves that the subsequent demand of any occupancy price and his dispossession, on failure to pay the same were illegal.

(2.) The facts are not in dispute and can be shortly stated. In May 1919, appellant 1 (whom I will refer to as the appellant, appellant 2 being his wife who claims under him by deed of gift), who had been serving in the Indian Medical Service, applied to the Collector for a grant of land under the Land Revenue Code, and on 22 May, 1919, the Collector made an order, which is Ex. 31, in which he granted the appellant certain survey numbers on certain conditions which included freedom from payment of occupancy price and freedom for a limited time from assessment to land revenue. The order was followed by a kabuliyat or agreement Ex. 41. The plaintiff entered into possession and spent a certain amount of money on cultivating the land. On 6 December 1921, the Commissioner who is the superior officer of the Collector appears to have taken the view that the Collector's order was wrong and he framed a document entitled "order" which is Ex. 34. In that document after stating the effect of the Collector's order and that the order was illegal and that the Commissioner was not inclined to withdraw the grant from the appellant altogether, he directed that the proper occupancy price according to the full market value of the land on the date on which the grant was originally made, i.e., in May 1919, should be recovered from the appellant and the ordinary land revenue (consolidated) should be recovered from the year 1919-20, and he directed that the appellant should be informed of the issue of the orders. The document is addressed to the Collector and there is nothing to show that the appellant ever saw the document. On 15 December 1921 the appellant was informed (Ex. 35) of the Commissioner's order to recover from the appellant the full occupancy price of the land according to the full market value on the date on which the grant was made, that the value of the land on. The date on which the grant was, made was estimated at Rs. 12,075, that the consolidated land revenue from the year 1919-20 came to Rs. 355-3-3 and the local fund on Rs. 12,075 came to Rs. 754-11-0 and the notice finished up: Thus the total amount you have to pay is Rs. 13,184-13-3. You are therefore requested 10 remit the amount into the Government Treasury, within a period of one month,

(3.) The only order of the Commissioner served on the appellant was an order to pay money simpliciter, and was not an order to pay money or go out of possession of the land. The appellant paid under protest the land assessment, but he did not pay the sum charged against him as occupancy price. On 29 August 1922, an order was made by the Assistant Collector (Ex. 38) that the appellant having been served with notice to pay up the occupancy price of the land in question and the period of notice having expired, the lands were thereby declared to be forfeited to Government. The forfeiture of the land for non payment of occupancy price is justified by Government Under Section 62, Bombay Land Revenue Code which provides that occupancy price shall be recoverable as an arrear of land revenue. On 23 September 1923 the appellant was actually dispossessed. The appellant did not appeal from the order of the Commissioner of 6 December 1921, and he did not present an effective appeal from the order of the Assistant Collector of 29 August 1922.