VINAYAK DATTATRAYA JOSHI Vs. GANESH ANANT HASABNIS

JUDGEMENT

(1.) A curious point arises in this second appeal upon which there does not appear to be any authority. The facts are that the plaintiff's father obtained possession of the plaint lands on the 5 March 1895 in execution of an award decree. He then obtained a registered rent-note from one Dnanu Aba on the 22 July, 1895. In July 1897 he brought a possessory suit against Dnanu and got a decree for possession in August 1897. The plaintiff remained in the possession of the land until 1904 and paid assessment. Then the Judge says that the plaintiff was dispossessed by the first Defendant in 1904. How he was dispossessed does not appear. But in 1904-05 the Collector took action under Section 81 of the Bombay Land Bevenut Code as the plaintiff failed to pay assessment for that year. There was a mutation of the Khata of the plaint lands into the name of Shahaji Gondaji who was the plaintiff's co-sharer in the property, on his paying up the arrears due. It was not mentioned in the order that the Collector was acting under the powers granted to him by Section 81. But it seems fairly obvious that he was acting under that section. The learned Judge held that the Collector then forfeited the registered occupant's interest and not his ordinary occupancy rights in the land.

(2.) THE present appellants, defendants Nos. 6-9, who claim through the original first defendant, claimed that the plaintiff's interest in the land was entirely forfeited in 1904, and, that, therefore, as they are in possession, the plaintiff not being able to sue on title must fail. But it must be admitted that the plaintiff had title in 1904, and we cannot find anything in Section 81 to show that, if the Collector takes action under that section, and instead of selling or otherwise disposing of the occupancy rights, forfeits only the registered occupant's interest, the occupancy rights are also forfeited. Where do they go to THE Collector does not sell or otherwise dispose of them. He merely removes the registered occupant's name from the Khata and substitutes the name of somebody else who was already interested in the occupancy. In this case Shahaji Gondaji, the co-sharer of the plaintiff, became the Khatedar responsible to the Government for the assessment. He will be entitled to collect the proper share of assessment from the plaintiff, and if the plaintiff fails to pay then lie can take action under Section 86. But the plaintiff's title remained. It was not sold, it was not disposed of, and, therefore, it is a case of a trespasser coming into possession of land, the owner of which would have twelve years within which to sue to assert his title and recover possession, judgment of the lower appellate Court was right and the appeal must be dismissed with costs.