DATTATRAYA VASUDEV KHATKUL Vs. PARASHRAM ANANT MOGHE

JUDGEMENT

(1.) This appeal involves a question of considerable importance under the Khoti Settlement Act, 1880.

(2.) The facts are not in dispute. The plaintiff and defendants Nos. 2 to 17 are co-sharers in the khotki of the village Kasheli in Ratnagiri District. Defendant No. 1 is a permanent tenant of khata No. 84 in that village. I may mention here that before the amendment of Section 3(4) of the Khoti Settlement Act, 1880, by Section 85(b) of Bombay Act IV of 1913, permanent tenants were styled "occupancy tenants." In accordance with the Recording officer's tharav or decision, defendant No. 1 and his predecessors were paying to the khot that (rent) at three times the survey assessment in respect of their khata No. 84. This went on till defendant No. 2 became the managing khot for 1935-36. Defendant No. 1 then made an application to the Recording-officer requesting that his liability in respect of khata No. 84 should be fixed at survey assessment and local fund cess only. Defendant No. 2 as the managing khot having given his consent to this change, the Recording-officer passed an order on July 30, 1935, granting the request with effect from 1935-1936. The plaintiff became the managing khot for 1936-37, and when he discovered this change, he filed this suit to have it declared that the order of the Recording-officer was void and not binding on him and on defendants Nos. 3 to 17 and that they were entitled to recover that at three times the assessment as before and to have the amendment of the entry in the botkhat cancelled. Defendant No. 1, who was the only contesting defendant, contended that the suit was barred by Section 20 of the Khoti Settlement Act, 1880, that the consent of the managing khot was binding on all the khoti sharers and that the order passed by the Recording-officer was legal and valid. The trial Court upheld all these contentions and gave the plaintiff a decree for the recovery of only Rs. 2-7-9, the unpaid portion of the survey assessment and local fund cess due from defendant No. 1. In appeal the learned Assistant Judge held that the suit was barred under Section 20 of the Act and confirmed the decree of the trial Court.

(3.) Section 20(1) of the Khoti Settlement Act, 1880, provides that every entry in the settlement register or other records made by the Recording officer under Section 16, 17 or 18, and purporting to record- (a) the fact that the interest of any permanent tenant is or is not transferable otherwise than by inheritance, or (b) the liability of each privileged occupant to pay rent of the description and amount entered, shall be conclusive and final evidence of the fact or liability so recorded, subject to the provisions of Section 18 and to the result of any appeal against the entry to the Provincial Government under Sub-section (2). There is no doubt that the entry complained of is made by the Recording-officer in one of the "other records", viz. botkhat, and it purports to record the liability of a privileged occupant to pay rent. It is admitted that no appeal against the order was made to the Provincial Government to have the entry altered. Hence the entry would be conclusive and final evidence of the privileged tenant's liability, provided it was made under Section 16, 17 or 18. The learned Assistant Judge has held that the entry is made under Section 17(a) read with Section 33(c), Rule II(1)(b). This rinding, however, does not fit in with the scheme of the Act.