PURSHOTTAM KHUSHAL SHET GUJAR Vs. GANPATI GOPAL RISBUD

JUDGEMENT

(1.) The first question before us is, whether the lower Courts have erred in holding that the plaintiff has a right to bring the present suits. On this point there is the decision in Ahmed Babu V/s. Ganesh Vishnu A.I.R. 1923 Bom. 462 that the temporary attachment of the village would not affect the other rights which the Khot might have independently of the right of management. Such right of management would, of course, cover acts such as letting out waste or uncultivated lands in the village, which he can do in his capacity as a Khot : see Secretary of State V/s. Wasudeo [1907] 31 Bom. 456. But here we are concerned with a condition against the. alienation of certain Khotinisbat lands without his consent. In my view, such a condition would be part of the terms of the tenancy on which the lands were; held, and the Khot would still be the, landlord in spite of the Government attachment. Section 160, paragraph 1, of the Bombay Land Revenue Code shows that an attachment under that section is; mainly directed to the protection of the public revenue and is without prejudice in other respects to the rights of individuals. No doubt, under paragraph 2 of that section, the Collector is entitled to manage the lands attached and to receive all rents and profits accruing therefrom for the time being, but the words are that the Collector "shall be entitled to" do these acts of management, not that in every case the superior holder is debarred from doing such acts.

(2.) In the present case, it is not alleged or proved that the Collector did, in facts, exercise the power of the Khot, which is-now in question, namely, the power of sanctioning the alienation of Khotinisbat lands. On the contrary, the Record of Eights entry, Exhibit A in appeal, seems, clearly to show that the Collector went on the basis that no alienation required such sanction, so that presumably he never exercised this power. Again, another point to be borne in mind is that the plaintiff is, as held by the Court below, a Watandar Khot, and this gives him higher rights than he might have, if he were an ordinary Khot. In this connexion, I may refer to the remarks in Bhikaiji Ramchandra V/s. Nijamali Khan [1884] 8 Bom. 525 and in Ahmed V/s. Ganesh A.I.R. 1923 Bom. 462. Then we have the further fact that in Ganpati Gopal V/s. Secretary of State A.I.R. 1925 Bom. 44 the attachment had been declared to be illegal, so that the Knot's rights are really unaffected by that attachment. The case, therefore, is entirely different from the one that was under consideration in Ramchandra Narsinha Mahajan V/s. Collector of Ratnaqiri [1870] 7 BN.H.C. 41. Consequently, I think, there can be no doubt that the plaintiff had a right to sue; and this also covers his right to recover mesne profits of the lands, if he succeeds in his suits. It is not shown that the mesne profits of the lands that would otherwise have gone to the Khot have, in fact, been paid to the Collector or any other person.

(3.) The second question in the appeal is, whether the lower Courts have improperly placed the onus of proof in regard to the custom of unrestricted alienation, which is pleaded by the defendants. The question of onus is, no doubt, to some extent, immaterial in a case like this, where in fact evidence was adduced on each side. But, in any case, I do not think that any sufficient ground has been shown for saying that the lower Courts wrongly placed the onus upon the defendants to prove the custom alleged. This follows from judicial authority, which practically amounts to establishing a presumption that the Khot's permission to an alienation of Khotinisbat lands is necessary in any Khoti village in the Kolaba District In Hari V/s. Gangadhar [1916] 18 Bom. L.R. 446 this question of onus was in fact argued; but as it is not referred to in the judgment of Scott, C.J., the contention that the burden of proof should have been put upon the Khot was presumably vetoed by the Court. I think this is supported by the wording of the proviso to Section 38 of Bombay Act I of 1865, which seems to contemplate that the general rule is that a tenant of the Khot has no-unrestricted right of alienation; and the corresponding Section 9 of Bombay Act I of 1880 clearly did put the burden of proof on the tenant.