DAULATRAO MALOJIRAO Vs. PROVINCE OF BOMBAY

JUDGEMENT

(1.) On March 17, 1944, judgment was delivered in this appeal by my brother Divatia and myself, by which we held, that as the plaintiff's claim is advanced and rests upon a saranjam tenure, Section 4 of the Bombay Revenue Jurisdiction Act of 1876 is a bar to any relief being granted to the plaintiff against Government relating to the suit lands, in so far as they are classified to be granted or held as saranjam. At the same time, we pointed out, that the appeal raised a very important question so far as the general body of the saranjamdars is concerned and we intimated that Government might desire to have it judicially determined by making a reference under Section 12 of the Bombay Revenue Jurisdiction Act. Accordingly, before passing any order, we gave an opportunity for a reference to be made, and it is such reference which is now before this full bench. The facts sufficiently appear from the judgments delivered on March 17, 1944, and arising out of what was then said Government have referred to us the following questions:- (1) Whether on February 25, 1936, being the date of the sub-divisional grant of the Gajendragad estate, the saranjam tenure in the 60 acres had been destroyed by the adverse possession of the kulkarni and his predecessors-in-title. (2) Whatever be the answer to question (1), what is the effect upon the tenure of the 60 acres as it existed immediately before February 25, 1936 : (a) as a result of the 1936 Resolution, and (b) as a result of the 1937 Resolution.

(2.) In its reference Government have concisely set forth the propositions upon which it relies and it will be convenient to refer to these. They are as follows:- (1) That every saranjam is held by the saranjamdars as a life estate. (2) That Government have a common law right to resume it at pleasure. (3) That the law does not require Government to exercise that right within a particular time. (4) That land held on saranjam tenure does not lose its saranjam character until the tenure is terminated; so long as the tenure subsists, no possession of the land can be adverse to that tenure; on the contrary it would be subject to the tenure. (5) That the character of land held on saranjam tenure does not change by efflux of time. (6) That no period of limitation being provided for the exercise by Government of their right to resume, such right is not extinguished by efflux of time. (7) That the 60 acres of land in dispute were all along held on saranjam tenure, irrespective of whether the saranjamdar or the kulkarni was in possession. (8) That the resolution of 1936 formally resumed and regranted the 60 acres to Daulatrao Malojirao, the plaintiff. Saranjam tenure therefore continued. (9) That by the resolution of 1937 Government finally exercised their common law right of resumption as they found that the land had passed into the possession of non-saranjamdar. Saranjam tenure was therefore extinguished.

(3.) The propositions are a substantial departure from the allegations contained in the written statement filed by Government in the suit; but this is immaterial, because Government has succeeded in this appeal by virtue of the Court's want of jurisdiction, and the issues now before us are circumscribed by the reference. The contention now advanced on behalf of Government is in substance that land held by virtue of saranjam tenure cannot be alienated to a stranger, because the tenure is but an adjunct of and springs from the sovereign right, and only subsists at all by virtue of the will and pleasure of the sovereign power. It is therefore contended that the Crown's paramount right to the overlordship in the land is unassailable by adverse possession by a subject for however long duration. We are indebted to counsel for all the parties for the interesting debate which has taken place before us. The principal authorities to which we have been referred are the cases of Shekh Sultan Sani V/s. Shekh Ajmodin (1891-92) I.L.R. 17 Bom. 431 and Raghojirao V/s. Laxmmrao (1912) 14 Bom. L.R. 1226, P.C.. We have also been referred to the treatise written by Colonel Etheridge in the year 1874 and which is contained as a preface to a book described as: "List of Saranjams", and also to an admirable little book, "the Law of Saranjams", by Mr. N.H. Phadnis. An examination of the authorities, in my judgment, makes it clear that the whole structure of saranjam tenure is founded in the sovereign right, which can only change by conquest or by treaty. So founded, jagirs and saranjams, with the feudal incidents connected with them, are granted or withheld at the will and pleasure of the sovereign power, and, if granted, the fixity of tenure is always subject to interruption and revocation by resumption, be it temporary or absolute in character. No incident normally applicable to private rights between subject and subject can fetter or disturb the sovereign will. Thus adverse possession by a private person for however long duration is nugatory before a paramount resumption or re-grant. But Mr. Coyajee on behalf of the appellant, the saranjamdar, submits that even so the sovereign power has by its legislative constituent bound itself by rules, and that even if historically the basis of the tenure was the sovereign will and pleasure, the rules have created a new quality of durability. In my previous judgment I referred to these rules as being rules of convenience only and a further examination of them and their origin confirms me in that view. These rules which were made in 1898 are made under Rule 10 of Schedule B to Act XI of 1852 and under the second sub-cl, to Clause (3) of Section 10 of Bombay Act VIII of 1863. Rule 10 in the 1852 Act is as follows:- These rules shall not be necessarily applicable to jagirs, and saranjams or other tenures for service to the Crown, or tenures of a political nature, the titles and continuance of which shall be determined as heretofore under such rules as the Provincial Government may find it necessary ;to issue from time to time. And the sub-clause in the 1863 Act provides:- Lands granted or held as saranjam, or on similar political nature, shall be resumable or continuable in such manner, and on such terms, as Government, on political considerations, may, from time to time, see fit to determine.