Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
PETITIONER:
SHYAMSUNDER TIKAM SHET & ANR.
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANR.
DATE OF JUDGMENT:
15/10/1969
BENCH:
RAMASWAMI, V.
BENCH:
RAMASWAMI, V.
DUA, I.D.
CITATION:
1970 AIR 381 1970 SCR (2) 801
1970 SCC (3) 217
ACT:
Bombay Khoti Abolition Act (6 of 1950), s. 12-Khoti-Rights
in forest and waste lands.
HEADNOTE:
A Khoti in the district of Kolaba is only a hereditary
farmer of land ’revenue and is entitled to hold a village as
Khoti on his entering every year into the customary
Kabulayat. The presumption is that forest tracts and old
waste belong to Government unless the presumption is
displaced by positive evidence that Government has granted
rights in any particular tract or piece of land or has
consciously allowed adverse rights to grow therein.
Therefore, in the absence of a sanad or a deed or a grant
granting proprietary rights over the soil a Khoti is not a
proprietor of the lands constituted as reserved ’forest in
the Khoti village and is not entitled to any proprietary
rights in the uncultivated or forest land.
IN the present case the Special Deputy Collector (Khoti)
Kolaba, directed certain amounts to be paid to the
appellants for their share of compensation for Khoti rights
in respect of reserved forest and unassessed land in a
village under s. 12 of the Bombay Khoti Abolition Act, 1949.
The Maharashtra Revenue Tribunal, in appeal, set aside the
order and remanded the case for retrial stating the various
points for decision, one of which was, ’whether the
appellants prove that they are the proprietors of the lands
in the village or in the lands attached as a reserved forest
to the said village’.
In appeal to this Court,
HELD : The appellants should be given sufficient opportunity
by the Special Deputy Collector for proving by oral and
documentary evidence that they had proprietary rights in the
status of Khoti and then dispose of the matter according to
the law relating to the rights of a Khoti. [808 G-H]
Tajubai v. Sub-Collector of Kulaba, 5 Bom. High Court
Reports 132, Ganpati Gopal Risbud v. The Secretary of State
for India, 26 Bom. L.R. 754, Kodoth Ambu Nair v. Secretary
of Stale for India, 51 I.A. 257 and Sadashiv Parshram Risbud
v. Secretary of State for India,..20 Bom. L.R. 141,
referred to.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 744 of 1966.
Appeal by special leave from the judgment and order dated
February 25, 1965 of the Maharashtra Revenue Tribunal, Bom-
bay in No. Rev. A. 40 of 1962.
S. T. Desai and Naunit Lal, for the appellant.
G. L. Sanghi and S. P. Nayar, for the respondents.
802
The Judgment of the Court was delivered by
Ramaswami, J. This appeal is brought by special leave from
the judgment of the Maharashtra Revenue Tribunal, Bombay in
Revenue Appeal No. 40 of 1962 whereby the Tribunal set aside
the award of the Special Deputy Collector, (Khoti), Kolaba
under s. 12 of the Bombay Khoti Abolition Act, 1949
directing the amount of Rs. 837.94 to be paid to the
appellants for their share of Rs. 0-12-1 1/3 share in
village Kotheri, Taluka Mahal, District Kolaba and remanded
the case for retrial stating the points for decision ’by the
Special Deputy Collector.
On October 9, 1950 the appellants made an application
before the Collector of Kolaba for obtaining compensation
for Khoti rights in respect of reserved forest and
unassessed lands in accordance with the provisions of the
Bombay Khoti Abolition Act, 1949 (Act No. VI of 1950)
(hereinafter referred to as the Act). In the application,
the appellants stated that the village Kotheri in Taluka
Mahal was a Khoti village of Pat (leasehold) and that the
appellants had a Khoti share of Rs. 0- 12-1 1/2 in the
village. The appellants said that the total compensation
which they claimed for the entire village came to Rs.
17,615/- and that the share of Rs. 0-12-1 1/3 came to Rs.
13,333-9-0. The appellants further claimed a sum of Rs.
7,480/- in respect of ’loss under the reserved forest (74
acres 32 gunthas), and a sum of Rs. 6,850/- being the one-
third share of "the price at the present market rate of the
trees etc., that at present stand in the reserved forest".
On January 31, 1962 the appellants filed before the Special
Deputy Collector, Kolaba a preliminary statement. In that
statement the appellants contended that the Khots used to
guard the forest in their proprietary rights in about the
year 1860 A.D. and that the said land had been taken to the
reserved forest. The appellants further contended that they
had a partnership with the State in respect of forest
income, that is, in the division of agricultural produce and
that the "partnership in the forest income has not been abo-
lished under the Khoti Abolition Act and the partnership is
still subsisting." The appellants said that "the question of
determining compensation for the forest partnership cannot,
therefore, arise." On May 15, 1962 the Special Deputy
Collector (Khoti) Kolaba made his award granting a sum of
Rs. 837-94 as compensation. Aggrieved by the award the
appellants preferred an appeal before the Maharashtra
Revenue Tribunal being Revenue Appeal No. REV. A. 40 of
1962. On September 16, 1963 the appellants submitted before
the Tribunal their written arguments. On September 18,
1964, November 21, 1964 and February 1, 1965 the appellants
filed before the Tribunal further supplementary arguments in
writing. On February 21, 1965 the Tribunal delivered its
judgment holding that the Khoti in the Kolaba cannot
803
tary rights in the village or in the reserved forest unless
he proves that he has separate sanad or grant conveying to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
him these proprietary rights. The Tribunal, however, took
the view that the appellants were not bound by any
compromise decree and the Special Deputy Collector has dealt
with the matter in a perfunctory manner. The Tribunal
therefore, set aside the award and remanded the case for
retrial setting out the points to be decided by the Special
Deputy Collector.
The Bombay Khoti Abolition Act, 1949 came into force with
effect from April 12, 1959. Section 2(1) (iv) of the Act
defines the word "Khot" as including a mortgagee lawfully in
possession of a Khotki. Section 2(1) (vii) of the Act
defines the words "Khoti Khasgi land" as follows
"(a) in the Ratnagiri District Khoti land held
by and in possession of a Khot other than
Khoti nisbat land and land held by a
privileged occupant as defined in the Khoti
Act;
(b) in the Kolaba District-
(i) land which is entered in the Khot’s own
name as Khoti or in that of a co-sharer in a
khotki in the records of the original survey;
and
(ii) land acquired since the original survey
by the Khot by purchase or other lawful
transfer otherwise than in his capacity as a
Khot;"
Section 2 (1) (viii) defines the words "Khoti
land" as follows
’Khoti land’ means ’,and in respect of which a
Khot had, as such, any right or interest in
the district of Ratnagiri according to the
provisions of the Khoti Act and in the
district of Kolaba according to the custom of
the tenure;"
Section 3 of the Act provides for the
abolition of the Khoti tenure and states
"3. With effect from and on the date on which
this Act comes into force,-
(1) the Khoti tenure shall, wherever it
prevails in the districts of Ratnagiri and
Kolaba, be deemed to have been abolished; and
5SupCiNP)/70--6
804
(2) save as expressly provided by this Act,
all the incidents of the said tenure shall be
deemed to have been extinguished,
notwithstanding any law, custom, or usage or
anything contained in any sanad, grant,
kabulayat, lease, decree or order of any court
or any other instrument."
Section 10 deals with the right to trees and
states
"The rights to trees specially reserved under
the Indian Forest-Act, 1927, or any other law
for the time being in force except those the
ownership of which has been transferred by
Government under any contract, grant or law
for the time being in force shall vest in Gov-
ernment."
Section 12 of the Act before its amendment by
the Maharashtra Act 43 of 1963 stood as under
:
"(1) If a khot or any other person is
aggrieved by any of the provisions of this Act
as extinguishing or modifying any of his
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
rights in land and if such person proves that
such extinguishment or modification amounts to
transference to public ownership of any land
or any right in or over such land, such
person may apply to the Collector for
compensation.
(2) Such application shall be made in the
form prescribed by rules made under this Act
on or before the 3 1 st day of March, 1952.
(3) The Collector shall after holding a
formal inquiry in the manner provided by the
Code award such compensation as he deems
reasonable and adequate;
Provided that-
(a) the amount of compensation for the-
extinguishment of the right of reversion in
lands in a Khoti village in the district of
Ratnagiri shall not exceed the amount
calculated at the rate of Rs. 2 per 100 acres
of such land;
(b) the amount of compensation for the
extinguishment of any right to appropriate any
uncultivated and waste lands not appropriated
by any khot and not entered in the revenue or
survey records as khoti khasgi immediately
before the 1st day of August, 1949, shall not
exceed the amount calculated at the rate of
Rs. 5 per 100 acres of such land
Provided further that in the case of the
extinguishment or modification of any other
right of a khot or any
805
right of any other person the Collector shall
be guided by the provisions of sub-section (1)
of section 23 and section 24 of the Land
Acquisition Act, 1894 :
Provided also that if any question arises
whether any land is dhara, khoti khasgi or
khoti nisbat or is held by a permanent tenant
or other tenant, the Collector shall after
holding a formal inquiry in the manner
provided by the Code decide the question.
(4) Subject to the provisions of sub-section
(5), the award or decision of the Collector
shall be final.
(5) Any person aggrieved by the award or
decision of the Collector may appeal to the
Bombay Revenue Tribunal constituted under the
Bombay Revenue Tribunal Act, 1939."
The Act was amended by the Maharashtra Act 43 of 1963 by
which payment of compensation was provided to any loss of
share in the forest revenue and the Amending Act came into
force on October 6, 1963 and it was provided that the claim
for compensation can be entertained upto March 31, 1964.
On behalf of the appellants Mr. S. T. Desai did not press
the argument that the Act is ultra vires of the Constitution
of India or that the Act did not apply to the village of
Kotheri or to the survey plots in dispute. Learned counsel
said that the appellant should be given sufficient
opportunity of proving by oral and documentary evidence that
they had proprietary rights in survey plots 130 and 132 of
Mau a Kotheri in the status of kothi.
The legal position is well-established that khotis in the
district of Kolaba are hereditary farmers of land revenue
and are entitled to hold villages as khoti on their entering
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
every year into the customary- kabulayat. According to
Molesworth’s Dictionary ’khot’ means :
" a renter of a village, a farmer of land or
revenue, a farmer of the customs, a contractor
or monopolist; an hereditary officer whose
duty it is to collect the revenue of the
village for Government, also an officer
appointed for this office; a tribe of Brahmins
in the Southern Konkan."
In Tajubai v. Sub-Collector of Kulaba(1) it
was held by the majority of the Full Bench
that the khotis have no proprietary right in
the soil of their village but only hereditary
right to farm the
(1) 5 Bom. High court Reports 132.
806
revenue and that if the "khot’s right is the
hereditary farming of the revenue, the living
principle of that right would not be property
inherent in the khot, but a perpetually
running contract with the State." At p. 149
Newton J., observed in the course of his
judgment :
"Do these facts e establish more than is
admitted, namely, that the plaintiff had an
hereditary right of farming the half of the
village of Pegode, as long as, she continued
annually to enter into the customary
,agreement ? Do they prove that she as khot
had any such proprietary interest in the
village, as would authorise her to claim
restitution of the half-share unconditionally,
after failure during several years to
discharge the office of khot ? We think not.
We think, further, that some of the above
facts militate against the title alleged by
the plaintiff."
In Ganpati Gopal Risbud v. The Secretary of
State for India(1) the Bombay High Court
reiterated that khots in the district of
Kolaba are hereditary farmers of the revenue
and are entitled to hold their villages as
Khoti on their entering every year into the
customary Kabulayats. At p. 768 Macleod C.J.
stated
"The relationship between the Khot and the
Government, to my mind, is perfectly clear.
As stated in Mr. Candy’s report it is
indubitably established that a Khot’s interest
in his village is limited, not absolute; he
possesses in some measure a proprietary right;
in fact he is an occupant with all the rights
and liabilities affecting such a status. The
Khot has to secure to Government the payment
of the village revenue, while the village
lands which he has to manage in accordance
with the restrictions mentioned in the
Kabulayat fall under three distinct classes.
These are (1) Dharekari lands the tenants of
which have a transferable and heritable right
paying Dhara alone to the Khot; (2) Khotnisbat
lands which are either in the hands of
permanent occupancy tenants or tenant,, with
less permanent right payi Fayda to the Khot
and the Government assessment; and (3) Khoti
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
Khasgi lands, private lands, in the possession
of the Khot of which he can make such use as
he pleases."
It was contended on behalf of the ’appellants that the Sud
of 1869 at p. 124-A of the paper book was an important
document id the Tribunal has not correctly appreciated the
meaning of the
(1) 26 Bom. L.R. 754.
807
words Khalsa and Varkas. We do not wish to express at this
stage any concluded opinion on the construction of this
document. We wish to make it clear that it will be open to
the appellants to show before the Special Deputy Collector
how far this document has a bearing on their claim to
proprietary right of survey plot nos, 130 and 132.
It is clear that in the absence of a sanad or a deed or a
grant granting proprietary rights over the soil a Khoti is
not the proprietor oF the lands constituted as reserved
forest in the khoti village and is not entitled to any
proprietary right in the uncultivated or forest land. The
legal position is correctly summarised in Dandekar’s Law of
Land Tenures, Vol. 1, pp. 287-288 as under :
"Section 41 of the Land Revenue Code declares
that the right to all trees, bushwood, jungle
or other natural product, wherever growing,
except in so far as the same may be the
property of individuals capable of holding
property, vests in Government. Government
proprietorship of all trees is the rule and
private rights or proprietorship, if any, are
merely exceptions to the rule. The question
whether a Khot has got the proprietary or any
other limited right to the trees standing or
growing on lands in his khoti village depends
(1) upon the khot’s intereSt in the soil
(2) upon any express grant or concession,
and (3) upon the customary user, if any. If
the first case, if the khot is the proprietor
of the soil, which is very hardly the case,
lie is the proprietor of all the trees
standing or growing on the lands in his khoti
village. The trees upon the land,and the
right to cut down and sell those trees is
incident to proprietorship of the land. In
such a case the principle is quicquid
plantatus
solo solo cedit. Ordinary the khot having no
ownership over the soil, it has been held that
he is not entitled to cut timber either on
uncultivated or on forest lands. Government
has the right to take such lands to make a
forest reserve under the customary law as well
as under positive enactments."
It is necessary in this context to refer to the presumption
that forest tracts and old waste belong to Government unless
the presumption is displaced by positive evidence that
Government has granted rights in any particular tract or
piece of land or has consciously allowed adverse rights to
grow therein. (see Kodoth Ambu Nair v. Secretary of State
for India.(1)
In Sadashiv Parshram Risbud v. The Secretary of State for
India (2 ) the question arose whether the khots were
entitled to
(1) 51 I.A. 257. (2) 20 Bom. L.R. 141.
808
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
recover the sale proceeds of certain teak trees sold by
Government grown on Varkas lands. In the alternative the
khots claimed one-third share of the sale proceeds relying
upon the clause in the kabulayat. It was held by the Bombay
High Court that as between the khots and the Government the
matter in dispute was concluded by the kabulayat and the
khot could not obtain more than one-third of the proceeds of
the sale of the trees. It was held by Shah, J., that the
Dunlop’s Proclamation could apply to Varkas lands in a khoti
village; but if any person claimed the benefit of the
Proclamation he should prove that the land, on which the
trees stood, was his in a popular sense, that is, it was
sufficiently marked out as being in his permanent occupation
in his own right so as to make it properly describable as
his land. On the facts of that case it was held that the
khots had no claim to the teak trees under s. 40 of the Land
Revenue Code and they had failed to prove that they were
entitled to the benefit of Dunlop’s Proclamation in respect
of the Varkas lands in question.
In the present case the Maharashtra Revenue Tribunal has
remanded the case for retrial to the Special Deputy
Collector, Kolaba for decision on the following points :
(1) Whether the appellants prove that they
are the proprietors of the lands in the
village of Kotheri or in the lands attached as
a reserved forest to the said village;
(2) Whether the appellants are entitled to
any compensation for the village gaothan lands
or lands under the rivers and nallas. This
claim is based on the allegation of the
appellants that they are the proprietors of
the village;
(3) Whether the ’appellants are entitled, as
a customary incident of the Khoti, to a share
in the forest revenues of the village;
(4) What is the market value of the loss of
such share or right, if any, in the gaothan
and river and nalla lands.
We affirm the above order of remand and further direct that
an opportunity should be given by the Special Deputy
Collector to both sides to adduce such evidence as they
choose on these points. After taking such evidence the
Special Deputy Collector will pronounce the award in the
light of the law laid down in this judgment. Subject to
these observations we affirm the order of the Maharashtra
Revenue Tribunal dated February 25, 1965 and dismiss the
appeal. There will be no order as to costs.
V.P.S. Appeal dismissed.
809