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PETITIONER: BACHHARAM DATTA PATIL AND ANOTHER

       Vs.

RESPONDENT: VISHWANATH PUNDALIK PATIL ANDOTHERS.

DATE OF JUDGMENT: 20/09/1956

BENCH: SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA DAS, S.K.

CITATION:  1957 AIR   34            1956 SCR  675

ACT: Watan  lands-Resumption  by Government-Dispensing  with  the services  and levying of full assessment-Lands  subsequently described   as  Japti  Sanadi  Inam   lands-Whether   retain character of Watan lands.

HEADNOTE: Certain lands which were originally Watan lands were resumed by  the Government after dispensing with the  services  that were being rendered and full assessment was levied  thereon. Thelands were subsequently described as "Japti Sanadi  Inam" lands. Held, that the lands had lost their character as Watan lands and had become ryotwari lands of the holder. Ramijyabi  Muktum Saheb v. Gudusaheb, (54 Bom.   L.R.  405), approved. The very description of the lands as Japti Sanadi Inam lands means that the lands were once the subject matter of an Inam grant  by  virtue  of  a Sanad  and  have  been  resumed  or confiscated by the Government and have been left in the hands of the holder  as ryotwari holding. The  Government may commute the services to be rendered  and it  will then depend on the terms of the  agreement  between the  holder  of the Watan lands and the  Government  entered into at the time of the commutation whether the lands are to retain their character as Watan lands or not.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 249 of 1953. On appeal from the judgment and decree dated the 1st day  of September,  1949, of the Bombay High Court in Appeal No.  23 of 1947 from original decree arising out of the decree dated the 28th September 1946 of the Civil Judge, Session Division at Belgawn in Suit No. 360 of 1945. K.R. Beneri, J. B.  Dadachanji -and Sri Narain Andley for A. C. Dave for the appellants. H.B. Datar and Naunit Lal for respondent No. 1.

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676 1956.   September  20.    The  Judgment  of  the  Court  was delivered by SINHA  J.-This is an appeal -by leave of the High  Court  of Judicature  at Bombay from the decision of a Division  Bench of  that Court reversing that of the trial court in  respect of  items 3, 4 and 6 in the list of the properties  attached to  the  plaint as the subject-matter of  the  dispute.   In respect of the other items of property in dispute the courts below have given concurrent decisions and that part of their judgments  is  no more in controversy at  this  stage.   The three items aforesaid of the property along with the  others in  dispute  had  been decreed in favour  ’of  the  original plaintiffs 2 and 3 as Watan property.  But on appeal by  the third defendant, the High Court reversed the decision of the trial  court  only  in  respect of  those  three  items  and confirmed the decision of the trial court in respect of  the rest of the plaint properties. The  propositus  was  one Shreemant who  died  on  the  23rd November,  1941  leaving him surviving  his  wife  Radhabai. Radhabai  died  on  the 9th May 1945 and on  her  death  the dispute  arose  between  the reversioners on  the  one  hand including the plaintiffs 2 and 3, appellants in this  Court, and  the  defendants on the other who claimed by  virtue  of alleged  adoptions  said  to  have  been  made  by  Radhabai aforesaid.  The first plaintiff is out of the picture now on the concurrent finding by the courts below that he had no right  to the state left by the propositus by virtue of  the adoption  found  in his favour, inasmuch as  before  he  was adopted  the  estate  had  already  vested  in  the   actual reversioners,  plaintiffs-2 and 3, the agnatic relations  of Shreemant.  The estate of Shreemant, so far as it related to Watan  lands, vested in plaintiffs 2 and 3  aforesaid  under the provisions of Bombay Act v of 1886.  If either defendant 2 or defendant 3 bad proved-his alleged adoption by Radhabai aforesaid, he would have been entitled to the estate as  the adopted  son of the propositus, thus excluding  the  agnatic relations,  namely, plaintiffs 2 and 3. But both the  courts below- have concurrently found that                   677 neither  of  the  two  defendants  2  and  3  had  succeeded in  proving the adoption respectively pleaded by them.   The trial court had substantially decreed the suit in respect of all  the  items of property in dispute including  the  three items which, as indicated above, are the only properties now in controversy in this Court, on the finding that these also were  Watan  properties which like the rest  of  the  plaint properties  were  inherited by the  reversioners  aforesaid, namely,  plaintiffs 2 and 3., The High Court on appeal  held that  the  three items of property now  in  dispute,  though originally  Watan  properties, had lost their  character  as such  by  reason of the fact that they had been  resumed  by Government  after  dispensing  with the  service  and  after levying full assessment on those lands.      Those     lands have been called "Japti Sanadi Inam     lands"    in     the records of the courts below and it is   by  that  name  that we. shall refer to the disputed lands   in  the  course   of this judgment. It would thus appear that the controversy has narrowed  down to  the question whether the Japti Sanadi Inam  lands  still retain  their character as Watan lands as held by the  trial court,  or have lost their character as such in view of  the events  that had happened as decided by the High Court.   It is  not  disputed  that in the former  case  the  plaintiff- appellants  will be entitled to them also even as they  gave

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been  adjudged to be entitled to the rest of the  properties in dispute which were admittedly Watan lands.  It is equally undisputed that, if the Japti Sanadi Inam lands are no  more Watan  lands, this appeal must fail.  On this question  both the courts below have been rather cryptic in their  remarks. The  trial  court  held them to be  Watan  lands,  with  the following observations:- "The lands at serial Nos. 3, 4 and 6 are Japti Sanadi lands. They  still retain the character of Sanadi lands inspite  of the fact that services have been temporarily dispensed  with and full assessment levied.  Sanadi lands have been held  to be Watan lands governed by the Watan Act". The  trial  court  has  made  no  attempt  to  support   its conclusions with reference to any statutory rules or 678 precedents.  The lower appellate court has disposed of  this question in these words:- "Now  it is conceded before us that there is no evidence  to support  the  observation made by the learned  trial  Judge, that  the  services were temporarily dispensed with  by  the government.  If therefore,the Record of Rights show that the full  assessment is being levied in respect of these  lands, and that services are not required to be performed and  they are  described as Japti Sanadi Inam lands,  meaning  thereby that  they were once Sanadi lands, but in respect  of  which there has been resumption by the Government, the  conclusion must  inevitably follow that these lands have ceased  to  be lands  held  on  Sanadi  tenure and  are  held  in  ordinary occupancy rights". The learned counsel for the appellants has vehemently argued that  the  High Court was in error in  concluding  that  the lands  in  question  had ceased to  be  Watan  lands  simply because  the  service attaching to them had  been  dispensed with  and  full  assessment  levied  by  Government.    This argument   was  based  on  the  provisions  of  the   Bombay Hereditary  Offices Act (Bombay Act III), 1874.  Apart  from authority,  therefore,  we  have  to  examine  the  relevant provisions  of that Act in order to determine whether  those provisions  support the conclusions of the High  Court.   In section 4, "Watan property", "Hereditary office" and "Watan" have been defined as follows:- "Watan  Property means movable or immovable  property  held, acquired  or  assigned for providing  remuneration  for  the performance  of  the  duty  appertaining  to  an  hereditary office.   It  includes  a right to levy  customary  fees  or perquisites, in money or in kind, whether at fixed times  or otherwise.   It  includes cash payments in addition  to  the original  watan property made voluntarily by Government  and subject periodically to modification or withdrawal. ’Hereditary office’-means every office held hereditarily for the performance of duties connected with the  administration or  collection  of the public revenue, or with  the  village police,  or  with  the settlement of  boundaries,  or  other matters of civil administration, 679 The expression includes such office even where the  services originally appertaining to it have ceased to be demanded. The  watan-property, if any, and the hereditary  office  and the   rights  and  privileges  attached  to  them   together constitute the watan". From these definitions it is clear that in order that  there may  be  a  Watan it is necessary that  there  should  be  a hereditary  office and Watan property which is  assigned  to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office.  But it has been argued

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on  behalf of the appellants that it is common ground,  that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam  lands, they continue to bear that character, because the Government have  not  been  authorised  by  any  law  to  change  their character.   No precedent or statutory  provisions  directly supporting  this wide proposition have been brought  to  our notice.   But our attention was called to the provisions  of section  15 which make it permissible for the  Collector  to commute the service and- relieve the bolder of the Watan and his heirs and successors in perpetuity of their liability to perform  the  service on such conditions as  may  be  agreed upon.   If  we have been able correctly  to  appreciate  the argument based upon section 15, it was sought to be made out that  the service in respect of the Watan lands in  question may  have been commuted, but even -after the commutation  of the  service the Watan remained and the lands  continued  to retain the character of Watan lands.  This argument  assumes that even upon the service being entirely dispensed with  in perpetuity, the Watan character of the land continued.  That is begging the question.  Furthermore, clause (1) of section 15  contemplates commutation "upon such conditions,  whether consistent with the provisions of this Act or not, as may be agreed  upon  by the Collector and such bolder".   Thus  the conditions  to  be agreed upon between the  holder  of  land which  was  once part of a Watan and the Government  at  the time of the commutation may be of 680 so many varieties that in some cases the Watan character  of the land may be maintained, whereas in others the conditions agreed  between the parties may themselves  contemplate  the cessation  of  that character.  In the present  case,  apart from  the entries in the Record of Rights, we have no  other evidence  to  indicate as to on what terms the  service  bad been  completely dispensed with in perpetuity and  the  full assessment  levied upon those lands. , It is  not  therefore clear upon the findings of the courts below that there  were any such conditions attaching to the holding of the lands in question  which could be consistent with the continuance  of the original Watan tenure.  It is possible to conceive of  a case  where  the  conditions agreed  upon  provide  for  the continuance  of the Watan tenure in spite of the  fact  that the  holders  have  been  excused  the  performance  of  the customary service.  On the other hand, it may be that  there were no conditions agreed between the parties continuing the Watan  character  of  the land  after  dispensing  with  the service. On the findings of the courts below there was no  hereditary office  any more and therefore the question of  remunerating any service with the usufruct of Watan property or otherwise did not arise.  On the other hand, the provisions of section 22  of the Act clearly predicate that a Watan may  lapse  in part or in whole or may be confiscated or otherwise lawfully resumed  by Government and that in such cases it  is  lawful for Government to attach such land to a newly created  Watan in favour of such persons as may be appointed by Government. That  being so, it is impossible to contend that  Government have not the power to destroy the Watan character of a Watan land.   Such  an  argument  completely  ignores  the   legal position that an authority which has the power to create  an office  and  to provide for its remuneration in cash  or  in kind  has also the power to revoke the grant, and upon  such revocation,  if any land has been assigned for  remunerating the  office so abolished it must revert to the  source  from which it came; that is to say, ryotwari land subject to land

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revenue assess- 681 ment.  That is what appears to have happened in the  present case.  The very description of the land as Japti Sanadi Inam land would mean that which was once the subject matter of an inam  grant  by  virtue  of a  sanad  has  been  resumed  or confiscated by Government and the land left in possession of the  holder  as  ryotwari holding.  As pointed  out  by  the courts  below,  there  is no evidence  as  to  the  original character  of the grant or as to how and when the grant  was resumed  and  the  land  thus  became  subject  to  ordinary occupancy rights.  But they have proceeded on the basis that it was the subject matter of a Watan by sanad which has been subsequently  resumed by Government as service was  no  more required and the necessity for the grant was no more  there. They  have  only  differed  on  the  legal  result  of   the resumption. A  similar  question arose for decision in the  Bombay  High Court in the case of Ramijyabi Muktum Saheb v.  Gudusaheb(1) after  the present case had been decided by that Court.   In that case property which was originally Watan was  continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in  respect of the land.  The question arose whether such land continued to  be  Watan  land with its special  incidents  as  regards alienation,  etc.,  or  whether it  was  ordinary  occupancy holding.  A single Judge of that Court who heard the  appeal in  the first instance came to the conclusion that the  land continued  to be Watan land.  On Letters Patent Appeal,  the Division  Bench  after a very elaborate examination  of  the relevant-rules   and   precedents  came  to   the   contrary conclusion  and  held that the land had ceased to  have  the character  of Watan and was subject to the ordinary  law  of -land  tenures in that State.  We are in agreement with  the conclusion reached by the Letters Patent Bench in that case, the  facts  of which were similar to those  of  the  present case.  Hence it must be held that there is neither authority nor  principle in favour of the contention raised on  behalf of the appellants. The appeal is accordingly dismissed with costs. (1)  54 Bom.  L R. 405. 682