DAJI KRISHNAJI DESAI TAMBULKAR versus GANESH VISHNU KULKARNI AND OTHERS

RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiffappellant.

p. 906

The plaintiff sued for a declaration. that the property in suit which is situate at Monje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow ofVishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Rant and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent no. 1, purchased the shares of these persons by the sale deeds dated December 14, 1903, and February 13, 1904. On Kulkarni's death, respondent no. 1 ecame th e owner o t e property. f h R espon en s nos. d t 2 to 4 are the tenants of respondent no. 1.

pp. 906–907

The land in suit is khoti land as defined in cl. (10) of s. 3 of the Khoti Settlement Act, 1880 (Born. Act I of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to cl. (2) of s. 3, includes a mortgagee lawfully in possession of khotki and all co-sharers in a khotki. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecessor-in-interest of respondent no. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer.

p. 907, margin B

The plaintiff alleged that the sale deed in favour of respondent no. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour.

p. 907, margin B

Respondent no. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore the plaintiff obtained no title on the basis of the sale deed in his favour.

p. 907, margin B

The trial Court held the sale deed of 1892 to be good sale deed and pinding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of s. 9 of the Act bys. 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was necessary for executing the sale deed in 1945. Respondent no. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour of the plaintiff too would be hit by the provisions of s. 9 of the Act. It further held that the provisions of

pp. 907–908, margin B

9 · d" h h b l h"b" . s. m icate t at t ere was no a so ute pro 1 1t10n against a transfer of the occupancy right. A transfer by an occupancy tenant without the consent of the khot cannot be held to be void for all purposes and it would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent no. l's predecessor-in-interest in 1892 not to be void. It is the correctness of this order that is challenged ir! this appeal.

p. 908

This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to s. 9 of the Act and the section after amendment reads:

p. 908

"The rights of khots and privileged occupants

p. 908

shall be heritable and transferable". 'Privileged occupant' included a permanent tenant under cl. (5) of s. 3 of the Act. The Bombay Tenancy A.ct received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under subs. (3) of s. 1 of that Act. It is clear therefore that s. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the khot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of s. 9 of the Act as the sale of the land in suit in favour of the predecessor-in-interest of respondent no. 1. It is therefore not necessary to determine the question whether the sale wa" absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or voidable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the respondent no. l's predecessor-in-interest was not avoided by the khot, and therefore validly conveyed · I h" C I "ti d t th J · tit e to 1m. onsequent y no t1 e passe .o e Pamtiff under the sale deed in his favour as his transferor had no title. In either case the plaintiff fails to prove his title to the land in suit. The dismissal of his suit is therefore correct.

pp. 908–909

We accordingly dismiss this appeal with costs.

p. 909

Appeal dismissed. ABDUL GAFOOR

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v.

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STATE OF MYSORE (P. B. K. K. N. W K; C. and N. JJ.)

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