@JUDGMENTTAG-ORDER
R.S. Shukla, Member
The facts of the case, as disclosed from the record, are as follows:-
One Kana was the Patel of village Dasri, Tahsil Depalpur, District Indore, and was granted 2.06 Bighas of land as Khotidar Patel. A Khotidar Patel, as defined u/s 64, Explanation 4, of the Indore Land Revenue and Tenancy Act, means the Patel of a village, whom, as Inamdar, land called Khoti, may be granted by the Maharaja as remuneration for his continuing in service and, in recognition of his position as Patel. Kana, however, held land as half-Khoti which means that only half the rent was payable by him for the Khoti land. After the death of Kana, his eldest son Ganesh, the present applicant, started acting for him as Wasuli Paid, and enjoyed the Khoti land. It was, however, on 27-12-1956, after about 20 years of the death of Kana, that the Patwari of the village made a mutation report for substituting the name of Ganesh in place of his deceased father Kana. The Tahsildar made a summary enquiry and on 30-4-1953 recommended to the Sub-Divisional Officer that the necessary mutation regarding the Khoti land be made in favour of the applicant. The Sub-Divisional Officer, in his turn, and without hearing the applicant, reported to the Collector on 24-6-1958 that keeping in view the provisions of section 134, M.B. Land Revenue and Tenancy Act, applicant''s name cannot be substituted as Inamdar, that the land may be made Khalsa and treated as pucca tenancy land on full rent. The relevant portion of the Sub-Divisional Officer''s report dated 24-6-1958 is as follows:-
The Collector simply ''approved'' the recommendation of the Sub-Divisional Officer, vide his endorsement dated 28-6-1958. It may be observed here that while the matter was before the Tahsildar, the applicant was called upon to produce the Sanad and other relevant documents showing the basis and conditions on which his father had been granted the Khoti in question. The Patwari was also called upon to submit his report in the matter. The Tahsil report does not disclose as to what compliance was made by the applicant of this order, but it appears that certain witnesses were examined and an extract copy of the Wajib-ul-arz was brought on record by the Tahsildar before he submitted the case to the Sub-Divisional Officer.
Against the order of the Collector dated 28-6-1958, the applicant went up in appeal to the Commissioner, who declined to interfere on the ground, inter alia, that the right of the applicant on the land had not been terminated by the Sub-Divisional Officer and it was still open to him to take further action by starting fresh proceedings in accordance with State Government''s orders on the subject. Against the order of the Commissioner the applicant has come up in revision.
I may, at the outset, state that the officers below did not deal with this case in a business-like manner and completely ignored to consider the material issues involved. The Collector, who passed the final order in this case, should have heard the applicant before passing his order. His monosyllable approval shows that he did not apply his mind to the case, or, if he did so, it was only in a superficial manner. The learned Commissioner''s order, especially paragraph 3 thereof, is unfortunately couched in vague language. It does not disclose as to what future proceedings he had in mind and which instructions or order of the State Government he was referring to.
Section 134 of the M.B. Land Revenue and Tenancy Act does not authorise any Revenue Officer to convert an Inam land, governed by the Indore Tenancy Act, into Khalsa or State land. Rather it lays down that if an Inam or Muafi or rent-free land is held in his name as remuneration, by a Patel, prior to the commencement of that Act, the same shall continue, even after the Act, to be held by him as remuneration. What this section prohibits is that no new Inam or Muafi or rent-free land shall be given to a Patel in lieu of his remuneration after the commencement of the M.B. Land Revenue and Tenancy Act. That Inam lands of this kind are saved from the operation of the M.B. Tenancy Act is clear from the fact that, vide Schedule ''A'' of the M.B. Tenancy Act, sections 65 to 69 and 72 of the Indore Tenancy Act have not been repealed. These sections of the Indore Tenancy Act deal with the rights and liabilities of the assignee of proprietary rights and connected matters. Under the Indore Tenancy Act, a Khotidar Patel is an assignee of proprietary rights and is classed as Inamdar. His tenure is hereditary and the descent is governed by the rule of primogeniture.
The case before the Tahsildar was one of mutation, namely, whether the applicant Ganesh was entitled to get his name mutated as Khotidar Patel in place of his deceased father. It may be noted that u/s 104(1) of the Indore Tenancy Act, mutation proceedings could be started only at the instance of the Patwari. Section 104 ibid does not provide for the initiation of mutation proceedings at the instance of the deceased''s successor or any other claimant, as was later provided u/s 86(2) of the M. B. Land Revenue and Tenancy Act. It was, therefore, no fault of the applicant if the Patwari took as many as 20 years to bring the death of Kana to the notice of the authorities and put in his report for mutation. The Collector dismissed the claim of the applicant on the ground that the applicant had not produced any evidence in regard to the suit land. He has not made it clear as to what evidence or documents the applicant was expected to produce. There is no mention in the Tahsildar''s report of the failure of the applicant to produce relevant evidence. On the other hand, the statements of certain witnesses and the report of the Patwari are on record, but the Sub-Divisional Officer took no notice of this evidence. It is possible that the original Sanad granted to applicant''s father may not be available; but in the absence of primary evidence, it was open to the Sub-Divisional Officer to rely on secondary evidence, unless he had reasons to discard it. In any case, it is not correct to say that the applicant did not produce any evidence at all in regard to his claim on the land. No enquiry was made as to how the applicant himself came to act as Patel in place of his father and how was it that he continued to do so for more than 20 years. The applicant should have been asked to produce the order of his own appointment and his claim considered in the light of facts that might have thus been disclosed. It would be strange to think that the applicant should have acted as Patel for all these long years without any sanction from competent authorities. In fairness, the Sub-Divisional Officer and the Collector should have taken pains to ascertain full facts from the Government records as well. It would not be just and proper to cast all the burden on the applicant in a case like this and throw out his claim just because he may not be in a position to produce the records which may not reasonably be in his possession.
Any way, the cause of action in favour of the applicant arose when the M.B. Land Revenue and Tenancy Act had not come into force. Even after the commencement of that Act, the rights on Inam lands were not terminated as sections 65 to 69 of the Indore Tenancy Act were kept alive. The mutation case of the applicant should, therefore, have been disposed of in the light of the provisions of the Indore Tenancy Act and his claim should not have been rejected on the totally incorrect interpretation of section 134, M.B. Land Revenue and Tenancy Act. What the applicant claims is not a new Inam land in lieu of his remuneration, but the confirmation of the fact that he held the suit land as Inam in succession to his father. If he succeeds in this claim, he will be deemed to be Khotidar Patel retrospectively with effect from the date he succeeded to the office of his father. Once the present mutation is decided, one way or the other, applicant''s future rights on the land will be governed by such law, Rules, or valid orders of Government that may be applicable in regard to erstwhile Inam lands. The learned Commissioner did not seem to have noticed the difference between Inam land converted to pucca tenancy land before mutation and such conversion taking place after the mutation of applicant''s name. In the former case the applicant may not be able to hold the suit land exclusively for himself as the tenancy right may perhaps be shared by other successors of deceased Kana. On the other hand, the applicant may be able to bold exclusively if he is installed as the Khotidar Patel of the village before the Inam is abolished or converted. In any case, the proceedings for converting Inam land into pucca tenancy land cannot be mixed up with mutation proceedings pending from before, as the Sub-Divisional Officer has obviously done. The only decision that has to be taken in this case is whether the applicant can be treated as the successor of deceased Kana on the Inam land as Khotidar Patel. And on this point, as I have observed above, the enquiry so far made is neither full nor proper.
In the above view the orders of the Sub-Divisional Officer and the Commissioner are set aside and the case is remanded for further enquiry and disposal in the light of observations made above.
