This is an appeal preferred under Section 100 of Code of Civil Procedure, 1908 [ Code for CPC] by the appellant-original plaintiff and respondent no.1 in Regular Civil Appeal No. 253 of 1978 challenging the judgment and decree passed by the Extra Assistant Judge, Baroda in Civil Appeal No. 253 of 1978 whereby the learned Extra Assistant Judge reversed the judgment and decree passed by the learned Civil Judge [S.D.] in Regular Civil Suit No. 1334 of 1974.
2. Short facts giving rise to the present appeal are that the appellant-original plaintiff is an agriculturist and purchased land bearing survey no. 90 admeasuring 1 Acre and 28 Gunthas situated in village Jitnagar from respondent no.2-original defendant no.2, by registered document for Rs. 2000/- and necessary mutation entry was mutated on 15.4.1969 in that regard and the plaintiff is shown as cultivator of the suit land in the record of rights. Assistant Collector, Dabhoi issued a notice stating therein that the transaction was invalid since it contravened the provisions of Section 73-A of the Bombay Land Revenue Code and re-granted the said land to defendant no.2. The Collector, in appeal as well as in revision, confirmed the said order. Therefore, the plaintiff instituted Regular Civil Suit No. 1334 of 1974 in the court of Civil Judge [S.D.], Baroda. The plaintiff contended that once survey settlement is introduced in particular village, no notification under Section 73-A of the Bombay Land Revenue Code can be issued by the government. The disputed notification was issued and published in the area concerned only in the year 1970 and the State Government was not competent to issue notification under Section 73-A of the BLR Code. It was contended by defendant no.1 that Naswadi Taluka was declared as Scheduled Area and survey settlement is not introduced in the said area.
3. Mr S.S. Belsare, learned advocate for the appellant submitted that the appellate court, in para-15 of its judgment, has erred in holding that it is not the case of the plaintiff that survey settlement was carried out in the regime of ex-Gadhda Boriyad State. Section 73A of the BLR Code provides for issuance of notification before introduction of original survey settlement under Section 103 of the Bombay Land Revenue Code. Section 103 was repealed in the year 1939 by Bombay Act 20 of 1939 and new Chapter VIII-A was inserted for settlement of agricultural land and Section 117-C to 117-R pertain to settlement of land revenue of agricultural land. It is submitted by the learned counsel that the State Government did not produce the notification on which heavy reliance was placed. Even on perusal of mutation entry no.315 dated 21.3.70, it does not show that notification dated 4.4.61 was made applicable by the order of Collector dated 16.1.68 to the lands in village Jitnagar which was part of ex-Gadhda Boriyad State in Naswadi Taluka which was declared as Scheduled Area. Impugned notification of 1961 declared that provisions of Section 73-A shall be applicable to those villages in the Scheduled Area in which survey settlement under BLR Code has not been introduced and to which provisions under Section 73 have not been made applicable before the said notification. Both the parties are belonging to Scheduled Tribe. Even on perusal of the deposition of Abbaskhan Pathan at Exh.38 in the office of District Land Record as well as Akar Bandh Register of village Jitnagar Exh.49 makes it clear that assessment was already fixed in the year 1956-57. Even nothing turns out from the deposition of Abbaskhan Pathan. Learned advocate placed reliance on the document exhs. 42 and 43 which are land revenue assessment. Exh. 44 is Kayam Kharda of village Jitnagar of the year 1960 which shows that settlement was introduced since 1956-57. Learned appellate court has wrongly observed that the plaintiff did not plead that the settlement was carried out earlier. Learned appellate court has also not considered and appreciated the provisions of Sections 117-C to 117-R of Chapter VIII-A of the BLR Code in its true perspective and has not considered correctly the meaning of Kayam Kharda as mentioned in Exh.44 as has been done by the trial court in para-21 of its judgment. Thus, considering the evidence on the record of the case, more particularly, Exhs. 42, 43 and 44, it becomes clear that survey settlement was done in the year 1956 and therefore, the appeal deserves to be allowed and the judgment and decree passed by the appellate court requires to be quashed and set aside and the declaration granted by the trial court in Regular Civil Suit No. 1334 of 1974 that the order of Special Secretary dated 25.4.72, order of the Collector, Baroda and the order of Assistant Collector, Dabhoi are null and void and not binding to the plaintiff, are required to be upheld.
5. Ms VS Pathak, learned Asstt. Government Pleader, appearing on behalf of respondent no.1 submitted that considering the reasoning given by the appellate court and taking into account the oral depositions and documentary evidence, it becomes clear that no substantial question of law is involved in the appeal and on that ground alone, the appeal deserves to be dismissed. Learned AGP submitted that the appellate court has appreciated the entire gamut of evidence in its true perspective and, therefore, there is no reason to interfere with the findings given by the appellate court and the appeal be dismissed.
4. The appeal is admitted by this Court on the following substantial questions of law:-
[1] That in the facts and circumstances of the case, has lower appellate court erred in holding that there was ad-hoc survey and settlement of suit fields and no permanent settlement of suit fields?
[2] That in facts and circumstances of case, has lower appellate court erred in construing and/or applying provisions of S.73[A] of Bombay Land Revenue Code?
[3] In facts and circumstances of the case has lower appellate court erred in construing legal and factual import of Kayam Kharda in village form no.1 of Exh.44?
[4] In facts and circumstances of the case has lower appellate court erred in holding the transfer of suit fields is illegal by virtue of notification?
[5] In facts and circumstances of the case, has lower appellate court erred in appreciating the oral and documentary evidence for the purpose of suit lands and also other issues?
5. I have heard Mr SS Belsare, learned advocate for the appellant and Ms VS Pathak, learned AGP for respondent no.1, at length and in great detail. Though served, none appears on behalf of respondent no.2. I have considered the reasoning given by the courts below as well as the provisions of Section 73-A and Sections 117-C to 117-R as referred to and relied upon by the learned advocates for both the sides. Document at Exh. 49 as well as revenue entries which are produced at Exhs. 42 and 43 showing possession and assessment of the land of the plaintiff, are also perused by me. Document at Exh.49 is Akar Bandh register of village Jitnagar which shows that assessment was already fixed in the year 1956. On perusal of deposition adduced by Abbaskhan Pathan at Exh.38, he has deposed in his testimony that he has worked as Surveyor in Baroda since last one year in the office of DLR. He had also produced original register. In his cross-examination, he has deposed that after survey settlement, necessary entry is also made in the village form. He has not performed survey in Jitnagar village and he does not have any idea as to when survey was conducted and when it was made effective in Jitnagar area. Thus, deposition at Exh.38 makes it abundantly clear that even witness Abbaskhan Pathan has no idea as to when survey settlement was introduced in Jitnagar village. The respondent-State has not examined any witness in order to dislodge the case of the plaintiff. I have also perused Exhs. 42 and 43 which show revenue entries indicating the plaintiff's possession and assessment. Exh.49 is Akar Bandh register of village Jitnagar which shows that assessment was already fixed in the year 1956-57. In view of the aforesaid documentary evidence and oral deposition given by Abbaskhan Pathan at Exh.38, I am of the view that the learned appellate Judge has committed an error in allowing the appeal and setting aside the decree of the trial court. I, therefore, answer all the substantial questions of law in the affirmative.
7. For the foregoing reasons, the appeal is allowed. Judgment and decree passed by the Extra Assistant Judge, Baroda in Civil Appeal No. 253 of 1978 passed by the learned Extra Assistant Judge is hereby quashed and set aside and the judgment and decree passed by the learned Civil Judge [S.D.] in Regular Civil Suit No. 1334 of 1974 is hereby confirmed.
[H.B.
ANTANI, J.] pirzada/-
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