MEHRAMANSINHJI ALIAS MAHAMMED MASOOD JALULLUDDIN THAKORE Vs. STATE OF BOMBAY NOW GUJARAT

JUDGEMENT

(1.) This appeal arises from the judgment and decree dated 13 August 1958 of the Civil Judge (Senior Division) at Broach in Civil Suit No. 4 of 1956 by which he has dismissed the plaintiffs suit. The plaintiff had claimed a declaration that the plaintiffs suit lands are of his absolute ownership and are not Taluqdari lands as defined by the Bombay Taluqdari Tenure Abolition Act 1949 hereinafter referred to as the Act and that he is liable only to pay as revenue a fixed sum of Rs. 9379-6-3 a permanent injunction restraining the defendant-State Government and their agents and servants from applying the provisions of sec. 5(1)(a) and (b) and sec. 4 of the Act to the suit lands and further restraining them from levying assessment on the suit lands in accordance with the Bombay Land Revenue Code hereinafter referred to as the Code and the rules made thereunder and from entering the plaintiffs name in the record of rights as an occupant. The plaintiff had also claimed an injunction restraining the defendant from claiming any records in possession of the plaintiff with regard to his tenants acting on the assumption that the said Act was applicable to the suit lands. A decree was also asked for the recovery of the amount of Rs. 16082-8-0 recovered as excess amount by way of land revenue from the plaintiff than what he was liable to pay. Defendant No. 1 was the then State of Bombay and defendant No. 2 was the Collector of Broach. The plaintiff is the Thakor of Amod and as such he claimed to be the absolute owner of all the agricultural lands in about 15 villages in Amod Taluka in the Broach District as per Ex. 62 ad-measuring about 8876 Acres and 15 Gunthas and valued at Rs. 14 20 220 at the rate of Rs. 160/per acre. Most of these lands were in the possession and occupation of different persons who according to the plaintiff were his tenants and some of the lands were actually in the possession and occupation of the plaintiff himself. The plaintiffs case was that his ancestors once upon a time were the ruling chiefs of Amod and held the Gadi (throne) of Amod as independent rulers. He based his claim of ownership on certain previous treaties with the earlier sovereign. Before the British conquest of the territories of Broach in 1817 A. D. the plaintiffs ancestors paid to the Peshwas a tribute called the annual Jama which was fixed at Rs. 8506/as well as a trienial payment of Rs. 3000/as Peshkush. The plaintiffs ancestors paid tribute for the lands and held the said lands which were known as Wanta lands on payment of a fixed sum of Rs. 8379 on Udhad Jama Bandhi Tenure. The Wanta was a proprietary holding of the lands and according to the plaintiff had been recognised as such from ancient times. The said payment was alleged to have been made as a political tribute and not by way of land revenue and according to the plaintiff was only commuted and accepted as a permanently fixed amount in about 1876 A. D. by an agreement made with the British Government. The said payment of the tribute having been accepted by the paramount power of the sovereign rulers of India before the British rule and by the then Government of India the said agreement was alleged to be binding on the defendants. The plaintiff therefore claimed that he had a right to hold the said proprietary lands on payment of the permanently fixed sum of Rs. 9379-6-3 as Udhad Jama. The plaintiff also alleged that under the various Regulations and Act of 1817 1827 and 1863 there were limitations on the right of the Government to levy land revenue and the plaintiffs lands remained unaffected and this right enjoyed by prescription and from times immemorial could not be taken away by any law. After the Act came into force the defendant-State Government sought to levy land revenue on all the suit lands in plaintiffs possession under the Code by virtue of sec. 5(1)(a) of the Act on the ground that the suit lands were Taluqdari lands and the plaintiffs name was sought to be entered as an occupant of the said lands under sec. 5(1)(b) of the Act and the Government further sought to obtain from the plaintiff certain records pertaining to tenancy of other suit lands on the assumption that all the suit lands were Taluqdari lands and for which the plaintiff and tenants in possession were liable to pay land revenue being occupants The plaintiffs case is that he was not a Taluqdar and the suit lands were not Taluqdari lands but belonged to him as an absolute owner on payment of the fixed Udhad Jama which was not a land revenue and accordingly the provisions of the Act including sec. 5(1)(a) and (b) were not applicable to the suit lands. His further case was that as an agreement was arrived at in 1876 with the British Government by which the tribute was commuted to the fixed amount in perpetuity and which agreement was in terms admitted in the letter of the Collector Broach dated 25th September 1918 there was an agreement or settlement which had been recognised under sec. 23 of the Gujarat Taluqdari Act 1888 admitting his right to pay a fixed sum in perpetuity and therefore in any case his lands were saved from the operation of sec. 5(1)(a) by the exemption provided in sec. 5(1)(b) of the Act. Finally the plaintiff contended that secs. 4 and 5 of the Act were ultra vires as they infringed the fundamental rights of the plaintiff guaranteed under the Constitution.

(2.) The Government in its written statement admitted that the suit lands were Wanta lands which were proprietary holding held on Udhad Jamabandhi Tenure and that the plaintiff used to pay the sum of Rs. 9379 to the Government. But it denied that the said payment was the political tribute and contended that it was a revenue payment. The case of the Government was that the plaintiff was a Taluqdar and the suit lands were Taluqdari lands and that the Thakores of Amod had accepted the Statutes of Taluqdar long before the passing of the Gujarat Taluqdars Act 1888 and were treated as such and had acquiesced therein. No record of rights was applied but the suit lands were entered in the prescribed Settlement Registers under the Gujarat Taluqdars Act 1888 The estate of the Thakore of Amod was even placed under the management from 1872 to 1896 under the Broach Taluqdars Relief Act 1871 A detailed survey was made of the estate of Thakore of Amod under sec. 4 of the Gujarat Taluqdars Act 1888 in 1912. Even in the application for compensation under sec. 6 of the Act and for extinguishment of rights under sec. 14 the suit lands were described by the father of the plaintiffs as land. It was further contended that it was admitted by the Thakore of Amod in civil suit No. 333 of 1927 filed against the Secretary of State that his ancestors had ceased to be Tributory Chiefs holding under a political tenure under the British Crown and it was not open to the plaintiff to contend that the payment was by way of political tribute and not as a fixed revenue. The sum was never accepted as political tribute and such acceptance if any was not binding on the State Government. The special tenure which made the Taluqdar owner of the land being abolished by the Act it was contended that the suit Taluqdari lands had become liable to the payment of land revenue under the Code. The Government denied the existence of any agreement or settlement between the plaintiff and the Government which had been recognised under sec. 3 of the Gujarat Taluqdars Act 1888 and denied that the exemption from sec. 5(1) contained in sec. 5(2)(b) was applicable to the suit lands. It was also denied that sec. 5(1) abridged any fundamental right and was unconstitutional as alleged or otherwise.

(3.) The trial Court held:-