# SHYAMSUNDER TIKAM SUET & ANR v. STATE OF MAHARASHTRA & ANR

- **Citation:** [1970] 2 S.C.R. 801
- **Court:** Supreme Court of India
- **Decided:** 1969-10-15
- **Case number:** Civil Appeal No. 744 of 1966
- **Bench:** V. Ramaswami, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shyamsunder-tikam-suet-anr-v-state-of-maharashtra-anr-4948
- **Pages:** 8

## Headnote

Bombay Khoti Abolition Act (6 of 1950), s. 12-Khoti-Rights in
forest and waste lands.
A Khoti in the district of Kolaba is only a hereditary farmer of land
revenue and is entitled to hold a village as Khoti on his entering
every
year into the customary Kabulavat.
The presumption is that forest tracts
and old waste belong to Government unless the presumption is displaced
by positive evidence that Government has granted rights in any particular
tract or piece of land or has consciously allowed adverse rights to grow
therein.
Therefore, in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Klioti is not a proprietor of the lands
constituted as reserved 1forest in the Khoti village and is not entitled to any
proprietary rights in the uncultivated or forest land.
In the present case the Special Deputy Collector (Khoti) Kolaba,
directed certain, amounts to be paid to the appellants for their share of
·compensation for Khoti rights in respect o.f reserved forest and unassessed
land in a village under s. 12 of the Bombay Khoti Abolition Act,
1949.
'fhe Maharashtra Revenue Tribunal, in appeal, set aside the order and
remanded the case for retrial stating the various points for decision, one
elf which was, 'whether the appellants prove that they are the proprietors
of the lands in the viliage or in the lands attached as a reserved forest to
the said village'.
In appeal to this Court,
HELD : The appellants should be given sufficient opportunity by the
Spe<:ial Deputy Collector for provi· ,g by oral and documentary evidence
that they had proprietary rights in the status of Khoti and then dispose of
the matter according to the law relating to the rights of a Khoti.
'(808 G-H]
Tajubai v. Sub-Collector of Kulaba, 5 Born. High Court Reports 132,
Ganpati Gopa/ Risbud v. The Secretary of Stale for India, 26 Born. LR.
754, Kodoth Ambu Nair v, Secretary 'of State for India, SI I.A. 257 and
Sadashiv Parshram Risbud v. Secretary of State for India, 20 Born. LR.
141, referred to.

## Text

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801
SHYAMSUNDER TIKAM SUET & ANR.
v.
STATE OF MAHARASHTRA & ANR.
October 15, 1969
[V. RAMASWAMI AND I. D. DUA, JJ,J
Bombay Khoti Abolition Act (6 of 1950), s. 12-Khoti-Rights in
forest and waste lands.
A Khoti in the district of Kolaba is only a hereditary farmer of land
revenue and is entitled to hold a village as Khoti on his entering
every
year into the customary Kabulavat.
The presumption is that forest tracts
and old waste belong to Government unless the presumption is displaced
by positive evidence that Government has granted rights in any particular
tract or piece of land or has consciously allowed adverse rights to grow
therein.
Therefore, in the absence of a sanad or a deed or a grant granting proprietary rights over the soil a Klioti is not a proprietor of the lands
constituted as reserved 1forest in the Khoti village and is not entitled to any
proprietary rights in the uncultivated or forest land.
In the present case the Special Deputy Collector (Khoti) Kolaba,
directed certain, amounts to be paid to the appellants for their share of
·compensation for Khoti rights in respect o.f reserved forest and unassessed
land in a village under s. 12 of the Bombay Khoti Abolition Act,
1949.
'fhe Maharashtra Revenue Tribunal, in appeal, set aside the order and
remanded the case for retrial stating the various points for decision, one
elf which was, 'whether the appellants prove that they are the proprietors
of the lands in the viliage or in the lands attached as a reserved forest to
the said village'.
In appeal to this Court,
HELD : The appellants should be given sufficient opportunity by the
Spe<:ial Deputy Collector for provi· ,g by oral and documentary evidence
that they had proprietary rights in the status of Khoti and then dispose of
the matter according to the law relating to the rights of a Khoti.
'(808 G-H]
Tajubai v. Sub-Collector of Kulaba, 5 Born. High Court Reports 132,
Ganpati Gopa/ Risbud v. The Secretary of Stale for India, 26 Born. LR.
754, Kodoth Ambu Nair v, Secretary 'of State for India, SI I.A. 257 and
Sadashiv Parshram Risbud v. Secretary of State for India, 20 Born. LR.
141, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 744 of
1966.
Appeal by special leave from the judgment and order dated
February 25, 1965 of the Maharashtra Revenue Tribunal, Bombay in No. Rev. A. 40 of l962.
S. T. Desai and Naunit Lal, for the appellant.
G. L. Sanghi and S. P. Nayar, for the respondents.
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SUPREME COURT REPORTS
[1970] 2 S.C.R.
The Judgment of the Court was delivered by·
Ramaswami, J.
This appeal is brought by special leave from
the judgment of the Maharashtra Revenue Tribunal, Bombay in
Revenue Appeal No. 40 of 1962 whereby the Tribunal set aside
the award of the Special Deputy Collector, (Khoti), Kolaba under
s. 12 of the Bombay Khoti Abolition Act, 1949 directing the
amount of Rs. 837.94 to be p~id to the appellants for their share
of Rs. 0-12-1 1/3 share in village Kotheri, Taluka Mahal, District
Kolaba and remanded the case for retrial stating the points for
decision by the Special Deputy Collector.
On October 9, 1950 the appellants made an application before
the Collector of Kolaba for obtaining compensation for Khoti rights
in respect of reserved forest and unassessed lands in accordance
with the provisions of the Bombay Khoti Abolition Act,
1949
(Act No. VI of 1950) (hereinafter referred to as the Act). In
the application, the appellants stated that the village Kotheri in
Taluka Mahal was a Khoti village of Pat (leasehold) and that the
appel!ants had a Khoti share of Rs. 0-12-H in the village.
The
appellants said that the total compensation which they claimed
for the entire village came to Rs. 17,615/- and that the share of
Rs. 0-12-1 1/3 came to Rs. 13,333-9-0.
The appellants further
claimed a sum of Rs. 7,480/- in respect of 'loss under the reserved
forest (74 acres 32 gunthas)' and a sum of Rs. 6,850/- being the
one-third share of "the price at the present market rate of the
trees etc., that at present stand in the reserved forest".
On January 31, 1962 the appellants filed before the Special Deputy Collector, Kolaba a preliminary statement. In that statement the appellants contended that the Khots used to guard the forest in their
proprietary rights in about the year 1860 A.D. and that the said
land had been taken to the reserved forest.
The appellants further
contended that they had a partnership with the State. in respect
of forest income, that is, in the division of agricultural produce
and that the "partnership in the forest income has not been abolished under the Khoti Abolition Act and the partnership is still
subsisting." The appellants said that "the question of determining compensation for the forest partnership
~annot, therefore,
arise." On May 15, 1962 the Special Deputy Collector (Khoti)
Kolaba made his award granting a sum of Rs. 837.94 as compensation.
Aggrieved by the award the appellants preferred an
appeal before the Maharashtra Revenue Tribunal being Revenue
Appeal No. REV. A. 40 of 1962.
On September 16, 1963 the
appellants submitted before the Tribunal their written arguments.
On September 18, 1964, November 21, 1964 and February 1,
1965 the appellants filed before the Tribunal further supplementary arguments in writing.
On February 21, 1965 the Tribunal
delivered its judgment holding that the Khoti in the Kolaba cannot
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SHYAMSUNDER v. MAHARASHTRA (Ramaswami, J.)
803
tary rights in the village or in the reserved forest unless he proves
that he has separate sanad or grant conveying to him these proprietary rights.
The Tribunal, however, took the view that the appellants were not bound by any compromise decree and the Special
Deputy Col!f'.ctor has dealt with the matter in
'.l perfunctory
manner. The Tribunal therefore, set aside the award and remanded
the case for retrial setting out the points to be decided by the
Special Deputy Collector.
The Bombay Khoti Abolition Act, 1949 came into force with
effect from April 12, 1959.
Section 2(1) (iv) of the Act defines
the word "Khot" as including a mortgagee lawfully in poss~sion
of a Khotki.
Section 2 (1) (vii) of the Act defines the words
"Khoti Khasgi land" as follows :
" (a) in the Ratnagiri District Khoti land held by and
in pessession of a Khot other than Khoti nisbat land and
land held by a privileged occupant as defined in the
Khoti Act;
(b) in the Kolaba District-
( i) land which is entered in the Khot's own name as
Khoti or in that of a co-sharer in a khotki in the
records of the original survey; and
(ii) land acquired since the original survey by the
Khot by purchase or other lawful transfer otherwise than in his capacity as a Khot;"
Section 2(1) (viii) df'.ines the words "Khoti land" as follows:
" 'Khoti land' means land in respect of which a Khot
had, as such, any right or interest in the district of Ratnagiri according to the provisions of the Khoti Act and in
the district of Kolaba according to the custom of the
tenure;''
Section 3 of the Act provides for the abolition of the Khoti tenure
anti states :
"3. With effect from and on the date on which this
Act comes into force,-
( 1) the Khoti tenure shall, wherever it prevails in the
districts of Ratnagiri and Kolaba, be deemed to have
been abolished; and
LlSupCl(NPJ/70-6
_.804
SUPREME COURT REPORTS
[1970] 2 s.c.R.
(2) save as expressly provided by this Act, all the
incidents of the said tenure shall be deemed to have been
extinguished, notwithstanding any Jaw, custom, or usage
or· anything contained in any sanad, grant, kabulayat,
lease, decree or order of any court or any other instrument."
Section 10 deals with the right to trees and states :
"The rights to trees specfally reserved under the
Ind:an Forest Act, 1927, or any other law for the time
being in force except those the ownership of which has
been transferred by Government under any contract,
grant or law for the time being in force shall vest in Government."
Section 12 of the Act before its amendment by the Maharashtra
Act 43 of 1963 stood as under :
"(1) If a khot or llilly other person is aggrieved by
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any ol the provisions of this Act as extinguishing or
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modifying any of his rights in land and if such person
proves that such extinguishment or modification amounts
to transference to public o\Wlership of any land or any
right in or over such land, such person may apply to the
Collector for compensation.
(2) Such application shall be made in the form presE
cribed by rules made under this Act on or before the 31st
day of March, 1952.
( 3) The Collector shall after holding a formal inquiry
in the manner provided by the Code award such compMsation as he deems reasonable and adequate;
Provided that-
(a) the amount of compensation for the extinguishment of the right of reversion in lands in a Khoti village
in the district of Ratnagiri sha)J not exceed the amount
calculated at the rate of Rs. 2 per 100 acres of such land;
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(b) the amount of compensation for the extinguishG
ment of any right to appropriate any uncultivated and
wa8te lands not appropriated by any khot and not entered in the revenue or survey records as khoti khasgi
immediately before the 1st day of August, 1949, shall
not exceed the amount calculated at the rate of Rs. 5
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per 1 (10 acres of such land :
Provided further that in the case of the extinguishment or modification of any other right of a khot or any
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SHYAMSUNDER v. MAHARASHTRA (Ramaswami, J.)
805
pght of 3illy other person the Collector shall be guided
by the provisions of sub-section ( 1) of section 23 and
section 24 of the Land Acquisition Act, 1894 :
Provided also that if any question arises whether any
land is dhara, khoti khasgi or khoti nisbat or is held by
a permanent tenant or other tenant, the Collector shall
after holding a formal inquiry in the manner provided
by the Code decide the question.
( 4) Subject to the provisions of sub-section ( 5), the
award or decision of the Collector shall be final.
( 5) Any person aggrieved by the award or decision
of the Collector may appeal to the Bombay Revenue
Tribunal constituted under the Bombay Revenue Tribu·
nal Act, 1939."
The Act was amended by the Maharashtra Act 43 o.f 1963
by which payment of compensation was provided to any foss of
share in the forest revenue and the Amending Act came into
force on October 6, 1963 and it was provided that the claim for
compensation can be entertained upto March 31, 1964.
On behalf of the appellants Mr. S. T. Desai did not press the
argument that the Act is ultra vires of the Constitution of India OI·
that the Act did not apply to the village of Kotheri or to the surve}
plots in dispute.
Learned counsel said that the appellant shou!C
be given sufficient opportunity of proving by oral and documenta!).
evidence that they had proprietary rights in survey plots 130 ant
132 of Mauja Kotheri in the status of kothi.
The legal position is well-established that khotis in the distric
of Kolaba are hereditary farmers of l3illd revenue and are entitlet
to hold villages as khoti on their entering every year into th<
customary kabu/ayat.
According to Molesworth's Dictiona!Ji
'khot' meaJ)S :
"a. renter of a village, a farmer of land or revenue,
a farmer of the. customs, a contractor or monopolist; an
hereditary officer whose duty it is to collect the revenue
of the village for Government, also an officer appointed
for this office; a tribe of Brahmins in the Southern
Konkan."
In Tajubai v. Sub-Collector of Kulaba(') it was held by th1
majority of the Full Bench that the khotis have no proprietary righ•
in the soil of their village but only hereditary right to farm· th
(I) S Bom. High court Reports 132.
806
SUPREME COURT REPORTS
[1970] 2 S.C.R.
revenue and that if the "khot's right is the· hereditary fanning of
the revenue, the living principle of that right would not be property
inherent in the khot, but a perpetually running contract with the
State." At p. 149 Newton J., ot>served in the course of his
judgment:
"Do these facts establish more than is
admitted,
namely, that the plaintiff, had an hereditary right of farming the half oi the villa~e of Pegode, as Jong as she
cootinued annually to enter into the customary agreement ? Do they prove that she as khot had any such
proprietary interest in the village, as would authorise her
to claim restitution of the half-share unconditionaily,
after failure during several years to discharge the office
of khot?
We think not.
We think, further. that some
of the above facts militate against the title alleged by the
plaintiff."
•
In Ganpati Gopal Risbud v. The Secretary of State for
India(') the Bombay High Court reiterated that khots in the district of Kolaba are h~reditary farmers of the revenue and are
entitled to hold their villages as Khoti on their entering every year
into the customary Kabulayats.
At p. 768 Macleod C.J. stated :
"The relationship between the Khot and the Government, to my mind, is perfectly clear.
As stated in
Mr. Candy's report it is indubitably established that a
Khot's interest iiil his village is limited, not absolute; he
possesses in some measure a proprietary right; in fact
he is an occupant with all the rights and liabi'ities
affecting such a status.
The Khot has to secure to Government the payment of the village revenue, while the
village lands which he has to manage in accordance with
the restrictions mentioned in the Kabulayat fall under
three distinct classes.
These are { 1) Dharekari lands
the tenants of which have a transferable and heritable
right paying Dhara alone to the Khot; {2) Khotnisbat
lands which are either in the hands of pem1anent occupancy tenants or tenants with less peflllanent right payi
Fayda to the Khot and the Government assessment; and
{3) Khoti Khasgi lands, private lands, in the possession
of the Khot oJ' which he can make such use as he
pleases."
It was contended on behalf of the app~llants that the Sud of
1869 at p. 124-A of the paper book was an important documemt
3nd the Tribunal has not correctly appreciated the meaning of the
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(lJ 26 Bom. L.R. 754.
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SH1AMSUNDER v. MAHARASHTRA (Ramaswami, J.)
807
words Khalsa and Varkas.
We do not wish to express at 1:.is
stage any concluded opinion on the construction of this document.
We wish to make it clear that it will be open to the appellants to
show before the Special Deputy Collector how far this document
has a bearing on their claim to proprietary right of survey plot
nos. 130 a,nd 132.
It is clear that in the absence of a sanad or a deed or a grant
granting proprietary rights over the soil a Khoti is not the proprietor ol. the lands constituted as reserveq forest in the khoti village
and is not e~titled to any proprietary right in the uncultivated or
forest land. The legal position is correctly summarised in Dandekar's Law of Land Tenures, Vol. !, pp. 287-288 as under:
"S~ction 41 of the Land Revenue Code declares
that the right to all trees, bushwood, jungle or other
natural product, wherever growing, except in so far as
the same may be the property of individuals capable of
holdi·ng property, vests in Government.
Government
proprietorship of all trees is the rule and private rights
or proprietorship, if any, are merely exceptions to the
rule. The question whether a Khot has got the proprietary or any other limited right to the trees standing or
growing on lands in his khoti village depends ( 1) upon
the khot's inte'est in the soil
(2)
upon any express
grant or concession, and (3) upon the customary user.
if any.
If the first case, if the khot is the proprietor o.f
the soil, which is very hardly ilie case, he is the proprietor of all the trees standing or growing on the lands in
his khoti village. The trees upon the land, and the right
to cut down and sell those trees is incident to proprietorship of the land.
Jn such a case the principle h
quicquid plantatus solo solo cedi~. Ordinarily the khot
having no ownership over the soil, it has been held that
he is not entitled to cut timber either on uncultivated
or on forest lands.
Government has the right to take
such lands to make a forest reserve under the customary
law as well as under positive enactments."
·
It is necessary in this context to refer to the presumption that
forest tracts and old waste belong to Government unless tbe presumption is displaced by Positive evidence that Governm•nt has
granted rights in any particular tract or piece of land or has
consciously allowed adverse rights to grow therein.
(see Kodoth
Ambu Nair v. Secretary of State for India.(')
In Sadashiv Parshram Risbud v. The Secretary of Sl.ite
for
India( 2 ) the question arose whether the khots were entitled to
(I) 51 I.A. 257.
(2) 20 !lorn. L.R. 141.
808
SUPREME COURT REPORTS
[1970] 2 S.C.R.
recover the sale proceeds of certain teak trees sold by Government grown on Varkas lands.
In the alternative the khots claimed one-third share of the sale proceeds relying upon the clause
in the kabulayat. It was held by the Bombay High Court that
as between the khots and the Government the matter in dispute
was concluded by the kabulayat and the khot could not obtain
more than one-third of the proceeds of the sale of the trees. It
was held by Shah, J ., that the Dunlop's Proclamation could apply
to Varkas lands in a 1.'..'loti village; but if any person claimed the
benefit of the Proclamation he should prove that the land, on which
the trees stood, was his in a popular sense, that is, it was sufficiently
marked out as being in his permanent occupation in his own right
so as to make it properly describable as his land.
On the facts
of that case it was held that the khots had no claim to the teak
trees under s. 40 of the Land Revenue Code and they had failed
to prove that they were entitled to the benefit of Dunlop's Proclamation in respect of the Varkas lands in question.
tn the present case the Maharashtra Revenue Tribunal has
remanded the case for retrial to the Special Deputy Collector,
Kolaba for decision on the following points :
( 1) · Whether the appellants prove that they are the
proprietors of the lands in the viHage of Kotheri or in
the lands attached as a reserved forest to the said village;
(2) Whether the appellants are entitled to any
compensation for the village gaothan lands or lands
under the rivers and nallas.
This claim is based on the
allegation of the appellants that they are the proprietors
of the village;
( 3) Whether the appellants are entitled, as a customary incident of the Khoti, to a share in the forest
revenues of the village;
( 4) What is the market value of the loss of sudl
share or right, if any, in the gaothan and river and
nalla lands.
We affirm the above order of remand and further direct that
an opportunity should be given by the Special Deputy Collector
to both sides to adduce such evidence as they ch0ose on these
points.
After taking such evidence the Special Deputy Collector
\viii pronounce the award in the light of the law laid down in this
judgment.
Subject to these observations we affirm the order of
the Maharashtra Revenue Tribunal dated February 25, 1965 and
dismiss the appeal. There will be no order as to costs.
V.P.S.
Appeal dismissed.
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