MAHISAGAR BHATHA CO-OPERATIVE AGRICULTURE SOCIETY LTD. BORSAD ETC. ETC.versusTHAKORE SHREE JAGDEVSINHJI RAMSINHJI (DEAD) BY L.RS. AND ANR. ETC. ETC.

    MAHISAGAR BHATHA CO-OPERATIVE AGRICULTU~l!!                                  A
           SOCIETY LTD. BORSAD ETC. ETC.
                          v.
   THAKORE SHREE JAGDEVSINHJI RAMSINHJI (DEAD) BY
               L.RS. AND ANR. ETC. ETC.

                           SEPTEMBER 2, 1992                                     B

             (KULDIP SINGH AND N.M. KASLIWAL, 11.)

       Bombay Taluqdari Tenure Abolition Act, 1949: Section 6. Ex-
Ru/er-Merger AgreemenH..and allotted as part of merger agreemenH..itiga- C
lion as to applicability of Taluqdari Act-State allotting land to C<Hlperative
society of farmers during pendency of litigation-Society improving the land
and making it cultivable-Held ruler as Taluqdar was entitled to full ownership
of land-Land does not vest in State-lJut directions given not to disturb the
settled farmers-Ru/er should be allotted other suitable land permissible under D
Gujarat Agricultural Land Ceiling Ac~ 1960.
      The respondent, ex·Rnler of Ometa State, filed a snit for delcaratlon
that be. was the owner or snit properties, land 'A' Kothlakhad Bbatha and
landed proerty plot 'B' Mabmedpura land, and for recovery or possession
and for rendition of acconnts or Income. His case was that at the time or        E
merger of the State with Union or India be was granted five villages as
private properties. As regards the State Govemment's case that the suit
property land 'A! vested In the State under Section 6 or the Bombay
Taluqdarl Tenure Abolition Act, 1949 It was contended for the respondent
that the suit lauds were Bbatha lands beyond the purview or the Act.
During the pendency of the litigation the State of GuJarat allotted the suit     F
lands to the appellant Co-operative Society or landless m8l'llinal farmers
who Improved the land for cultivation.

       The Trial Court held that the respondent was the owner of the suit
laud 'A' and accordingly granted a decree for delivering the possession of
this land. It also held that be was entitled to accounts for this land but bis   G
suit as regards Mabmedpura Bbatha land 'B' was dismissed.

      Against the judgement of the Trial Court appeals were filed by the
State of Gujarat, Co-operative Society and the respondent. The High
Court dismissed the appeals of State and the Society except setting aside H
                                     317
    318                 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.

A the decree for taking accounts. The decree passed by the Trial Court for
    declaraing ownership and possessions In respect ofland 'A' was confirmed
    but the respondent's appeal agianst the dismissed of bis claim for Mah·
    medpura Bhatha land was dismissed.

          In appeal to this Court it was contended on behalf of the State that
B the land in question came to be vested in the State under Section 6 of the
    Bombay Taluqdari Act. On behalf of the appellant-society it was con-
    tended that (1) the Gujarat Agricultural Land Ceiling Act, 1960 was
    applicable to the land in question and the successors of the deceased
    respondent are bound to surrender the land in excess of the ceiling area;
C   (2) Instead of dispossessing the farmers who are cultivating the land for
    a long time, the State should allot some other land to the respondent in
    lieu of the land in question.

          Dismissing the appeals, this Coui;t,

D         HELD: 1. The High Court was right in taking the view that the
    respondent was the owner and entitled to a decree for possession for the
    land situated in Kothiakhad village. The Government bad agreed the
    claim of the respondent to the live villages as his private property as a
    part of the merger agreement and there is no escape from the conclusion
E   that the land in question which lies in one of these villages, namely,
    Kothiakhad being the personal private property of the respondent could
    not fall within the ambit of Seciton 6 of the Taluqdari Abolition Act.
                                                                    [322 A·B]

F         2. The State Government had allotted the land in question in the
    year 1964 and a large number of landless marginal farmers have improved
    the land for cultivation by their own labour and it would cause great harm
    and injustice to dispossess and dislodge these large number of families of
    poor farmers from the land in question. On the other band the respondent
    has proved bis ownership and right of possession over the land. But It is
G   not disputed that the provisions of the Land Ceiling Act are applicable
    and the legal representatives of the respondent are bound to surrender the
    area in excess of the ceiling permitted under the Ceiling Act.
                                                             [322-H, 323 A·B]

H         3. In the circumstances of the case it is directed that the legal
MAHISAGAR CO-OP. SOCIETY v. THAKORE JAGDEVSINHJI [KASLIWAL, J.]319


representatives of the respondent shall file statement specifying the par- A
ticulars of the lands as required under the Gujarat Agricultural Litnd
Celling Act to the Competent Authority which shall determine the extent
of surplus land, if any, and also the 'permissible area' of the respondent.
The State Government shall allot an area equivalent to the 'permissible
area' as determined by the authorities under the Act, to the legal repre- B
sentatlves of the respondent in the nearby vicinity or at any other place
acceptable to them. (323 B·E)

      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1150-51
of 1979.

     From the Judgment and Order dated 6.4.78 of the Gujarat High
                                                                             c
Court in First Appeal Nos. 799 and 787 of 1971.

     Asbok H. Desai, Hamid Quareshi, P.H. Parekh and U. Sagar for the
Appellants.
                                                                             D
     R.F. Nariman, Ms. Rani Chhabra, Dushant Dave, Bimal Roy and
Anip Sacbtbey for the Respondents.

     The Judgment of the Court was delivered by

       KASLIWAL, J. Both these appeals by grant of Special leave are E
directed against the common Judgment of the High Court of Gujarat dated
6.4.1978. This litigation bas a long chequered history but we would suc-
cinctly narrate such facts which are necessary for the disposal of these
appeals. Thakor Sb. Jagdevsinghji since dead and now represented through
his heirs and legal representatives (hereinafter referred to as the plaintiff) F
was the ruler of Umeta State and he was also a registered Talukdar and
owner of five villages, including village Kothiyakbad in the State of Gujarat.
This Village Kothiyakbad is situated on the bank of river Mahi. The
plaintiff filed a suit for declaration that he was the owner of suit land 'A'
Kothiakbad Bhatha bearing survey No. 247 admeasuring 100 acres and 38
gunthas and of landed property plot 'B' referred to as Mahmedpura land G
and for recovery of possession and for rendition of accounts of income
from 1.11.1952 till the date of handing over possession. The plaintiff had
claimed the suit properties as his personal properties as a Talukdar and in
the alternative it was alleged that the suit lands were Bhatha lands beyond
the purview of the Bombay Talukdar Tenure Abolition Act, 1949 H
    320                   SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.

A (hereinafter referred to as 'Talukdari Abolition Act') which came in to
    operation w.e.f. 15.8.1950. The alternative case was put up by the plaintiff
    intp meet the allegation of the State Government that the suit property lot
    'A' had vested in the State by virtue of Section 6 of the Talukdari Abolition
    Act. The plaintifrs case in this regard was that the princely State of Ometa
B   had merged in the Union of India and at that time by a merger agreement
    dated 24.5.1948 five villages were allowed as private properties of the
    plaintiff and the suit lands situated in one of such village Kothiakhad
    remained unaffected by the provisions of the Talukdari Abolition Act.

           The Trial Court by Judgment dated 30.3.1971 declared that the            •
c   plaintiff was the owner of the suit land survey No. 247 admeasuring 100
    acres, 38 gunthas and also granted a decree for deliverig the possession of     ~
    ths land and also held that the plaintiff was entiled to accounts for this      i~-;


    land. The suit as regards Mahmedpura Bhatha land 'B' was dismissed. It
    may be mentioned that the State of Gujarat allotted the suit lands to           ;
    Mahisagar Bhatha Co-operative Agricultural Co-operative Society                  '
D   Limited, Gambhira (hereinafter referred to as 'the Society') during the
    pendency of this litigation and as such the Society was also impleaded as
    defendant in the suit. Aggrieved against the Judgment and decree of the
    Trial Court, first appeal No. 787 of 1971 was filed by the State of Gujarat,
    first appeal No.799 of 1971 by the Society and first appeal No.834 of 1971
E   by the plaintiff. The High Court disposed of all the three appeals by a
    common Judgement dated 6.4.1978. The High Court dismissed the first
    appeals Nos. 787 of 1971 and 799 of 1971 except setting aside the decree
    for taking accounts. Subject to the above variation, the decree passed by
    the trial court for declaring ownership and possession in respect of land
    survey No.247, the Judgement and decree passed by the Learned Trial
F   Judge was confirmed. The appeal No.834 of 1971 filed by the plaintiff
    against the dismissal of his claim for Mehmadpura Bhatha land, the High
    Court dismissed the appeal and upheld the Judgment and decree of the
    Trial Court.

G         The State of Gujarat and the Society have now come in appeal to
    this Court but no appeal has been filed by the plaintiff, as such we are only
    concerned with the Kothiakhad Bhatha land of survey No.247.
                                                                                     /II
        We have he.ard Learned counsel for the parties and have thoroughly
  perused the record. It was contended on behalf of the defendant/appel-
H !ants that the land came to be vested in the State of Gujarat under the
MAHISAGAR CO-OP. SOCIETY v. IBAKORE JAGDEVSINHJI [KASLIWAL, J.]321

provisions of Section 6 of the Talukdari Abolition Act. We do not find any A
force in this contention. Exhibit 102 merger agreement dated 245.1948 has
been placed on record which clearly mentioned that the plaintiff as the
Talukdar of Umeta State was entitled to the full ownership use and
enjoyment of all the private properties. An inventory of such private
properties which formed part of such merger agreement clearly mentioned
five.talukdari villages in Borsad Taluka of Kaira district. Exhibit 129 letter B
dated 31st January, 1949 written by the Collector and Chief Administrator
Kaira to the plaintiff clearly mentiones that the matter regarding the five
talukdari villages in Borsad Taluka had been referred to Government for
orders. The Government then vide Ex. 128 dated 11.4.1950 clearly admitted
the five talukdari villages as the private property of the plaintiff. The letter
Ex.128 reads as under:                                                           C
                                               D.C. No.3449/46/13034 G,
                                             Political and services Deptt.
                                       Bombay Castle, dated 11th April'50

My dear Thakor Shaheb,                                                          D

       I am to say that the Inventory of private property securities and cash
balances furnished by you in accordance •vith articles 3 of the instrument
of merger executed by you ha• been considered. A copy of the Inventory
as finally, accepted, is attached for your information. The decisions sub-      E
milted therein have the approval of the Government of India in the
Ministry of State.

       As regards the five Talukdari villages claimed by you as your private
property, I am to say that Government has agreed to concede your claim
to these villages but as the Revenues of these villages have been included
in the average annual Revenues of Umeta State for purposes of calculation
                                                                                F
of your privy purse, the same (i.e. the Revenues of these villages) have now
been excluded from the average Revenues of the State and your privy purse
has been finally fixed at Rs.14,450 per annum instead of at Rs.19,200 per
annum as previously communicated to you.
                                                                                G
     I am to request you to acknowlege the receipt of this letter and of
copy of the inventory enclosed herewith.

                                                            Yours sincerely,
                                                                        Sd/-
                                                                M.D. Bhatt. H
    322                   SUPREME COURT REPORTS[l992) SUPP. 1 S.C.R.

A         The above letters go to show that the Government had agreed the
    claim of the plaintiff to the five villages as his private property as a part of
    the merger agreement and there is no escape from the conclusion that the
    land in question which lies in one of these villages, namely, Kothiakhad
    being the personal private property of the plaintiff could not fall within the
B   ambit of Section 6 of the Talukddri Abolition Act. We fully agree with.the
    view taken by the High Court that the plaintiff was the owner and entitled
    to a decree for possession for the land bearing survey No.247 admeasuring
    100 acres and 38 gunthas situated in Kothiakhad village.


c          1t was then contended by learned counsel appearing for the society
    that it is a co-operative society having 29_1 small farmers who are called
    marginal farmers. These landless farmers had formed a co-operative
    society and the Gujarat Government as a matter of policy was to give land
    to such co-operative societies of landless marginal farmers. An application
D   for allotment was made for the land in question on or about 3.t'.1960. The
    Government by order dated 1.7.1960 agreed to lease out the land to the
    society under Rule 40 of the Land Revenue Rules, 1921. The lease deed
    was executed on or about 2nd July, 1964 and after getting subsidy and loan,
    the poor farmers improved the land and made it cultivable. The land while
E   in possession of the plaintiff was uncultivable and by dint of labour of the
    large number of landless and poor farmers pipelines were laid, tubewells
    were constructed and some portion of the land was made cultivable in 1964
    and full cultivation was achieved by the year 1966-67. It was thus submitted
    on behalf of the society that for nearly 30 years the poor farmers and their
    families are residing and cultivating the land in question and it would not
F   be in the interest of justice to dispossess them from the land in question.
    It was also submitted that the Gujarat Agricultural Land Ceiling Act, 1960
    applies to the land in question and the plaintiff (since deceased) and his
    successors and legal representatives are bound to surrender the land in
    excess of the ceiling area. It was thus submitted that instead of dispossess-
G   ing the farmers who are in possession of the land in question, the State
    Government may be directed to allot some other land to the plaintiff in
    lieu of the land in question.

          We have given our careful consideration to the human problem
H arising in this case. The state Government had allotted the land in question
MAHISAGAR CO-OP. SOCIETY "· THAKOREJAGDEVSINHJI [KASL!WAL. J.]323

in the year 1964 and a large number of landless marginal farmers have A
improved the land improved for cultivation by their own labour and it
would cause great harm and injustice to dispossess and dislodge these large
number of families of poor farmers from the land in question. On the other
hand the plaintiff has succeeded in proving his ownership and right of
possession over the land admeasuring 100 aeres and 38 gunthas. It is, B
however not disputed that the provisions of Land Ceiling Act shall apply
and the legal representatives of the plaintiff are bound to surrender the
area in excess of the ceiling permitted under the Ceiling Act Thus taking
in view the entire facts and circumstances of the case we deem it proper
in the interest of justice to mould the relief in the following manner:-
                                                                                  c
      (1) The respondents - Legal representatives of the plaintiff shall file
statement specifying the particulars of the lands as required under the
Gujarat Agricultural Land Ceiling Act, 1960 (Act) to the competent
authority under the Act within two months from today.
                                                                                  D
      (2) The competent authority, thereafter, shall determine the extent
of surplus land, if any, and also the "permissible area" of the respondents,
within three months of the filing of the statement.

      (3) The State Government shall allot an area equivalent to the
"permissible area" as determined ty the authorities 'lnder the Act, to the        E
respondents - legal representatives of the plaintiff in a nearby vicinity or at
any other place acceptable to them. The possession of such equivalent land
shall be given by the State Government to the respondents - legal repre-
sentatives of the plaintiff within three months of the decision of the
authorities under the Act                                                         F
      (4) The respondents - legal representatives of the plaintiff shall not
execute the decree for possession till the determination of the ceiling
proceedings as well as the handing over possession of the equivalent land
as directed in para 3 above.
                                                                                  G
      (5) In case of failure on the part of the Government to allot
equivalent land in exchange to the respondents as directed in para 3 above,
it would be open for the respondents - legal representatives of the plaintiff
to execute the decree for obtaining possession of the land in question itself
to the extent of the permissible area determined under the Act.               H
    324                 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.

A        Apart from the above directions given by us, the State Government
    would be free to solve the problem in any other manner by consent of the
    respmdents · legal representatives of the plaintiff.

          The appeals are dimissed with the above directions. No costs.

    T.N.A.                                                Appeals dismissed.