Bombay High Court
Union Of India Through The Deputy Salt … vs The Estate Investment Company Pvt.Ltd. … on 30 April, 2026
2026:BHC-AS:20811-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.1430 OF 2019
Union of India, ]
Through the Deputy Salt Commissioner, ] ..Appellant/
Ballard Estate, Mumbai - 400001. ] Org. Plaintiff
Versus
1. The Estate Investment Company Pvt. Ltd. ]
Sakseria Chambers, Fort, Mumbai-1. ]
2. M/s Mira Salt Work Company, ]
Lalji Mansion, Lohar Chawl, ]
Mumbai-400001. ]
3. The State of Maharashtra ]
4. The Collector of Thane ]
5. The Additional Commissioner, ]..Respondents
Konkan Division, Mumbai ]Org.Defendants
Mr. Anil C. Singh, Additional Solicitor General with
Mr. Aditya Thakkar, Ms. Savita Ganoo, Mr. Ameya
Mahadik, Mr. Siddha Pamecha, Ms. Simantini Mohite,
Mr. Ashish Mehta, Mr. Adarsh Vyass, Mr. Rama Gupta,
Mr. Rajdutt Nagre and Mr. Krishnakant Deshmukh,
Advocates for the Appellant-Original Plaintiff.
Mr. Girish Godbole, Senior Advocate, with Mr. Saurabh
Kirpal, Senior Advocate, Mr. Jaydeep Oza and Mr. Mustafa
Nulwala, i/by Ms. Tabbassum Achhan, Advocates for
Respondent No.1.
Mr. Aspi Chinoy, Senior Advocate, with Mr. Yohaan Shah,
Ms.Rujuta Patil, Mr. Hasan Mushabber and Adv. Divishada
Desai, Advocates, i/by Negandhi Shah & Hidayatullah, for
Respondent No.2.
Mr. A.R. Patil, Additional Government Pleader for
Respondent Nos.3 to 5-State of Maharashtra.
CORAM : SHREE CHANDRASHEKHAR, CJ &
GAUTAM A. ANKHAD, J.
Judgment is reserved on : 13th February 2026.
Judgment is pronounced on : 30th April 2026.
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PER, GAUTAM A. ANKHAD, J.
This First Appeal assails the judgment dated 13 th April
2018 passed by the learned 7th Joint Civil Judge, Senior
Division, Thane, whereby Special Civil Suit no.771 of 2011
filed by the appellant seeking declaration of its title over a
piece of land comprised under Mira, Manek/Shapur Salt
Works, at village Bhayander, district Thane has been
dismissed ("impugned judgment").
2. The appellant filed the suit seeking the following
reliefs:
"(A) It be declared by this Hon'ble Court that the plaintiffs are
owners of the suit lands bearing Survey Nos. schedule A
covered by Mira, Manek/Shapur Salt Works, village
Bhayander, District Thane and that the defendants have no
right, title or interest in the same;
(A)(1) The plaintiffs be granted leave U/s. 80(2) of CPC to file this
suit before expiry of statutory period of two months after
service of the same upon defendant nos.3 to 5;
(B) The orders passed by the Collector dated 18 th November
2002 in Application No.4 of 1999 filed by the defendant no.2
under section 20 MLRC, 1966 dated 8 th October 2010
passed by defendant no.5 in Appeal Nos.38 and 97 of 2003
and Appeal No.133 of 2008 as also the order passed by the
Collector dated 5th September 2008 under the provisions of
Salsette Estates Abolition of Land Revenue Exemption Act,
1951 be set aside;
(C) The defendant nos.1 and 2 be directed to decreed and order
to hand over vacant and peaceful possession of the suit
land bearing survey nos. as per schedule A covered by Mira,
Manek/Shapur Salt Works, village Bhayander, District
Thane;
(D) The defendants by themselves, their agents and servants be
restrained by a permanent order of injunction of this Hon'ble
Court from transferring, alienating or creating any third-
party interest in the suit land and from using the same for
any purposes other than salt manufacture and for doing any
construction work on the same and from developing it;
(E) For interim and ad-interim relief in terms of prayer clause/s
above;
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(F) The defendants be decreed, directed and ordered to pay
sum of Rs.2,078=00 towards damages as mentioned in the
particulars of the plaint;
(G) This Hon'ble Court be pleased to direct enquiry into mesne
profit earned by the defendants as per the provisions of
Order 20 Rule 11 of C.P.C.;
(H) For costs of this suit;
(I) For such other and further reliefs, as this Hon'ble Court
deems fit and proper be granted."
3. On 21st July 2012, respondent nos.1 and 2 filed their
written statements opposing the suit on several grounds.
Respondent nos.3 to 5 did not file any written statement.
The following issues were framed by the trial Court on 25 th
June 2013 and answered as under:
Sr.No. Issues Findings
Whether plaintiff proves that it is the owner of the suit
1. No
property?
2. Whether the suit is maintainable? No
Whether this Court has jurisdiction to try and entertain the
3. No
suit?
4. Whether the suit is within limitation? Yes
5. Whether the suit is barred by principle of res-judicata? No
6. Is the plaintiff entitled to possession of suit property? No
7 Is the plaintiff entitled to relief claimed as prayed for? No
8 What order? No
4. The appellant led evidence of Mr. Harikrishna
Agarwal, the then Assistant Salt Commissioner (PW-1), in
an endeavour to prove its case on title to the suit lands.
Respondent nos.1 and 2 also led documentary and oral
evidence of one witness each. Respondent nos.3 to 5 did
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not lead any evidence nor cross-examined any of the
witnesses who had tendered evidence in the matter, on
behalf of the other parties. After considering the evidence
on record, the trial Court dismissed the suit inter alia
holding as follows:
"17. It is admitted position that prior to this suit many legal
proceeding were initiated in respect of the suit property.
Those are;
1) Appeal No.133/08 filed by defendant no.1 challenging
the order dtd 07/08/1992 passed by SDO directing to
delete the name of defendant no.1 from the other rights
column in the Mutation Entry No.4996 dtd.
28/01/1989.
2) Appeal No.14/1983 in which the Additional Collector
directing to enter the name of plaintiff as holder of the
suit property and to enter the name of defendant no.1
in the other rights column.
3) Appeal No.9/1993 before the Collector for deleting the
name of defendant no.1 from the record of rights.
4) Writ Petition No.2861/1983 filed by defendant no.2
challenging the notice dtd. 16/07/1983.
5) W.P. No.2333/1983 directing the plaintiffs to renew
the license without insisting upon requirement to
execute lease.
6) Special Leave Petition No.14528 of 1998 / Civil Appeal
No.3055/1999 challenging the order passed in Civil
Appeal No.6743/1996 filed by the plaintiff against the
Gajanan Laxman Desai.
7) RTS Application No.4/1999 before the District
Collector, Thane U/s. 20 of M.L.R.C. (Maharashtra
Land Revenue Code) 1966.
8) Appeal No.38/03 filed by defendant no.2 against the
order passed by the Collector dtd. 18/11/2002.
9) Appeal No.97/03 filed by the Plaintiff against the State
of Maharashtra and defendant no.2.
18. It is also admitted position that defendant no.2 has
purchased the suit property by various 95 sale deeds from
the occupants of the suit property. Those sale deeds were
executed in between 07/05/1928 to 15/06/1951. It is also
not in dispute that at the time of execution of those sale
deeds, those lands were the agricultural lands and was
forming the part of Eksali land under the Indenture of 1870
.....
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24. Defendant no.1 was in use and in occupation of the suit
property. Defendant no.1 is declared as a land holder as
per the notification (Exh.267) issued after the enactment of
B.T. and A.L. Act, 1948. Further by the notification
(Exh.267) the Government of Bombay assumed the
management of the Estate under the indenture of lease U/s.
44 of the B.T. & A.L. Act. The management assumed was
thereafter terminated by the notification (Exh.260) on
01/10/1957 issued by the Governor of Bombay in the
Bombay Government Gazette which shows that till the
issuance of the notification defendant no.1 was in control
and management of the Estate and was exercising the
rights acquired under the Assignment Deeds of 1945. The
Government of India has come into existence in 1937. On
23/03/1938 the letter (Exh.191) was written by the then
Collector Salt Revenue to the Collector of Thane in which the
partition of Mira Salt Works was proposed. By the letter
(Exh.191) request was made for the inclusion of additional
land belonging to the Government in the salt work.
Therefore it itself shows that if the suit property was vested
in the Federal Government then the powers to grant the
permission was not addressed to the Collector, Thane.
Section 172 of the Government of India Act provides that
"All lands and buildings which immediately before the
commencement of part III of this act were vested in His
Majesty for the purpose of Government of India as from that
date". The notification (Exh.192) is produced by the plaintiff
in which the schedule of the lands and building for federal
purpose is given. The suit property is not included in the
said Schedule. The plaintiff also failed to produce any
document to show that the suit property was held for
Federal purpose. In the judgment (Exh.262) passed in Civil
Appeal No.288 of 1956 it is mentioned that, "Relying on
those provisions it was urged that by reason of assumption
of management of the lands in dispute under Section 44 of
B.T. & A.L. Act, the lands had become vested in the State
Government and the Plaintif11 ptf (i.e. Defendant No.1
herein) has no interest left therein."
25. In the Judgment (Exh.262) passed in Civil Appeal
No.288/1956, the State Government given an admission
that the land belongs to defendant no.1 and only on the
basis of Notification under Section 44 of B.T. & A.L. Act, the
lands had become vested in the State Government. The
statement of the State Government shows that the plaintiff
was never the owner of the suit property. Moreover
defendant no.1 has filed the suit bearing no.123/1955,
288/1972, 244/1978 for the account of the management in
which the decrees for the accounts were passed and those
decrees were confirmed even up to the Hon'ble Apex Court.
26. As per direction of the Hon'ble Apex court dtd. 18/11/2002,
the Collector in the Application No.4/1999 passed the order
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in pursuance to the proceeding U/s. 20 of the Maharashtra
Land Revenue Code for the declaration of the title of the suit
property. The plaintiff was also the party in the said
proceeding. In the said proceeding the collector held that
neither defendant no.2 nor the plaintiff were the owners but
the Collector held defendant no.3 i.e. State Government was
the owner of the suit property. The order of Collector was
challenged by defendant no.2 and also by the plaintiff in the
Appeal No.38/03 and 97/03 respectively before the Konkan
Division Bombay. In those proceeding defendant no.1 was
allowed to participate in respect of his appeal (RTS
No.133/08). All the three appeals were disposed of by the
order (Exh.75) by which the Commissioner, Konkan Division
Bombay set aside the order passed in the Original
Application No.4/1999. Appeal No.133/08 was also
allowed by which all the adverse orders passed against
defendant no.1 by the Revenue Authorities were set aside
and Appeal No.97 of 03 filed by the plaintiff was dismissed.
By the order defendant no.1 was declared as the owner of
the suit property and defendant no.2 was held as a tenant
for manufacture of the salt. The collector also in the
proceeding U/s. 3 of Salsette Act accepting the claim of
defendant no.1 and passed the Order (Exh.76) by which the
Tahsildar was directed to enter the name of defendant no.1
as land holder i.e. superior holder in Kabjedar column. The
order (Exh.76) was confirmed in writ petition by the Order
(Exh.77) dtd. 14/07/2011. The Order (Exh.77) was
challenged in the Letter Patent Appeal. However the said
appeal was dismissed on 12/10/2011. The order of the
Collector was confirmed by the Hon'ble Apex Court in
Special Leave to Appeal (Exh.79) by the Order dtd.
28/11/2011. The plaintiff and the Salt Department have
never intervened inspite of the fact that the name of
defendant no.1 was ordered to enter in the record of rights
as superior holder from 1951. Not only this the original
grantee i.e. Ramchandra Laxmanji was also referred to as
the Superior Holder by the Chief Secretary of the British
Government in the Order (Exh.182) dtd. 03/03/1869.
License No.48(Exh.220) was issued to defendant no.2 for
Manek Mira Salt Works by the salt department. While
issuing the license, the provisions of relinquishment of right
of occupation was deleted and it was substituted that the
Collector may in consultation with the Collector of Central
Excise and Salt Revenue, grant permission for the use of
such land for such purpose subject to payment of non-
agricultural assessment leviable on the land and to such
further conditions as the Collector may, subject to the
general or special orders of the State Government, impose.
Therefore defendant no.2 by the letter (Exh.234) pointed out
that this condition was not applicable to Manek Mira Salt
Works. The license to run Manek Mira Salt Works expired
on 20/6/1983 and thereafter the Deputy Salt Commissioner
Bombay issued the notice (Exh.235) to defendant no.2 in
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which it is mentioned that the said salt works stands on the
Central Government lands and held by defendant no.2 on
license. Defendant No.2 challenged the notice in the Writ
Petition No.2861 of 1983 filed against the Plaintiff in which
defendant no.2 also prayed for the grant and renewal the
license of Manek Mira Salt Works by the order passed in the
said writ petition. The Hon'ble High Court grant interim
license in favour of defendant no.2 and the notice (Exh.235)
was set aside. Thereafter the plaintiff filed C.A.
No.3055/99 against the said order in the Supreme Court.
The Hon'ble Supreme Court passed the order and directed
defendant no.2 to approach the Collector, Thane for deciding
the title of the lands use for manufacture of the salt.
Defendant no.2 filed the petition U/s. 20 of Maharashtra
Land Revenue Code for declaring him as an owner of the
suit property which was decided by the Order (Exh.62).
27. The plaintiff witness Hari Krishna admitted that the land s
purchased by defendant no.2 at Exh. 83 to 181 are the
private lands and the plaintiff has not raised any objection
in that regard. Further it was also admitted by him that the
land of Manek Salt Works was privately owned and
occupied by defendant no.2. He also admitted that the
Shapur Salt Works and Manek Salt Works were formed as
per the sanction given by the Collector of Salt Revenue.
Thus the contention of ownership was contradicted by the
plaintiff's own witness.
28. To sum up, since 1866 Late Ramchandra Laxmanji and his
successors which also include defendant nos.1 and 2 are in
possession of the suit property. The plaintiff has not filed
any notification on the record to show that the suit property
is belonging to Federal Government. Defendant no.2 is in
possession of the suit property. The provisions of
Government of India Act, 1935 are not applicable to the
Indenture of Lease. In such circumstances, in view of the
above discussion there is nothing on the record to show that
the suit property belongs to the Federal Government and by
which the plaintiff can claim ownership on it. Therefore, the
plaintiff has failed to prove his ownership over the suit
property and they are certainly not entitled to claim the
consequential relief of claiming the possession of the suit
property. Hence, the plaintiff is also not entitled for the
possession of the suit property. Accordingly, I answer Issue
no.1 and 6 in the negative."
Brief history and relevant facts of the case
5. Before recording the arguments advanced by the
parties, having regard to the chequered history of the
matter, the relevant facts are briefly summarised as follows:
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(a) By an Indenture dated 7th November 1870 ("the
Indenture"), the Secretary of State for India in
Council granted and demised to Ramchunder
Luxumonjee, his heirs, executors and
administrators ("the Grantee") for 999 years, the
villages of Bhayander, Ghodbunder and Mira,
admeasuring approximately 3,688 acres, comprising
lands of tenures of Inam, Sooti, Wurkus, Assessed
Sweet Batty, Assessed Eksali and Khajun lands,
subject to payment of an annual rent of Rs.6,791
and 9 Annas and 6 Pies per annum payable in two
equal instalments on 15th December and 15th April
in each year. The Indenture inter alia permitted the
Grantee to assign the lands or any part thereof,
upon notice to the Collector or other revenue
authorities. In respect of lands other than Khajun
lands, the Grantee was also vested with the right to
recover land revenue and to forfeit occupancy in the
event of default.
(b) The present suit concerns the Eksali lands, which
is a smaller portion of lands approximately 220/227
acres out of the larger land parcel of 3,688 acres.
The Indenture also contained various other
covenants and obligations binding upon the
Grantee.
(c) On 1st April 1937, the Government of India Act,
1935 ("1935 GOI Act") came into force. On 16 th July
1938, a notification was issued under section 172(1)
(a) of the said Act, certifying the lands and buildings
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that vested in His Majesty for the purposes of the
Government of India and which were retained by the
Governor General in Council for future use. The
Schedule annexed to the notification enumerates
lands and buildings used by the Bombay Salt
Department. Significantly, the suit lands do not find
mention in the said Schedule.
(d) In 1945, respondent no.1 acquired the rights, title
and interest of the Grantee under two Deeds of
Assignment dated 22nd March 1945 and 5th April
1945.
(e) Around 1945, certain disputes arose between
respondent no.1 and the predecessors-in-title of
respondent no.2 (at that time - Shapurji Manekji
Kotwal & Sons), resulting in respondent no.1 filing
Special Civil Suit no.58 of 1945 before the Civil
Judge, Senior Division, Thane. Respondent no.1
inter alia sought a declaration that the
predecessors-in-title of respondent no.2 had no
right to hold the lands in derogation of respondent
no.1's rights. Along with reliefs of eviction,
respondent no.1 sought recovery of rent and
damages. The suit was partly decreed on 25th
February 1947. The Court held that nothing in Rule
76 framed under the Bombay Land Revenue Code,
1921 ("1921 BLRC") deprived respondent no.1, as a
superior holder of its right to recover the 1/3 rd share
of paddy from the defendants therein. The Court
further held that the defendants' contention that the
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remedy of the plaintiff lay against the Government
of India and that it was a necessary party to the suit
could not be accepted as there was no contractual
relationship between the plaintiff and the
Government regarding payment of rent nor any
privity of estate. Appeal no.236 of 1947 preferred by
respondent no.1 against the said judgment was
dismissed by a Division Bench of this Court on 12 th
July 1950.
(f) On 19th December 1949, the Government of Bombay
(Revenue Department), in exercise of powers under
Section 2(9) of the Bombay Tenancy and
Agricultural Lands Act, 1948 ("BTAL Act"), issued a
notification declaring respondent no.1 as the "land-
holder" of the suit lands covered by the Indenture.
By a further notification also dated 19 th December
1949 issued under Section 44 of the BTAL Act, the
State Government took over possession and
assumed management of respondent no.1/the
landholder's estate. Subsequently, by a notification
dated 1st October 1957, this action was reversed by
the State Government.
(g) Meanwhile in 1951, the State Government enacted
the Salsette Estates (Land Revenue Exemption
Abolition) Act, 1951 ("Salsette Act") to abolish the
exemption from land revenue enjoyed by holders of
certain estates situated in villages specified in the
Schedule thereto. The Schedule included the
villages of Bhayander, Mira and Ghodbunder where
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the suit lands are situated. By virtue of the said
enactment, the State Government now exercised
dominion over the suit lands and subjected them to
the general regime of land revenue.
(h) In 1955, respondent no.1 instituted Suit no.123 of
1955 against respondent no.3 (then State of
Bombay) before the Civil Judge Senior Division,
Thane, seeking accounts of the income derived from
the estate during the period the State Government
had assumed management under Section 44 of the
BTAL Act. After a contest, a preliminary decree for
accounts was passed in favour of respondent no.1.
On 14th September 1956, the State Government filed
Civil Appeal no.288 of 1956, which was dismissed
on 14th December 1957. A final decree was
thereafter passed. Appeal no.95 of 1977 and Second
Appeal no.784 of 1980 filed by the State
Government were dismissed on 13th February 1980
and 27th January 1988 respectively. In the order
dismissing the Second Appeal, a learned Single
Judge of this Court rejected the State's reliance on
the Salsette Act and held that Salsette Act merely
altered the legal status of the transferees of
Ramchunder Luxumonjee from sanad-holders to
owners and it did not affect respondent no.1's suit
claim arising from wrongful dispossession.
(i) A Special Leave Petition no.11883 of 1988 filed by
the State Government was dismissed by the Hon'ble
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Supreme Court on 3rd November 1988. This
concluded the litigation between the State
Government and respondent no.1 which had
commenced in 1955 due to the action of the State
Government of taking over possession and
management of respondent no.1 under section 44 of
the BTAL Act.
(j) On 16th July 1983, the Salt Department of the
Union of India, for the first time, issued a notice to
respondent no.2 requiring it to execute a lease in
respect of its lands under Rule 76 of the provisions
of 1921 BLRC as a condition precedent for renewal
of Salt Licence no.48 which was issued in 1950.
Respondent no.2 challenged the said notice by filing
Writ Petition no.2861 of 1983 before this Court.
Similar notices issued to other salt manufacturers
were also challenged in separate writ petitions. In
all these matters, on 23rd June 1993, the High Court
directed the appellant to renew the salt licences
without requiring the manufacturers to surrender or
cede their title in respect of the lands. On 25 th
March 1996, a batch of connected Special Leave
Petitions preferred by the appellant against the High
Court order dated 23rd June 1993 were dismissed by
the Hon'ble Supreme Court. While doing so, the
Hon'ble Supreme Court directed respondents
therein to approach the Collector/ District
Magistrate for determining the issue of title within a
period of six months from the date of the order. The
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order dated 25th March 1996 of the Hon'ble
Supreme Court is quoted:
"Leave granted.
We have heard the learned counsel on both sides.
In the appeal arising out of SLP no.15356 of 1992 dated
26th February 1996, the Division Bench of the High Court
in Writ Petition no.2333 of 1983 by order dated 29 th July
1991 directed that the Union of India cannot insist upon
the respondents conceding to the title of the Government.
It directed the Union of India to renew the licence without
insisting upon conceding the title of the Union of India. In
the appeal, this Court had held that for obtaining
licence/renewal, title to the property or a lease from the
owner is a pre-condition. In that case, the Deputy
Collector had held that the respondent had title to the
property and appeal thereon was pending. Accordingly,
this Court had directed the Union of India to grant
renewal of the licence pending decision on title.
In these cases, admittedly, no decision on title has yet
been given by any authority. The respondents are
directed to file their claims before the competent authority
(Collector/ District Magistrate, as the case may be) within
one month from today either as an owner or a lessee from
the owner. The competent authority is directed to issue
notice to the Central Government and after considering
the material and affording an opportunity of hearing and
after taking into consideration the law on vesting, dispose
of all those applications on title. Subject to the result
therein, the licenses under the Salt Act would be issued/
renewed. Pending decision, the Union of India are
directed to grant renewal. The authority is directed to
dispose of those matters within a period of six months
from the date of the receipt of the copy of the order.
The appeals are accordingly disposed of. No costs."
(k) On 12th May 1999, the appellant's Special Leave
Petition no. 14528 of 1998 impugning the High
Court order dated 23rd June 1993 in Writ Petition
no. 2861 of 1983 was also dismissed in terms of its
order dated 25th March 1996 quoted above.
(l) In view of the aforesaid orders passed by the
Hon'ble Supreme Court, the appellant and
respondent no.2 filed Revenue Tenancy Settlement
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(RTS) Applications before the Collector-respondent
no.4. Both these applications were dismissed by
respondent no.4 by an order dated 18th November
2002 and it was held that the suit lands were owned
by respondent no.3-State of Maharashtra. Being
aggrieved, both sides preferred appeals 1 before
respondent no.5-the Additional Commissioner,
Konkan Division, Mumbai. Respondent no.1 being a
Grantee, was also permitted to intervene in the
appeals filed by the appellant and respondent no.2.
In the meantime, respondent nos.1 and 2 amicably
settled their disputes as per the Consent Terms
dated 15th September 2009 filed in Suit no.12 of
2003.
(m) By a common order dated 8th October 2010, the
appeals filed by the appellant were dismissed and
the appeals preferred by respondent nos.1 and 2
were allowed. The order dated 18 th November 2002
passed by respondent no.4 was set aside and it was
held that the appellant had no right, title, or
interest in the suit lands. It was further held that
respondent nos.1 and 2 had their respective title as
owner and tenant of the suit lands, as elaborately
set out in Annexure "A" to the said order.
Accordingly, respondent no.5 directed mutation of
the names of respondent nos.1 and 2 in the Record
of Rights and ordered deletion of the appellant's
name therefrom. The operative part of the said
1
The appellant filed RTS Appeal no.97 of 2003, respondent no.1 filed RTS
Appeal no.133 of 2003 and respondent no.2 filed RTS Appeal no.38 of
2003.
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order reads as under:-
"ORDERS
1. Appeal No.38 of 2003 by Mira is allowed and impugned
judgment and Order dated 18.11.2002 in Application
No.4 of 1999 is set aside. The Appeal of Union
Government numbered Appeal No.97 of 2003 is hereby
dismissed.
2. Appeal No.133 of 2008 is allowed and impugned
judgments/orders dated 7/8/1992 in Suo Moto Revision
passed by SDO setting aside ME No 4996 and Order
dated 3.9.1998 in Revision Application No.62 of 1994
both passed by SDO and the Order dated 17.7.2007
passed by Deputy Collector in Appeal No.9 of 1993 & 86
of 1998 are all hereby quashed and set aside.
3. Title of disputed land vests with Estate to the extent of
land described in the schedule annexed as Exh A to the
Consent Terms dated 15th September, 2009 in Suit
12/2003 and Mira is its the Tenant in respect of the land
as described in Schedule "A" hereto.
4. As for remaining lands out of about 224 acre of the
disputed lands, the lands bearing (I) S. Nos 607/6,
608/3, 609/5, 610/5 & 611/2 admeasuring in all 14
acres 22 ¼ gunthas, (ii) S. Nos 612, 613, 614, 615 (part)
& 616 adm in all 27 acres & 10 ½ gunthas all of village
Bhayander and land bearing (iii) S No 192 (part) of
village Mira adm 17 ¼ guntha and (iv) S. No 614/1 adm
1 acre and 617 (part) both of village Bhayendar are
concerned, for reasons stated in Para 15 of Mira
submissions not controverted by Estate the title of these
lands, vests with Mira as Owner thereof. The name of
Mira be recorded in the holder column.
5. In view of decision on title as aforesaid fresh Mutation
Entry be recorded giving effect to this order and that the
name of Salt-Department stands deleted.
6. In the circumstances, there shall be no order as to costs.
7. The concerned authorities not to make mutation entries in
terms of this order for a period of four weeks."
(n) Meanwhile, a separate set of proceedings under
section 3 of the Salsette Act were independently
initiated by respondent no.4 to ascertain the extent
of land which, on the appointed date of the said Act
was covered by section 3(1)(b)(i) and for which the
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estate-holder was liable for payment of land revenue
to respondent no.3. In the said proceedings before
respondent no.4, certain third parties were claiming
that non-agricultural user permission had been
granted in their favour by respondent no.4. These
permissions were challenged by respondent no.1
claiming that the said lands cannot be subjected to
non-agricultural use without the consent of
respondent no.1. The appellant was not a party to
these proceedings. On 5th September 2008,
respondent no.4 passed an order under Section 3 of
the Salsette Act inter alia setting aside the
permissions in favour of such third parties and
holding that respondent no.1 is the superior holder/
landholder in respect of the suit lands and the
Tehsildar was directed to accordingly make entries
in the revenue records and the Record of Rights.
The relevant portion of the said order is extracted:
"CONCLUSION:-
As seen from the records, the village Bhayander was split into
four villages namely Bhayander, Navghar, Goddev and Khari
and village Mire was split into three villages namely Mire,
Penkarpada and Mahajanwadi whereas Ghodbunder village
continues to remain a single village. The Company have
produced the list of the corresponding survey numbers-and
hissa numbers of all eksali / tenanted lands as per the new
villages as above which is at Exhibit "A" to the Written
Submission dated 29.07.2008 by the Company. Similarly, in
respect of the land where whole of the survey numbers is
concerned, the rights of the Company whereof were released or
agreed to be released, the Company have furnished the list
thereof in Exhibit B, reproducing the relevant survey numbers
and hissa numbers as per new villages names. Likewise in
respect of survey nos. And Hissa Nos. As per new village
names, out of which part of the area Exhibit "B" & "C" there
from would be appropriate. In the result I pass the following
Order:
ORDER
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I) The claim of the M/s. The Estate Investment Co. Pvt. Ltd. is
accepted.
II) The Tahsildar Thane is directed to record the name of
company M/s. The Estate Investment Company Pvt. Ltd. as
Land holder / superior holder in kabjedar column of V.F.
No.VII/XII above the line and the Names which are
appearing today should be retained below the line in respect
of the Eksali Tenure/Tenanted lands as shown in Exh. “A”
as tenants excluding the lands shown in the Exh. ‘B’ & ‘C’
(as was done earlier by Mutation Entry No.859 of
Bhayander, 304 of Ghodbunder, and 310 of Mire Village).
III) The Tahsildar Thane is further directed that in other rights
column note should be taken for entitlement of land holder /
superior holder M/s. The Estate Investment Co. Pvt. Ltd. to
receive rent as per law.
IV) No order as to costs.
V) The concerned parties be informed of this decision
accordingly."
(o) The aggrieved third parties were objecting to the
alterations in the revenue record on the ground that
they have a right in some of the suit lands and
challenged the Collector’s order dated 5 th September
2008 in Writ Petition no.7500 of 2008 before this
Court, which was dismissed by the learned Single
Judge on 14th/15th July 2011 granting the third
parties liberty to approach the Civil Court to
challenge the alteration and for adjudication of their
rights. Further appeals by the third parties before
the Division Bench of this Court and Special Leave
to Appeal before the Hon’ble Supreme Court of India
were also dismissed2. Thus, the order dated 5th
September 2008 passed by respondent no.4
declaring respondent no.1 as the superior holder
under Section 3 of the Salsette Act attained finality.
2
The appellant’s Letters Patent Appeal no.264 of 2011 was dismissed by a
Division Bench of this Court on 11 th October 2011 and the appellant’s Special
Leave to Appeal no.30804 of 2011 was dismissed on 8th December 2011.
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Respondent Nos. 1 and 2 have referred to them
solely as part of the factual narrative to demonstrate
that the issue of title to the suit lands has
consistently been contested by the State and/or
third parties, and never by the appellant.
6. It is in the backdrop of the aforesaid documents,
legislative framework and judicial orders, that the appellant
had instituted the present suit claiming title to the suit
lands, which has been dismissed by the impugned
judgment.
Main issues in this Appeal
7. The main issues which arise in this Appeal from the
impugned judgment are as under:
(i) Whether the appellant continued to be the owner
of the suit lands after the execution of the
Indenture of 1870 and upon the enactment of the
1935 GOI Act?
(ii) Whether the trial Court has correctly held that the
appellant has failed to establish its title and
ownership to the suit lands?; and
(iii) Whether the impugned judgment ought to be set
aside as prayer (b) in the suit is not dealt with by
the trial Court?
Submissions of the appellant:
8. Mr. Anil Singh, the learned ASG submitted that the
trial Court erred in holding that the appellant is not the
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owner of the suit lands. It was contended that the
Indenture of 1870 did not convey the ownership or the title
to Ramchunder Luxumonjee and the same continues with
the appellant. The learned ASG submitted that the trial
Court did not correctly analyze the clauses of the
document. The Indenture is a limited grant as evident from
the use of the expression “demise” in the document. The
Indenture did not transfer the title and ownership and the
then government retained substantial rights, including the
rights of re-entry and repossession. The learned ASG relied
upon page 549 of the Gazetteer of Bombay Presidency
Volume XIII Part II, Thane publication no.B-472 of the year
1882 where it is recorded that Indenture was a lease for
999 years and the estates were granted to the Grantee,
because the villagers refused to keep the large Bhayander
embankment in repair.
9. The learned ASG contended that once it is established
that even after the Indenture of 1870 the predecessor in
title of the appellant was the owner of the suit lands, the
only question was how and in what manner the then
Government of India stood divested of its title to the suit
lands. That burden lies solely on respondent nos. 1 and 2,
which it has failed to discharge. The learned ASG submitted
that sections 2 and 3 of the Government Grants Act, 1895
specifically provides that the Transfer of Property Act, 1882
shall not apply to any grant made before the said Act and
that grant would have to be considered on its own tenor.
Reliance was placed upon the judgment in “Union Of India
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& Anr vs Dinshaw Shapoorji Anklesari” 3 to submit that by
virtue of sections 2 and 3 of the Government Grants Act
1895, the Transfer of Property Act, 1882 shall not be
applicable to the government grants.
10. Without prejudice to the above, it was submitted that
the right conferred under the Indenture could only be that
of a “Khot”. Reliance was placed upon the decision in
Tajubai kom Daudkhan Jangalkhan v. The Sub-Collector of
Kulaba”4 wherein it was held that Khots were not
proprietors of land, but only possessed hereditary rights to
farm it. The learned ASG relied upon Rule 30-C of the 1921
BLRC to contend that all grants or disposal of government
lands only involve transfer of rights to use or occupation of
such lands and does not involve a transfer of proprietary
rights of the Government in the soil. The mere use of the
nomenclature “superior holder” could not override or vary
the express terms of the Indenture, which must be
construed on its own language.
11. Insofar as respondent no.2 is concerned, the learned
ASG submitted that it could not claim rights higher than
those of respondent no.1 and at best, could only assert
tenancy rights under respondent no.1. Respondent no.2
can claim ownership only in respect of certain portion of
land identified in paragraph 4 of the operative part of the
order dated 8th October 2010 of respondent no.5, i.e., land
admeasuring 42 acres. It cannot lay claim to the entire
220/227 acres of the suit property.
3
2014 (14) SCC 204
4
Special Appeal no.669 of 1863 – Order dated 1st August 1866
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12. To establish the appellant’s title, the learned ASG
submitted that Salt is recorded in Entry 47 of List I in the
Seventh Schedule of the 1935 GOI Act. As the suit lands
were being used for salt manufacture they would fall within
Entry 47 of List I and by virtue of Section 172(1) of the
1935 GOI Act the title and ownership vested with the then
Federal Government. Thereafter, by operation of Article 294
of the Constitution of India, the suit lands continued to vest
in the appellant. It was accordingly submitted that the
finding recorded in paragraph 24 of the impugned judgment
that the 1935 GOI Act (Exhibit-192) did not cover the suit
lands, or that the appellant had failed to produce a
notification demonstrating that the lands were property of
the Federal Government, is misconceived. It was submitted
that the State Government (respondent no.3) has neither
pleaded nor asserted any independent claim of title over the
suit lands. No written statement was filed by it in the suit,
nor was the order dated 8th October 2010 passed by
respondent no.5 challenged. In these circumstances,
respondent no.3 is not the owner and therefore the title and
ownership in suit lands can only be of the appellant and it
continued to remain vested in the appellant.
13. The learned ASG then contended that the trial Court
erred in failing to adjudicate prayer clause (b) in the suit.
The suit specifically challenged respondent no.4’s order
dated 18th November 2002 and respondent no.5’s order
dated 8th October 2010. This challenge that the order of
respondent no.5 holding that suit lands have vested in
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favour of respondent no.1 was independent of prayer clause
(a) seeking declaration of the appellant’s title and was
required to be independently adjudicated on merits. Prayer
(b) of the suit is itself in the nature of a suit for setting
aside order passed under Section 20(4) of MLRC. The trial
Court erroneously held that the suit was not maintainable
and failed to examine the validity of those orders. Even
under Order 14 Rule 2(1) of the CPC, the trial Court was
obliged to record findings on all issues after evidence was
led. If respondent nos.1 and 2 fail to sustain the validity of
respondent no.5 order dated 8th October 2010, then the suit
property would necessarily vest in the appellant or the
State Government, but not in any private party.
14. The learned ASG submitted that the impugned
judgment erroneously relied upon the alleged admission of
its witness PW 1 – Harikrishna Agarwal and held that the
lands are private lands. He submitted that title cannot be
diluted or extinguished on the basis of statements or
admissions by a witness. The alleged admissions cannot
divest the appellant of its ownership or vest title in
respondent nos.1 or 2. The investiture of title in respondent
nos.1 and 2 must be through a valid legal instrument or
statutory act, which are non-existent in the present case.
15. Lastly, it was submitted that the various orders
passed in litigations prior to 1983 or under BTAL Act and
Salsette Act are irrelevant and not binding, since the
appellant was not a party to any of the above proceedings.
The learned ASG relied upon the judgments in Union of
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India v. Alark Laxman Desai5 “Jagdish Hari Thatte v.
Municipal Corporation of Greater Bombay”6, “Sathyanath &
Anr. v. Sarojamani”7, “Vaman Janardan Joshi v. the Collector
of Thana and the Conservator of Forests” 8,”Vikas Kamalakar
Walavalkar v. the Deputy Salt Commissioner” 9 “Tata Steel
Limited v. State of Jharkhand & Ors.“10 and “Ambika Prasad
Thakur & Ors. v. Ram Ekbal Rai (Dead), by his Legal
Representatives & Ors”11 in support of his contentions and
prayed that the appeal ought to be allowed by this Court.
Submissions of respondent no.1:
16. Mr. Girish Godbole, the learned senior counsel
appearing for respondent no.1 denied the appellant’s claim
for title and submitted that the Indenture of 1870 is a grant
of various categories of land to Ramchunder Luxumonjee as
Grantee for a term of 999 years. The Bombay Survey and
Settlement Act, 1865 (“1865 Act”) was enacted after the
Indian territories came under the direct control of the
British Crown. Under Section 2(k) of the said Act, a
“superior-holder” is defined as a person having the highest
right under a specific grant to hold land or to engage with
the Government for land revenue due on account of any
village or estate. The Act also defines the expressions
“alienated village”, “estate”, “occupant” and “tenant”.
Section 36 confers a right of occupancy conditional upon
payment of assessment, which right is declared to be
5
2016 SCC Online Bom 9948
6
2006 SCC OnLine Bom 1236
7
(2022) 7 SCC 644
8
Regular Appeal no.9 of 1868
9
Suit no. 1172 of 2025
10
(2015) 15 SCC 55
11
1965 SCC OnLine SC 52
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transferable and heritable property, and is to continue
without question so long as the assessment is duly paid. It
was contended that the statute recognized that an occupant
shall not be deprived of his right so long as the assessment
is paid, and such right is treated as proprietary in nature.
The learned senior counsel submitted that the Bombay
Land Revenue Code, 1879 (“1879 BLRC” or “1879 Code”)
was thereafter enacted to consolidate and amend the law
relating to revenue administration. The 1879 Code inter alia
defines “alienated”, “estate” and “superior-holder”,
“occupant”. The same statutory scheme is continued under
the Maharashtra Land Revenue Code, 1966 (“1966 MLRC”),
which repealed the 1879 Code. Reliance was placed on
Sections 20, 29 and 37 of the 1966 MLRC and it was
submitted that the Grantee was a Class I Occupant and as
an Occupant, it is entitled to use and occupation of his
land in perpetuity upon payment of land revenue and on
fulfillment of terms and conditions annexed to his tenure.
Mr. Godbole submitted that on the basis of this legislative
continuity from 1865 to 1966, a person when colloquially
called an “Owner” is really an “Occupant” in all enactments
and what is described as “ownership” in revenue
jurisprudence corresponds to the status of an “occupant” or
“superior-holder”. The concepts of “alienated village”,
“estate”, “alienated land” and “superior-holder” have
remained consistent across the 1865 Act, the 1879 Code
and the 1966 MLRC. Applying the above framework, the
learned senior counsel submitted that the Indenture of
1870 is not a lease, but a grant by which the lands were
alienated in favour of the Grantee, and the rights of Her
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Majesty’s Government (thereafter the Provincial
Government of Bombay) to recover land revenue were
alienated. The alienation was subject only to reservation of
mines, metals and minerals. Referring to the clauses of the
Indenture, he emphasized that the document, when read as
a whole, constitutes a grant of an estate comprising three
villages, including the right to recover land revenue and
other payments from occupants and even existing
government lessees. No lessor-lessee relationship was
created between the Secretary of State for India in Council
and the Grantee by the Indenture of 1870.
17. Mr. Godbole then referred to sections 99, 100, 107,
172 and 173 of the 1935 GOI Act and the Legislative Lists
in its Seventh Schedule. He submitted that Entry 47 of List
I does not confer title to the appellant and the subject of
“land” and “land revenue” is covered separately in Entry 21
and 39 of the List-II (Provincial Legislative List). The learned
senior counsel submitted that legislative competence under
the Entries must be examined in light of the purpose for
which the land is held. Reliance was placed on “Megh Raj &
Anr. v. Allah Rakhia & Ors.“12 to submit that the word
“land” is sufficient to include every form of land, whether
agricultural or not and that the term ought to receive the
widest construction. Invoking the doctrine of pith and
substance and upon a conjoint reading of Sections 172 and
173 of the 1935 GOI Act, the entries in the Seventh
Schedule of the 1935 Act and Article 294 of the
Constitution of India, the learned senior counsel submitted
that as the suit lands were not used for salt manufacture at
12
1947 SCC OnLine FC 4
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the commencement of the Indenture, they would not vest in
the Federal Government merely because, at a subsequent
stage, salt was manufactured thereon under a licence
issued by the Salt Department. Such a subsequent license
issued decades later by the appellant cannot divest
occupancy rights that have been vested under the
Indenture.
18. Mr. Godbole also relied upon the Salsette Act and
submitted that the grants in respect of villages mentioned
in the Schedule to the Act, whether called as leases, grants
or kowls were all instruments of alienation of land revenue
to the Grantee. Section 3 of the Salsette Act abolished the
right of the estate-holder to collect land revenue from the
village and rendered the estate-holders like respondent no.1
liable to pay land revenue to the State Government.
Nevertheless, the estate-holder was recognized as a
superior-holder. Rule 76 of the 1921 BLRC ceased to have
relevance after the enactment of the Salsette Act. The 1921
BLRC applies to unalienated land, whereas the suit lands
formed part of alienated villages. Even otherwise, the 1921
BLRC contemplated that upon cessation of salt
manufacture, land revenue becomes payable to the
Revenue Department and nothing is payable to the Salt
Department. Thus, Rule 76 merely conferred regulatory
control over salt works for limited purposes and did not
affect title. In any case, respondent no.1 did not itself apply
for manufacture of salt; and merely because inferior holders
applied for salt licences, the title of respondent no.1 could
not be extinguished.
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19. As regards prayer clause (b), Mr. Godbole submitted
that under the scheme of Section 20 of the 1966 MLRC, the
determination by respondent no.5 pertains to a claim vis-à-
vis the State Government. Since the State Government
(respondent no.3) has accepted the said determination and
has not initiated any further proceedings, and as the
enquiry under Section 3 of the Salsette Act has also
culminated in favour of respondent no.1, the challenge
under prayer clause (b) becomes academic once prayer
clause (a) is rejected.
20. Mr. Aspi Chinoy, the learned senior counsel for
respondent no.2 submitted that the Indenture constituted
an absolute and complete grant of the suit lands to
respondent no.1 as an owner. It was contended that the
appellant’s assertion of title on the premise that the lands
were used by respondent no.2 for manufacture of salt and
thereby served a federal purpose is wholly untenable.
Entry 47 of List I of the 1935 GOI Act relating to “Salt”
cannot be construed to mean that any land used for salt
manufacture automatically vests in the Federal/Union
Government. In the alternative, it was contended that by
virtue of Section 172 of the 1935 GOI Act, the lands stood
vested in the Province of Bombay, i.e., the State
Government. He invited our attention to the Notification
dated 16th July 1938 under the 1935 GOI Act, which
identified lands utilized by the Bombay Salt Department. It
was contended that the suit lands used by respondent no.2
were not included therein. This shows that the Federal
Government did not have any title over the suit lands.
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Placing reliance on the decision of the Hon’ble Supreme
Court in Mundra Salt and Chemical Industries13, he
submitted that disputes of ownership between the Union
and the State must be adjudicated under Article 294 of the
Constitution and not under the repealed Section 37 of the
1879 BLRC. He submitted that on similar facts, when a
license was issued under the Central Excise Act, the
Supreme Court had negated the claim of the Union of
India/the appellant and held that title to the salt pan lands
did not vest in the Union Government. After the coming into
force of the 1935 GOI Act, land became a State subject and
the State exercised continuous dominion over the same in
all matters. Consequently, no proprietary right accrued in
favour of the appellant. Hence, the appeal ought to be
dismissed as the appellant has failed to establish its title.
21. Reliance was also placed on Section 2(9) of the BTAL
Act and the Notification dated 19 th December 1949
recognizing respondent no.1 as the “landholder” of the suit
lands. According to Mr. Chinoy, this position continued
under the Salsette Act, under which the suit lands that
were earlier exempt from payment of land revenue, now
became liable to payment of land revenue to the State
Government. Emphasis was laid on the long legislative and
litigation history referred to earlier to demonstrate that
until the year 1983, the appellant or its predecessor in title
never asserted ownership over the lands covered by the
Indenture of 1870. The claim of ownership surfaced for the
first time only in 1983 and that too only in respect of 227
acres of Eksali land acquired and used by respondent no.2
13
(2001) 1 SCC 222
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out of the larger 3688 acres.
22. Mr. Chinoy submitted that respondent no.3 also does
not have any title to the suit lands. It was contended that
proceedings under the Salsette Act has affirmed the status
of respondent no.1 as owner. Respondent no.5 in the order
dated 8th October 2010 has referred to various orders and
statutes and thereafter held neither the appellant nor
respondent no.3 have title to the suit lands. Though
respondent no.3-State had challenged the ownership of
respondent no.1, it has failed in all proceedings, including
before the Supreme Court. The order passed by respondent
no.5 has thus attained finality qua respondent no.3-State.
The appellant does not have any rights or title in the suit
lands and its appeal ought to be dismissed.
23. Mr. Saurabh Kirpal, the learned senior counsel
appearing for respondent no.1 adopted the aforesaid
submissions and emphasized that the burden lies only
upon the appellant to establish its title. Such burden
cannot be shifted onto the respondents unless discharged
by the appellant. He also relied upon Section 172 of the
1935 GOI Act to contend that legislative entries merely
demarcate fields of legislation and do not determine
ownership or governmental purpose. According to the
learned senior counsel, manufacture of salt is not per se a
governmental purpose that confers title over land. The mere
use of a portion of the land by respondent no.2 for salt
manufacture does not result in divestment or alteration of
title. Reliance was placed on the judgments of the Supreme
Court in “Union of India & Ors. v. Vasavi Co-operative
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Housing Society Ltd. & Ors.”14, and “Hoechst
Pharmaceuticals Ltd. & Ors. v. State of Bihar & Ors.” 15 in
support of the above arguments. It was further submitted
that despite having knowledge of litigation between the
respondents inter se, the appellant failed to intervene
therein. Moreover, the appellant’s witness (PW-1) has
admitted that there was no instance of the appellant
exercising or asserting control over the suit lands under the
1935 GOI Act. Such admission, being unequivocal, is
binding upon the appellant.
24. Insofar as prayer clause (b) is concerned, Mr. Kirpal
submitted that even assuming that the reasoning of the
trial Court is erroneous, it is well settled that an appellate
court is entitled to sustain the findings recorded by the trial
Court on grounds different from those assigned by it,
provided that the record contains sufficient material to do
so. Placing reliance on Order XLI Rule 24 of the Code of
Civil Procedure, 1908, it was contended that if this Court
concludes that the appellant has failed to establish
ownership, it can uphold the order dated 8 th October 2010
passed by respondent no.5 on that basis. There would thus
be no occasion for a remand or re-trial of the case.
Reliance was placed on “Shivakumar & Ors. v.
Sharanabasappa & Ors.“16 to contend that remand is
warranted only where the reversal of decree and retrial is
indispensable. The impugned judgment correctly holds that
the appellant has no title to the suit lands and the appeal
14
(2014) 2 SCC 269
15
(1983) 4 SCC 45
16
(2021) 11 SCC 277
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deserves to be dismissed.
Objection on jurisdiction of the trial Court and
maintainability of the suit is given up by respondent
nos.1 and 2 before this Court.
25. This appeal was heard on several dates. One of the
findings recorded by the trial Court was that the suit was
not maintainable and the trial Court had no jurisdiction to
entertain the suit instituted by the appellant. At the
commencement of the final hearing, submissions were
advanced by Mr. Anil Singh, the learned Additional Solicitor
General of India to assail this finding and have the
judgment set aside or remanded on this preliminary/limited
ground. However, during the course of hearing, on
instructions from respondent no.1 and respondent no.2,
Mr. Aspi Chinoy, Mr. Girish Godbole and Mr. Saurabh
Kirpal, the learned senior counsel for respondent nos.1 and
2 stated that they were neither insisting nor relying upon
the findings recorded by the trial Court regarding
jurisdiction and maintainability of the suit. Their statement
has been recorded in the order of this Court dated 27 th
November 2025. It was after this concession that the
learned ASG proceeded to address this Court on the merits
of the appeal.
Reasons and Findings:
26. The central issue in this appeal is whether the
appellant has succeeded in establishing its title over the
suit lands. The trial Court, upon a detailed appreciation of
oral and documentary evidence, has answered this issue
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against the appellant. After considering the voluminous
record, the statutory/legal framework and the submissions
advanced by the parties, we find no reason to interfere with
the findings recorded by the trial Court.
Burden of proof is on the appellant to prove its title
27. It is well settled that in a suit for declaration of title,
the plaintiff must succeed on the strength of its own
evidence and not on the weakness of the defendant’s case.
Section 101 of the Evidence Act, 1872 places the burden
upon the party who asserts a fact and Section 102 provides
that where both parties fail to adduce evidence, the suit
must fail. Though the onus of proof may shift during trial,
such shifting arises only when the plaintiff establishes a
prima facie case of a high degree of probability. This law is
well settled in the judgment of the Hon’ble Supreme Court
cited by Mr. Kirpal in “Union of India & Ors. v. Vasavi Co-
operative Housing Society Ltd. & Ors.”17, the relevant
portions of which are quoted:
“15. It is trite law that, in a suit for declaration of title, the burden
always lies on the plaintiff to make out and establish a clear
case for granting such a declaration and the weakness, if
any, of the case set up by the defendants would not be a
ground to grant relief to the plaintiff.
16. The High Court, we notice, has taken the view that once the
evidence is let in by both the parties, the question of burden
of proof pales into insignificance and the evidence let in by
both the parties is required to be appreciated by the court in
order to record its findings in respect of each of the issues
that may ultimately determine the fate of the suit. The High
Court has also proceeded on the basis that initial burden
would always be upon the plaintiff to establish its case but
if the evidence let in by the defendants in support of their
case probabilises the case set up by the plaintiff, such
evidence cannot be ignored and kept out of consideration.
17
(2014) 2 SCC 269
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17. At the outset, let us examine the legal position with regard to
whom the burden of proof lies in a suit for declaration of title
and possession. This Court in Moran Mar Basselios
Catholicos v. Thukalan Paulo Avira [AIR 1959 SC 31]
observed that:
“20. … in a suit [for declaration] if the plaintiffs are to
succeed they must do so on the strength of their own
title.”
18. In Nagar Palika, Jind v. Jagat Singh [(1995) 3 SCC 426]
this Court held as under:
“The onus to prove title to the property in question was
on the plaintiff-respondent. … In a suit for ejectment
based on title it was incumbent on the part of the court
of appeal first to record a finding on the claim of title to
the suit land made on behalf of the plaintiff. The court
is bound to enquire or investigate that question first
before going into any other question that may arise in
a suit.”
19. The legal position, therefore, is clear that the plaintiff in a
suit for declaration of title and possession could succeed
only on the strength of its own title and that could be done
only by adducing sufficient evidence to discharge the onus
on it, irrespective of the question whether the defendants
have proved their case or not. We are of the view that even if
the title set up by the defendants is found against
(sic them), in the absence of establishment of the plaintiff’s
own title, the plaintiff must be non-suited.
20. We notice that the trial court as well as the High Court
rather than examining that question in depth, as to whether
the plaintiffs have succeeded in establishing their title on
the scheduled suit land, went on to examine in depth the
weakness of the defendants’ title. The defendants relied on
the entries in the GLR and their possession or repossession
over the suit land to non-suit the plaintiffs. The court went
on to examine the correctness and evidentiary value of the
entries in the GLR in the context of the history and scope of
the Cantonment Act, 1924, the Cantonment Land
Administration Rules, 1925 and tried to establish that no
reliance could be placed on the GLR. The question is not
whether the GLR could be accepted or not, the question is,
whether the plaintiff could prove its title over the suit
property in question. The entries in the GLR by themselves
may not constitute title, but the question is whether the
entries made in Ext. A-3 would confer title or not on the
plaintiff.”
28. In the present case, the appellant proceeds on the
premise that the ownership of the Secretary of State for
India in Council existed and continued with the Federal
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Government and its successor government, unless divested.
The burden is on the appellant to establish this fact. In our
view, when the appellant filed the suit for declaration of its
title as owners, the onus cannot be shifted onto respondent
nos.1 and 2 to establish how the appellant was divested of
title. The trial Court was required only to render a finding
on the appellant’s title. If the appellant fails to prove its
own title, then the suit is liable to be dismissed without
further examination.
Nature of the Indenture of 1870:
29. The entire case of the appellant proceeds on the
premise that the Indenture while retaining the ownership of
the appellant, is a limited grant and confers a lease for 999
years to the Grantee. The learned ASG has urged that
clause XI, requires prior permission of the Collector in
certain cases of assignment/transfer and thereby converts
the Grant into a lease. We are unable to agree with this
contention. For the sake of convenience, clause XI of the
Indenture is quoted:
“XI. That the Grantee his Heirs, Executors,
Administrators and Assigns shall not assign or
transfer the premises intended to be hereby
granted and for the time being subject to this grant
or any part which with the consent hereinafter
mentioned shall have been served from the residue
save and except as an entirety unless he or they
shall have first obtained the consent in writing in
this behalf of the Collector or other Revenue Officer
of having Chief Authority in the district Provided
always and it is hereby expressly declared agreed
by and between the parties hereto that if the said
several payments hereinbefore reserved and
covenanted to be paid to her Majesty, her Heirs
and Successors or any part thereof respectively
shall be behind and unpaid for the space of one
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thereof ought to have been made (although no
formal or legal demand thereof shall have been
made) or if the Grantee his Heirs, Executors,
Administrators or shall not well and truly observe
and perform all and every the covenants clauses,
conditions and provisoes in these presents
contained and on his or their part or behalf to be
observed and performed then and in either or any
of such cases it shall be lawful for Her Majesty,
her Heirs and Successors into the said lands and
premises intended to be hereby granted and for
the time being subject to this grant to re-enter and
the same and every part thereof thenceforth to
have again re-possess and enjoy in her or their
former estate as if these presents had never been
made…….”
30. In our view, the Indenture is not a mere demise of
possession, but is a grant of a comprehensive estate. The
Indenture alienates a wide bundle of rights of the Secretary
of State for India in Council to the Grantee, including the
right to hold and enjoy the lands, the right to assign and
mortgage the estate, the right to recover land revenue from
occupants, with full authority to enforce payment and
resume possession in case of default. The Indenture, when
read as a whole, effects an alienation of the proprietary
rights including fiscal and administrative incidents of
ownership which ordinarily vest in the government. The
Indenture transfers to the Grantee a heritable, transferable
and assignable estate. We find that clause XI of the
Indenture does not detract from the overall nature of the
rights conveyed or the character of the Indenture. If the
intention was to create a lease without affecting title of the
appellant, the document would have expressly reflected
such an arrangement. We may note that as the concept of
lease was recognized even prior to the 1870 Indenture, or
the Transfer of Property Act, 1882 as evidenced by
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contemporaneous statutory provisions including sections
II(e), XIV, XXXVII and XXXVIII of the Bombay Survey and
Settlement Act, 1865.
The appellant’s case of retaining “title” is inconsistent
with the contemporaneous legislative framework.
31. Mr. Godbole has extensively argued that the
legislative framework as discussed below recognized
“superior holders” as the owners of the land. We accept this
submission as the rights conferred under the Indenture of
1870 falls within the contemporaneous legislative
framework. For the sake of convenience, the relevant
statutory provisions are quoted:
Bombay Survey and Settlement Act, 1865
“An Act to provide for the survey, demarcation, assessment,
and administration of lands held under Government, in the
Districts belonging to the Bombay Presidency, and for the
registration of the rights and interests of the occupants of the
same.
II(e) An “alienated village” is a village, held and managed by
private individuals, exempt from payment of land
revenue, or under Acts II or VII of 1863 of the Council of
the Governor of Bombay, or under a grant of lease fixing
the Government demand in perpetuity.
II(f) “Estate” means any land, or interest in land, wherever
situated, vested in any person or body of persons, and
separately recognised in the public accounts.
II(j) “Occupant” is the person whose name is entered
authorisedly in the Survey papers, or other public
accounts, as responsible to Government for payment of
the assessment due upon any field, or recognised share
of a field.
II(k) “Superior Holder” is the person having the highest right
under Government recognised by the custom of the
country, or resting on specific grant, to hold land or
engage with Government for the land revenue due on
account of any village or estate.
II(l) “Tenant” is the person holding under an occupant or
superior holder, by a right derived from him, and
otherwise than by ownership or inheritance.
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XXXVI. Right of occupancy conditional on payment of
assessment declared to be transferable and heritable
property, and to be continuable without question, at the
expiration of a settlement lease, on the occupant’s
consenting to the revised rate.
The occupant of a survey field, or recognised share of a
field or number, shall not be deprived of his right of
occupancy in the said field or recognised share of a field
by any Revenue Officer so long as he continues to pay
the assessment due thereon. This right of conditional
occupancy is declared to be a transferable and heritable
property; and any person, lawfully and authorisedly in
occupation of any land at the expiration of a settlement
lease, who shall consent to the rate which may be
assessed on his land at a revision of assessment, shall
be continued in his occupancy without question.
Bombay Land Revenue Code, 1879
“Preamble”
“WHEREAS it is expedient to consolidate and amend the
law relating to Revenue-officers, and to the assessment and
recovery of land-revenue, and to other matters connected
with the land-revenue-administration; it is hereby enacted
as follows:
…
3. (1) to (4) ………….
(5) “estate” means any interest in lands and the
aggregate of such interests vested in a person or
aggregate of persons capable of holding the same;
(10) “to hold land” means to be legally invested with a right
to the possession and enjoyment or disposal of such
land, either immediate or at the termination of
tenancies legally subsisting;
(11) “holder” or “landholder” signifies the person in whom a
right to hold land is vested, whether solely on his own
account or wholly or partly in trust for another person,
or for a class of persons, or for the public, it includes a
mortgagee vested with a right to possession;
(12) “holding” signifies land over which such right extends;
(13) “superior holder” signifies a holder entitled to receive
from other holders rent or land-revenue on account of
lands held by them, whether he be accountable or not
for the same, or any part thereof, to the Government;
(14) “inferior holder” signifies a holder liable to pay the rent
or land-revenue to a superior holder, whether on
account of such superior holder or Government;
(15) “tenant” signifies a person who holds by a right
derived from a superior holder called his “landlord” or
from his landlord’s predecessor in title;
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(16) “occupant” signifies a holder of unalienated land, or
where there are more holders than one, the holder
having the highest right in respect of any such land.
(19) “alienated” means transferred insofar as the rights of
Government to payment of the rent or land-revenue are
concerned, wholly or partially, to the ownership of any
person.”
Maharashtra Land Revenue Code, 1966
Section 2 : Definitions.– In this code, unless the context
otherwise requires,–
(2) “alienated” means transferred in so far as the rights of
the State Government to payment of rent or land revenue
are concerned, wholly or partially, to the ownership of
any person ;
(8) “estate” means any interest in lands and the aggregate of
such interests vested in a person or aggregate of persons
capable of holding the same ;
(12) “to hold land” or “to be a land holder of land” means to be
lawfully in possession of land, whether such possession
is actual or not;
(19) “land revenue” means all sums and payments, in money
received or legally claimable by or on behalf of the State
Government from any person on account of any land or
interest in or right exercisable over land held by or
vested, in him, under whatever designation such sum
may be payable and any cess or rate authorised by the
State Government under the provisions of any law for the
time being in force ; and includes, premium, rent, lease
money, quit rent, judi payable by a inamdar or any other
payment provided under any Act, rule, contract or deed
on account of any land;
(38) “superior holder” except in Chapter XIV means a land-
holder entitled to receive rent or land revenue from other
land-holders (called “inferior holders”) whether he is
accountable or not for such rent or land revenue, or any
part thereof, to the State Government ; Provided that,
where land has been granted free of rent or land revenue,
subject to the right of resumption in certain specified
contingencies by a holder of alienated land whose name
is authorisedly entered as such in the land records, such
holder shall, with reference to the grantee, be deemed to
be the superior holder of land so granted by him, and the
grantee shall, with reference to the grantor, be deemed to
be the inferior holder of such land, and for the purposes
of sections 147, 151 and 152 of the Maharashtra Zilla
Parishads and Panchayat Samitis Act, 1961, shall,
notwithstanding anything hereinafter contained in the
definition of the word “tenant”, be deemed to be the
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tenant of such grantor;
Section 20. Title of State in all lands, public roads, etc.,
which are not property of others.–
(1) All public roads, lanes and paths, the bridges, ditches,
dikes and fences, on, or beside, the same, the bed of the
sea and of harbours and creeks below the high
watermark, and of rivers, streams, nallas, lakes and
tanks and all canals and watercourses, and all standing
and flowing water, and all lands wherever situated,
which are not the property of persons legally capable of
holding property, and except in so far as any rights of
such persons may be established, in or over the same,
and except as may be otherwise provided in any law for
the time being in force, are and are hereby declare to be,
with all rights in or over the same, or appertaining
thereto, the property of the State Government and it shall
be lawful for the Collector, subject to the orders of the
Commissioner, to dispose of them in such manner as may
be prescribed by the State Government in this behalf,
subject always to the rights of way, and all other rights of
the public or of individual legally subsisting.
(2) Where any property right in or over any property is
claimed by or on behalf of the Government or by any
person as against the Government, it shall be lawful for
the Collector or a survey officer, after formal inquiry of
which due notice has been given, to pass an order
deciding the claim.
29. Classes of persons holding land.–
(1) There shall be under this Code the following classes
of persons holding land from the State, that is to say
—
(a) Occupants–Class I,
(b) Occupants–Class II,
(c) Government lessees.
(2) Occupants–Class I shall consist of persons who–
(a) hold unalienated land in perpetuity and without
any restrictions on the right to transfer,
(b) immediately before the commencement of this
Code hold land in full or occupancy
Bhumiswami rights without any restrictions on
the right to transfer in accordance with the
provisions of any law relating to land revenue in
force in any part of the State immediately before
such commencement, and 24[(c) on the 21st
April 2018, being the date of commencement of
the Maharashtra Land Revenue Code
(Amendment) and the Maharashtra Land
Revenue (Inclusion of certain Bhumidharis in
Occupants–Class I Permission) Rules (Repeal)
Act, 2018 (Mah. XLIV of 2018), were holding the
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land in Vidarbha in Bhumiswami rights with
restrictions on right to transfer, or in Bhumidhari
rights in any local area in Vidarbha.]
(3) Occupants–Class II shall consist of persons who–
(a) hold unalienated land in perpetuity subject to
restrictions on the right to transfer;
(b) immediately before the commencement of this
Code hold–
(ii) elsewhere hold land in occupancy rights
with restrictions on the right to transfer
under any other law relating to land
revenue; and
(c) before the commencement of this Code have
been granted rights in unalienated land under
leases which entitle them to hold the land in
perpetuity, or for a period not less than fifty
years with option to renew on fixed rent, under
any law relating to land revenue and in force
before the commencement of this Code ; and all
provisions of this Code relating to the rights,
liabilities and responsibilities of Occupants–
Class II shall apply to them as if they were
Occupants–Class II under this Code.
32. A conjoint reading of the relevant provisions under
the 1865 Act, the 1879 BLRC and the 1966 MLRC
demonstrates a consistent legislative framework recognizing
the concepts of “alienated”, “alienated village”, “estate”,
“occupant” and “superior-holder”. The expression
“alienated” denotes a transfer of the government right to
receive land revenue in favour of a private person, while an
“alienated village” refers to a village held and managed by
such person, with exemption from payment of land
revenue to the State. An “occupant” is a person whose
name is entered in the revenue record for payment of
assessment and in actual possession of unalienated land,
other than a tenant. Section 36 of the 1865 Act confers
upon an occupant a right of occupancy and expressly
recognizes such right as heritable and transferable
property, immune from disturbance so long as assessment
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is duly paid. A “superior-holder” under 1865 Act and 1879
BLRC signifies a person having the highest proprietary
interest in land, with a statutorily recognised right to hold
the land and recover revenue from inferior holders. We find
that this conceptual framework of superior-holder is
substantially preserved under Section 2(38) of the 1966
MLRC, which while repealing the 1879 Code, retains its
essential structure. Section 20 of the 1966 MLRC declares
that all lands, including public roads, bridges, rivers and
lakes, and all lands not shown to be the property of others,
vest in the State Government. However, sub-section (2) of
Section 20 provides that any competing claim by or against
the State Government shall be adjudicated by the Collector
upon due notice and inquiry. Section 29 classifies
landholders into Occupants – Class I (holding unalienated
land in perpetuity and without restriction on transfer),
Occupants – Class II (holding unalienated land in
perpetuity subject to restrictions on transfer), and
Government lessees. Section 37 of the 1966 MLRC secures
the occupant’s right to use and occupy the land in
perpetuity, subject to payment of revenue obligations and
on the fulfillment of conditions attached to the tenure. In
the present case, the Grantee clearly answers to the
description of a Class I-Occupant, enjoying heritable and
transferable rights in perpetuity. The legislative continuity
from the 1865 and 1879 enactments through to the 1966
MLRC affirms a settled position in revenue jurisprudence
that what is colloquially described as “ownership”
corresponds to the statutory status of an “occupant” or, in
appropriate cases, a “superior-holder”. The core concepts of
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“alienated village”, “estate”, “alienated land” and “superior-
holder” have remained materially unchanged across these
enactments. The statutory framework thus accords to the
occupant, a proprietary interest in the land. Viewed against
this backdrop, the Indenture of 1870 must be construed as
effecting a divestment of the Her Majesty’s Government
revenue and proprietary interests and a corresponding
conferment of a heritable, transferable and assignable
estate in favour of the Grantee. The Indenture evidences a
grant by which the lands stood alienated from payment of
rent and land revenue as defined in Section II (d) of the
1865 Code, Section 3(20) of the 1879 BLRC and Section
2(20) of the 1966 MLRC. The reservation of limited rights,
such as with respect to mines and minerals or prior
permission of Collector for transfer does not dilute the
essential character of the grant as one of alienation. Thus,
in this legislative background, the legal relationship created
by the Indenture cannot be characterized as that of lessor
and lessee between the Secretary of State for India in
Council and the Grantee as is sought to be argued by the
appellant.
There is no “title” in appellant’s favour after
Government of India Act, 1935 or under Article 294 of
the Constitution of India
33. The appellant’s next argument on title is based on
section 172(1) of the 1935 GOI Act read with Entry 47 of
List I relating to “Salt”. Before dealing with the same, the
relevant provisions of the 1935 GOI Act and the
Constitution of India are extracted:
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“Section 99. Extent of Federal and Provincial laws –
(1) Subject to the provisions of this Act the Federal
Legislature may make laws for the whole or any part of
British India or for any Federated State, and a Provincial
Legislature may make laws for the Province or for any
part thereof.
(2) Without prejudice to the generality of the powers
conferred by the preceding sub-section, no Federal law
shall, on the ground that it would have extra territorial
operation, be deemed to be invalid in so far as it applies –
a) to British subjects and servants of the Crown in
any part of India; or
b) to British subjects who are domiciled in any part of
India wherever they may be; or
c) to, or to persons on, ships or aircraft registered in
British India or any Federated State wherever they
may be; or
d) in the case of a law with respect to a matter
accepted in the Instrument of Accession of a
Federated State as a matter with respect to which
the Federal Legislature may make laws for that
State, to subjects of that State wherever they may
be; or
e) in the case of a law for the regulation or discipline
of any naval, military, or air force raised in British
India, to members of, and persons attached to,
employed with or following, that force, wherever
they may be.”
“Section 100. Subject matter of Federal and Provincial laws.-
(1) Notwithstanding anything in the two next succeeding
sub-sections, the Federal Legislature has and a Provincial
Legislature has not, power to make laws with respect to
any of the matters enumerated in List I in the Seventh
Schedule to this Act (hereinafter called the “Federal
Legislative List”)
(2) Notwithstanding anything in the next succeeding sub-
section, the Federal Legislature, and subject to the
preceding sub-section, a Provincial Legislature also, have
power to make laws with respect to any of the matters
enumerated in List III in the said Schedule (hereinafter
called the “Concurrent Legislative List”).
(3) Subject to the two preceding sub-sections the Provincial
Legislature has, and the Federal Legislature has not,
power to make laws for a Province or any part thereof
with respect to any of the matters enumerated in List II in
the said Schedule (hereinafter called the “Provincial
Legislative List”).
(4) The Federal Legislature has power to make laws with
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respect to matters enumerated in the Provincial
Legislative List except for a Province or any part thereof.”
“Section 104. Residential powers of legislation.-
(1) The Governor General may by public notification
empower either the Federal Legislature or a Provincial
Legislature to enact a law with respect to any matter not
enumerated in any of the Lists in the Seventh Schedule to
this Act, including a law imposing a tax not mentioned in
any such list, and the executive authority of the
Federation or of the Province, as the case may be, shall
extend to the administration of any law so made, unless
the Governor-General otherwise directs.
(2) In the discharge of his functions under this section the
Governor-General shall act in his discretion.”
“Section 172. Vesting of lands and buildings-
(1) All lands and buildings which immediately before the
commencement of Part III of this Act were vested in His
Majesty for the purposes of the government of India shall
as from that date-
(a) in the case of lands and buildings which are situate
in a Province, vest in His Majesty for the purposes of
government of that Province unless they were then
used, otherwise than under a tenancy agreement
between the Governor-General in Council and the
Government of that Province, for purposes which
thereafter will be purposes of the Federal
Government or of His Majesty’s Representative for
the exercise of the functions of the Crown in its
relations with Indian States, or unless they are
lands and buildings formerly used for such
purposes as aforesaid, or intended or formerly
intended to be so used, and certified by the
Governor-General in Council or, as the case may be.
His Majesty’s Representative, to have been retained
for future use for such purposes or to have been
retained temporarily for the purpose of more
advantageous disposal by sale or otherwise;
(b) in the case of lands and buildings which are situate
in a Province but do not by virtue of the preceding
paragraph vest in His Majesty for the purposes of
the government of that Province, and in the case of
lands and buildings which are situate in India
elsewhere than in a Province, vest in His Majesty for
the purposes of the government of the Federation or
for the purposes of the exercise of the functions of
the Crown in its relations with Indian States,
according to the purpose for which they were used
immediately before the commencement of Part III of
this Act; and
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(c) In the case of lands and buildings which are situate
elsewhere than in India (except lands and buildings
situate in Burma or Aden), vest in His Majesty for
the purposes of the government of the Federation or,
if they were immediately before the commencement
of Part III of this Act used for purposes of the
department of the Secretary of State in Council, for
the purposes of His Majesty’s Government in the
United Kingdom.
(2) Except with the consent of the Governor-General, effect
shall not be given to any proposal for the sale of any
lands or buildings which by virtue of this section are
vested in His Majesty for the purposes of His Majesty’s
Government in the United Kingdom, or to any proposal for
the diversion of any such lands and buildings to uses not
connected with the discharge of the functions of the
Crown in relation to India or Burma…….”
Seventh Schedule
Legislative Lists
“List I” – Federal Legislative List
Entry 10 : Works, lands and buildings vested in, or in the possession of,
His Majesty for the purposes of the Federation (not being
naval, military or air force works), but, as regards property
situate in a Province; subject always to Provincial legislation,
save insofar as Federal law otherwise provides, and, as
regards property in a Federated State held by virtue of any
lease or agreement with that State, subject to the terms of
that lease or agreement.
Entry 47 : Salt.
“List II” – Provincial Legislative List
Entry 21 : Land, that is to say, rights in or over land, land tenures,
including the relation of landlord and tenant, and the
collection of rents; transfer, alienation and devolution of
agricultural land; land improvement and agricultural loans;
colonization; Courts of Wards; encumbered and attached
estates; treasure trove.
Entry 39 : Land revenue, including the assessment and collection of
revenue, the maintenance of land records, survey for revenue
purposes and records of rights and alienation of revenue.
Constitution of India
“Article 294. Succession to the property, assets, rights, liabilities and
obligations in certain cases:-
As from the commencement of this Constitution–
(a) all property and assets which immediately before such
commencement were vested in His Majesty for the
purposes of the Government of the Dominion of India
and all property and assets which immediately before
such commencement were vested in His Majesty for the45/70
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purposes of the Government of each Governor’s Province
shall vest respectively in the Union and the
corresponding State, and
(b) all rights, liabilities and obligations of the Government
of the Dominion of India and of the Government of each
Governor’s Province, whether arising out of any contract
or otherwise, shall be the rights, liabilities and
obligations respectively of the Government of India and
the Government of each corresponding State, subject to
any adjustment made or to be made by reason of the
creation before the commencement of this Constitution of
the Dominion of Pakistan or of the Provinces of West
Bengal, East Bengal, West Punjab and East Punjab.”
Seventh Schedule, List-I – Union List
Entry 58. Manufacture, supply and distribution of salt by United
agencies; regulation and control of manufacture, supply and
distribution of salt by other agencies.
Seventh Schedule, List-II – State List
Entry 18. Land, that is to say, rights in or over land, land tenures
including the relation of landlord and tenant, and the
collection of rents; transfer and alienation of agricultural
land; land improvement and agricultural loans; colonization.
Entry 45. Land revenue, including the assessment and collection of
revenue, the maintenance of land records, survey for revenue
purposes and records of rights, and alienation of revenues.
34. Under the Government of India Act 1919, there was
no demarcation of legislative powers between the Federal
Government and the provinces. There was a fundamental
constitutional change with the 1935 GOI Act, which
introduced demarcation of legislative powers through
sections 99 and 100. These provisions read with the
Seventh Schedule allocated the subjects between Federal
Government and the Provincial Government through the
Federal Legislative List-I, Provincial Legislative List-II and
the Concurrent Legislative List-III. The argument of the
learned ASG is that as Salt is in List-I and since suit lands
were used for manufacture of salt, therefore all incidents of
it including ownership and transfer of salt lands will vest
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with the then Federal government. In our view, this
argument is misconceived and proceeds on a fundamental
misconception. Section 172 provides for vesting of property
held for the purposes of the Federation and states that all
lands and buildings that vested in His Majesty for the
Government of India prior to the commencement of Part III
of the Act (The Governor’s Provinces) would thereafter vest
in the Provincial Government if situated within a Province,
except where they were used, intended to be used, or
retained for purposes of the Federal Government or His
Majesty’s Representative, as duly certified. Under Entries
21 and 39 of List-II, land and land revenue matters fell
within the exclusive provincial field. Consequently, all the
proprietary rights in land, administration of land revenue
and regulation of land tenures are matters that vest in the
Provincial Government. The appellant cannot claim title
over the suit lands on the basis of Entry 47 in List I of the
1935 GOI Act. The Indenture was executed when the suit
lands were agricultural lands, classified by revenue
tenures. The subsequent manufacture of salt under license
from the Salt Commissioner few decades later certainly
cannot vest ownership in the licensing authority or divest
the Grantee of its proprietary rights in the lands.
35. It is correctly submitted by the learned senior counsel
for respondent nos. 1 and 2 that Entry 10 in List-I which
refers to works, lands and buildings vested in or in the
possession of His Majesty for the purposes of the
Federation. The suit lands are not covered by any
contemporaneous order or notification. Further, Entry 47 of
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List-I only relates to a field of legislation. It does not ipso
facto determine ownership of land upon which salt is
manufactured. Entry 47 only indicates that the Federal
Government alone had the mandate to legislate matters
relating to salt. The entries in the three Lists of the Seventh
Schedule are not sources of legislative power, but
demarcate the fields within which such power may be
exercised by the respective government. They are legislative
heads of an enabling character, intended to define and
confine the respective spheres of competence of the Federal
Government and the Provincial Government, both of which
are expressed in clear and precise terms. The doctrine of
“pith and substance” is invoked only where reconciliation
between conflicting Entries is not possible, to ascertain the
true nature and character of the legislation and to identify
the Entry to which it properly relates. In our view,
regulatory control of the salt manufacturing activity is
distinct from proprietary rights in the land. If the
appellant’s argument is to be accepted, then it would mean
that every private land used for salt manufacture would
automatically vest in the appellant, a proposition
unsupported by constitutional or statutory scheme.
36. In “Megh Raj”, the Privy Council had an occasion to
consider Sections 100, 107 of the 1935 GOI Act and the
entries in the Seventh Schedule in the context of challenge
to the validity of the Punjab Restitution of Mortgaged Lands
Act, 1938. Considering the interplay between the three
Lists, the Court held that “land” in Entry 21 in List-II is
sufficient in itself to include every rights in land including
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its transfer, devolution and alienation, making it a
provincial or State subject. The Court held as follows:
“…The key to item 21 is to be found in the opening word,
“land.” That word is sufficient in itself to include every form of
land, whether agricultural or not. Land, indeed, is primarily a
matter of provincial concern. The land in each province may
have its special characteristics in view of which it is necessary
to legislate, and there are local customs and traditions in
regard to land-holding and particular problems of provincial or
local concern which require provincial consideration. It would
be strange if the land in a province were to be broken up into
separate portions, some within and some outside the
legislative powers of the province. Such a conflict of
jurisdiction is not to be expected. Item 21 is part of a
constitution and would, on ordinary principles, receive the
widest construction, unless for some reason it is cut down
either by the terms of item 21 itself or by other parts of the
constitution, which has to be read as a whole. As to item 21,
“land,” the governing word, is followed by the rest of the item,
which goes on to say, “that is to” say. These words introduce
the most general concept — “rights in or over land.” “Rights in
land” must include general rights like full ownership or
leasehold or all such rights. “Eights over land” would include
easements or other collateral rights, whatever form they might
take. Then follow words which are not words of limitation but
of explanation or illustration, giving instances which may
furnish a clue for particular matters: thus there are the words
“relation of landlord” and tenant, and collection of rents. These
words are appropriate to lands which are not agricultural
equally with agricultural lands. Rent is that which issues from
the land. Then the next two sentences specifically refer to
agricultural lands, and are to be read with items 7, 8 and 10
of List III. These deal with methods of transfer or alienation or
devolution, which may be subject to federal legislation, but do
not concern the land itself, a sphere in which the provincial
and federal powers are concurrent, subject to the express
exception of the specific head of agricultural land which is
expressly reserved to the provinces. The remainder of item 21
specifies important matters of special consequence in India
relating to land. The particular and limited specification of
agricultural land proves that “land” is not used in item 21 with
restricted reference to agricultural land but relates to land in
general. Item 2 is sufficient to give express powers to the
provinces to create and determine the powers and jurisdiction
of courts in respect of land, as a matter ancillary to the subject
of item 21.”
37. In “Hoechst Pharmaceuticals Ltd.”, the Hon’ble
Supreme Court held that the various entries in the three
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Lists are not ‘powers’ of legislation, but ‘fields’ of legislation,
the relevant portion of which is quoted:
“74. It is equally well settled that the various entries in the three
Lists are not ‘powers’ of legislation, but ‘fields’ of legislation.
The power to legislate is given by Article 246 and other
Articles of the Constitution. Taxation is considered to be a
distinct matter for purposes of legislative competence.
Hence, the power to tax cannot be deduced from a general
legislative entry as an ancillary power. Further, the element
of tax does not directly flow from the power to regulate trade
or commerce in, and the production, supply and distribution
of essential commodities under Entry 33 of List III, although
the liability to pay tax may be a matter incidental to the
Centre’s power of price control.
75. “Legislative relations between the Union and the States inter
se with reference to the three Lists in Schedule VII cannot be
understood fully without examining the general features
disclosed by the entries contained in those Lists”: Seervai in
his Constitutional Law of India, 3rd Edn., Vol. 1 at pp. 81-
82. A scrutiny of Lists I and II of the Seventh Schedule
would show that there is no overlapping anywhere in the
taxing power and the Constitution gives independent
sources of taxation to the Union and the States. Following
the scheme of the Government of India Act, 1935, the
Constitution has made the taxing power of the Union and of
the States mutually exclusive and thus avoided the
difficulties which have arisen in some other Federal
Constitutions from overlapping powers of taxation.”
38. This argument of the respondents is also fortified by
the Notification dated 16th July 1938 issued under Section
172 of the 1935 GOI Act. The said Notification assumes
critical importance as it specifically identified the lands and
buildings then used by the Bombay Salt Department. The
suit lands are not mentioned therein. This absence is fatal
to the appellant’s case. If indeed the Federal government
had retained ownership and title in any capacity including
of a lessor, the suit lands would have been notified by the
then Federal Government. In our view, this strikes at the
very root of the matter. The absence of notification in
appellant’s favour coupled with continuous recognition by
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respondent nos.3 to 5, of respondent no.1 rights as
landholder negates the appellant’s argument of the title and
ownership in the suit lands vesting in the Federal
Government. Article 294 of the Constitution of India only
continues the position of the properties between the Union
Government and the State as on the commencement of the
Constitution. As the suit lands were not vested in the
Federal Government under Section 172 of the 1935 GOI
Act, they did not vest in the Union of India by virtue of
Article 294 of the Constitution of India.
39. In “Mundra Salt”, the Hon’ble Supreme Court held
that merely because the suit lands were used for
manufacture of salt, the Union of India cannot claim title
over the suit lands. In “Mundra Salt”, the land was sold by
the government in 1952 through a public auction wherein
Mundra Salt emerged as highest bidder. The sale was
confirmed. The possession was handed over and the
bidder’s name was duly entered in the revenue records.
Land acquisition proceedings were initiated by the local
municipal corporation and around then, the Union of India
through the Salt Department asserted title over the salt pan
land contending that the respondents were merely lessees
or licensees, and not its owners. Reliance was placed on
Section 37 of the 1879 BLRC which declared that all lands
not proved to be privately owned vested in the Crown and it
was argued that in the absence of proof of title, the land
belongs to Union of India. This contention was rejected and
the Hon’ble Supreme Court traced historical evolution of
land laws and observed that the concept of absolute
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ownership of lands vested in Crown was a feature of the
pre-constitutional era when federalism has not yet emerged.
After coming to force of the Constitution of India, this
position was fundamentally altered and the question of
ownership between the Union and the State must be
determined with reference to Article 294 of the Constitution
alone and not with reference to obsolete Section 37 of 1879
BLRC. The Hon’ble Supreme Court dismissed the claim of
the Union of India and held:
“12. The legal position which emerges from the aforesaid laws
appears to be that unless an individual proves his claim and
title over the land, where the salt work is being carried on,
such land was deemed to be that of the Government. It is in
these set of laws, Section 37 of the 1879 Code also projects
itself in the same manner. Under it, if any individual fails to
establish his title, the Union Government is presumed to be
the owner of the land. However, we have to keep in mind,
when the 1879 Code was promulgated federalism was not
even born. In other words, then there was no question of
any right of two Governments to hold the properties between
them as it is now between the Union and the State
Governments. Then the right over the land was confined to
that of the Crown and an individual. That is why Section 37
of the 1879 Code recognises pre-emptory right of the Crown
in respect of all lands which are not the property of
individuals. This conception of exclusive ownership over all
land by the Crown stood dissolved after coming into force of
the Constitution of India, under which right over such land
was conferred both on the Union and the State
Governments.
13. In order to adjudicate the controversy in this case it is
necessary to refer to Article 294 of the Constitution of India,
which is quoted hereunder:
“294.Succession to property, assets, rights, liabilities and
obligations in certain cases.–As from the
commencement of this Constitution–
(a) all property and assets which immediately before such
commencement were vested in His Majesty for the
purposes of the Government of the Dominion of India
and all property and assets which immediately before
such commencement were vested in His Majesty for
the purposes of the Government of each Governor’s
Province shall vest respectively in the Union and the
corresponding State, and52/70
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(b) all rights, liabilities and obligations of the Government
of the Dominion of India and of the Government of each
Governor’s Province, whether arising out of any
contract or otherwise, shall be the rights, liabilities and
obligations respectively of the Government of India and
the Government of each corresponding State,
subject to any adjustment made or to be made by
reason of the creation before the commencement of this
Constitution of the Dominion of Pakistan or of the
Provinces of West Bengal, East Bengal, West Punjab
and East Punjab.”
This article declares which property would vest in the
Union and which would vest in the State Government.
Under it, all properties immediately before the
commencement of the Constitution which vested in His
Majesty for the purposes of the Government of the
Dominion of India vests in the Union and all properties
which vested in His Majesty for the purposes of the
Government of each Governor’s Province vests in the
corresponding State and all rights, liabilities and
obligations of the Government of the Dominion of India
and of the Government of each Governor’s Province are
recognised to be the rights, liabilities and obligations
respectively of the Government of India and the
Government of each corresponding State. So under this
article ownership question between the Union and the
State Government is to be tested and not under
obsolete Section 37 of the 1879 Code. Faced with this,
Mr Rohatgi submits that this vesting in favour of the
State could only be, if before the commencement of the
Constitution the land was used for the purposes of the
Government of the Governor’s Province. We have
already referred to the historical background as to how
first rights of individual were recognised. Thereafter a
register was brought into the picture for recording the
names of such owners including occupancy-right
holders and later land revenue was charged from such
holders of such land by the Government of the
Province, the administration and control of which was
with the Government of Provinces except when licences
were issued by the Union under the relevant Salt Act.
This position becomes more clear, after coming into
force of the Government of India Act, 1935. The 1935
Act for the first time effectively demarcated the
legislative powers of the federal legislature and the
provincial legislature. Sections 99 and 100 of this Act
define fields of legislation read with three lists
contained in the Seventh Schedule. “Land” under Entry
21 and “land revenue” under Entry 39 fell under the
Provincial List. When the Constitution of India came
into force, we find similar entries of “land” under Entry
18 and “land revenue” under Entry 45 of List II of the
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Seventh Schedule. This leaves no doubt that both
“land” and “land revenue” fell under the State List and
were governed by the State even prior to the coming
into force of the Constitution of India.
14. The question of title of the Union in the proceedings under
the Land Acquisition Act, which is under consideration,
admittedly is after the enforcement of the Constitution of
India. Hence the title over the land in question could not be
that of the Union of India.
40. It is then contended by the appellant that the trial
Court failed to construe the Indenture in accordance with
the Government Grants Act, 1895. Reliance is placed on the
judgment of the Hon’ble Supreme Court in “Dinshaw
Shapoorji Anklesari”, “Tata Steel Limited” and decisions of
this Court in “Vikas Kamalkar Walawalkar” and “Vaman
Janardan Joshi”. In these judgments, it was held that the
Transfer of Property Act, 1882 is inapplicable to
Government Grants Act and such grants must operate
strictly according to their own tenor. However, the said
judgements are of no assistance to the appellant. In
“Dinshaw Shapoorji Anklesari”, the dispute concerned a
property which was held under an old grant. The
superstructure had been transferred in favour of Dinshaw
Shapoorji Anklesaria and others by a grant of lease, but the
title of the land remained with the Union of India. The
Hon’ble Supreme Court allowed the appeal of the Union of
India, reaffirming the principle that a grant of lease of land
is governed entirely by the terms of the grant, and under as
per section 3 of the Government Grants Act, 1895, such
grants take effect according to their tenor notwithstanding
any rule of law to the contrary. Applying this principle, the
Court held that the grantee under old grant terms is a mere
occupier/licensee having no title over the land, so as to
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entitle him to transfer the land to another person, and that
it is always open to the Union of India to resume land held
on old grant terms. The Hon’ble Supreme Court held as
follows:
“41. Therefore, it is clear that the Government has unfettered
discretion and under Section 3 impose any condition,
limitation or restriction in its grants and the rights, privileges
and obligations of the grantee would be regulated only
according to the terms of the grant itself though they may be
inconsistent with the provisions of any statute or common
law.
42. The grants of lands situated in cantonment area under Old
Grants form a self-contained provision prescribing the
procedure as to the grant and resumption of the land and
hence recourse to the civil procedure code or the Specific
Relief Act will not be applicable.”
Such is not the case here. Similarly in Tata Steel
Limited, the Hon’ble Supreme Court was dealing with two
grants by erstwhile Governor of Bihar. While construing
these two grants, it was held that the rights and obligations
arising out of any transfer of piece of land or interest by the
Government, are to be ascertained only from the tenor of
the document made by the government evidencing such a
transfer. In “Vikas Kamalkar Walawalkar”, while examining
a grant of lease, this Court similarly held that the
provisions of the Transfer of Property Act, 1882 are
inapplicable to the grants made by the government. In
“Vaman Janardan Joshi” the grant in question was given by
the government of Angria and confirmed by the government
of Peshva. The issue was whether the English law, which
says that a grant from the Crown is construed most
strictly against the grantee and most beneficially for the
Crown, is applicable in India. In that context, the Court
held that unless a sanad contains word expressly granting
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the ownership of the soil, it must be held that ownership of
the soil was not granted. It is significant to note that the
grants examined by Hon’ble Supreme Court in “Dinshaw
Shapoorji Anklesari” and “Tata Steel” and this Court in
“Vikas Kamalkar Walawalkar” were grants which were
expressly denominated as “leases”, which vested in the
grantee only a limited, conditional, and terminable right of
use and occupation, with title in the land remained with the
grantor. The grant examined in “Vaman Janardhan Joshi”
was also of a different nature altogether. There is no doubt
as to the settled legal position that government grants take
effect according to their own tenor. The grant under the
Indenture has been construed in its own terms by the trial
Court and when read as a whole, undeniably discloses that
what was conferred upon the Grantee was not a mere
licence to use, but a comprehensive grant of an estate
which carried with it the plenitude of proprietary rights
ordinarily incident to ownership. Considering this
interpretation of the grant of Indenture, the reliance is
placed on the judgment of this Court in “Tejubhai Kom
Dadukhan Junglekhan” also fails.
The appellant’s reliance on Rule 76 of the 1921 BLRC
is equally misplaced.
41. The appellant has then sought to establish its title by
placing reliance on Rule 76 of the Bombay Land Revenue
Rules, 1921. The said Rule reads as under:-
“1. Use of land for the manufacture of salt prohibited except
on certain conditions. No occupant of unalienated land
(including Khoti and Talukdari) shall use the same or any
part thereof for the manufacture of salt without the
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previous permission in writing first of the Collector of Salt
Revenue, and then of the Collector of the District.
2. The Collector of the District may, in any case where such
permission is granted, either-
(a) require the occupant to relinquish his rights of
occupation, and to enter into an agreement that such
land shall be placed at the disposal of the Salt
Department, subject to a lease in favour of the
applicant on such terms as the Collector of Salt
Revenue under the general orders of Government
may require; or
(b) permit the use applied for without requiring the
occupant to relinquish his rights of occupation on the
following conditions:-
(i) that the occupant shall pay such fine as the
Collector may deem proper, not exceeding one-
tenth of the amount which would be leviable
under section 66 in a case of unauthorised use,
and
(ii) that the occupant shall execute an agreement
that he will pay to the credit of Salt Revenue in
lieu of the existing assessment and Local Fund
cess, such amount or rate as may be imposed
by the license to be granted by the Collector of
Salt Revenue in accordance with the general
and special orders of Government, and shall
also in respect of the land used conform to all
the conditions of such license; and
(iii) that whenever the Collector of Salt Revenues
declares that the land, or any part thereof, is
not used or has ceased to be used for the
manufacture of salt, such land shall forthwith
become liable to the survey assessment which
was chargeable upon it immediately before it
was permitted to be used for the manufacture
of salt.”
42. In 1946, this Rule was then amended and reads as
under:-
“76(1) [No occupant of unalienated land, whether assessed for
any purpose or not, shall use the same or any part
thereof for the manufacture of salt without the previous
permission in writing of the Collector of the district.
(2) The Collector may, in consultation with the Collector of
Central Excises and Salt Revenue, Bombay, grant
permission for the use of such land for such purpose,
subject to the payment of non-agricultural assessment
leviable on the land, and to such further conditions as the
Collector may, subject to the general or special orders of
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the Provincial Government, impose].”
43. It was argued by the learned Additional Solicitor
General that in order to manufacture salt, Rule 76(2)(a)
required the occupant to relinquish his occupancy rights
and place such land at the disposal of the Salt Department
subject to a lease. We are unable to accept the aforesaid
contention as a bare reading of the said Rule does not
reflect that for procuring a license to manufacture salt, the
occupant was required to surrender its occupancy rights to
the appellant. Until 1950, no separate license to
manufacture salt on the suit land was issued. There is no
evidence of the appellant contemporaneously taking over
possession of the suit lands under the said Rule 76(2)(a).
These facts have been confirmed by the appellant’s witness
PW-1 in his cross-examination, the relevant portion of
which reads as follows :-
Paragraph no.14 (@ page no.269 of paper-book)
“It is true to say that Collector Revenue is the only
Competent Authority to deal with the issue for conversion of
the lands for manufacture of salt. The Collector Salt is being
only consulted before grant of permission for manufacture of
salt. It is true to say that there must be relinquishment of
land in favour of Collector Revenue as per Rule 76(2)(a) of
the rules 1921. I do not know for that purpose there must be
registered Relinquishment Deed for being the transfer of the
property. I have not come across any lease deed by Collector
Land Revenue executed in favour of defendant Nos. 1 & 2
as contemplated under 76(2)(a). I have come across a final
order passed by Collector Revenue as per Rule 76(2)(a). I
have produced it on record in the suit. There is no any
agreement between defendant No.1 or 2 at one hand and
salt department on the other hand to place the lands for
manufacture of salt as contemplated under 76(2)(a) under
Manik Mira Salt Works.”
Paragraph no.18 (@ page no.273 of paper-book)
“It is true to say that as per contents of Exh. 214 only
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only the question would arise whether to grant or refuse the
permission. It is true to say that Defendant No.1 never made
such application. It is true to say that Defendant No.1 never
asked the salt department or Collector Thana to convert the
land of Manik Mira Salt Work for salt Manufacturing. It is
true to say that as per Exh. 214 only Defendant No.1
established its right over the land of Manik Mira Salt work.
It is true to say that Defendant No.2 was not permitted by
Defendant No.1 and 4 to go on for the salt activities. I do not
know whether in this regard collector Salt had not taken
any action. I do not know whether I have any document to
show that any action has been taken against Defendant No.
1. I have not seen any documents to that effect.”
44. Thus, the contention of purported relinquishment/
surrender of occupancy rights in appellant’s favour cannot
be accepted, merely because respondent no.2 had obtained
salt manufacturing licenses. In any case, Rule 76 operates
only in respect of unalienated lands, whereas the suit lands
were part of alienated villages. After the enactment of the
Salsette Act 1951, Rule 76(2)(a) ceased to have any
application, as land revenue was now to be paid to
respondent no.3.
45. In the present case, from 1870 and in any case after
the notification dated 16th July 1938 until 1983, neither the
British Government nor the appellant asserted ownership
or exercised proprietary rights over the suit lands. The
appellant has not produced any contemporaneous record,
notification, or revenue entry evidencing its ownership or
control over the suit lands at any point of time. This
completely negates the appellant’s case on title. Similarly,
the appellant’s reliance on the Gazetteer of Bombay
Presidency, which is only an administrative work to provide
information and assist in local governance cannot be relied
upon by the appellant to prove title. In any event, the
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conveyances/ transfer deeds executed by various Eksali
cultivators-who were tenants of the Grantee (Respondent
No.1)-in favour of the predecessor-in-title of Respondent
No.2, from 1928 onwards, are on record and marked as
Exhibits 83 to 199 by the trial Court. The oral evidence of
the appellant’s witness (PW-1) further establishes that no
objection was raised by the appellant in respect of these
sale deeds.
46. The relevant portion of the appellant’s witness’s (PW-
1) cross-examination is extracted below:
Paragraph no.5 (@page No.266 of Paper Book)
“I am aware that on 25.03.2013 we have filed affidavit
admitting the documents at Exh. 181 to 254 in evidence.
Contents of my evidential affidavit are based on averment of
the Plaint and those documents.”
Paragraph no. 6 (@page No. 266 of Appeal Paper Book)
“The expression “Private Land and Purchase land”, used in
various documents has reference to (1) land purchased by
Defendant No.2 (2) land purchased from private parties and
(3) land sold by Government to defendant No.2. It is true to
say that sale deed Exh. 83 to 181 are falling in one of the
aforesaid categories. Plaintiff has never raised any objection
or filed proceeding about those sale deeds till today. I do not
know whether Plaintiff has initiated any proceeding or
disputing those sale deeds.”
47. The appellant’s claim surfaced only in 1983, and that
too incidentally in the context of salt licence renewals. No
explanation is forthcoming as to why the appellant did not
assert its title over the suit lands for almost 113 years or
atleast since the 16th July 1938 notification that was issued
by the appellant’s predecessor government under section
172 of the 1935 GOI Act. The defense of respondent nos.1
and 2 cannot be the basis for the appellant to establish its
title.
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Respondent no.3 (State of Maharashtra) has no title to
the suit lands and its claim has been rejected by Courts
including the Hon’ble Supreme Court of India.
48. Respondent nos. 3 to 5 have been represented by
advocates before the trial Court as well as before this Court.
No Written Statement was filed before the trial Court nor
has the learned Additional Government Pleader advanced
any submissions before us. As regards competing claims of
the respondents to the suit lands, Respondent no.3 had, in
the past, claimed title against respondent nos. 1 and 2, but
lost in all proceedings. The historical record is
overwhelmingly in favour of respondent no.1 as evident
from the following undisputed facts:
(i) The notification dated 19th December 1949 under
Section 2(9) of the BTAL Act declared respondent
no.1 as the “landholder”. The dispossession of
respondent no.1 and statutory assumption of its
management by respondent no.3-State under
Section 44 of BTAL Act proceeds on the basis
that the lands were private estates and not the
property of the appellant. Had the suit lands
belonged to the appellant, the Provincial
Government/respondent no.3 may not have
exercised powers under the BTAL Act. Be that as
it may, this action of respondent no.3 resulted in
litigation and after a decree was passed in Suit
no.123 of 1955 in favour of respondent no.1,
respondent no.3 reversed its actions and61/70
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returned the possession to respondent no.1 on 1 st
October 1957.
(ii) The Salsette Act subjected the suit lands to land
revenue and by an order dated 5th September
2008, respondent nos. 3 and 4 recognized
respondent no.1 as the land-holder/ superior-
holder of the suit lands. All challenges to this
order including up to the Hon’ble Supreme Court
have failed, affirming this position.
(iii) The order dated 8th October 2010 of respondent
no.5 refers to the judgment of this Court dated
27th January 1988 and after noting that
respondent no.3 had not filed any written
statement, held that title of respondent no.3 had
passed to respondent no.1. As this order is not
challenged by respondent no.3, this has also
attained finality at least vis-à-vis respondent
no.3.
49. Thus, respondent no.1 has been held to be the owner
of the suit lands qua respondent no.3. In view of the above
executive and judicial decisions, the appellant cannot
contend that since respondent no.3 is not the owner of the
suit lands, as a corollary, the title to the same will vest in
the appellant.
Conduct of the appellant and the admission of its
witness (PW-1) on the lack of title
50. It may be noted that during the course of cross-
examination, the appellant’s witness Harikrishna Agarwal
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(PW-1) admitted that the suit lands are private lands. PW-1
also admits that no steps were taken to assert the
appellant’s title under the above-mentioned statutory
provisions. The relevant portion of PW-1’s cross-
examination read as under:
Paragraph no.10 (@ page no. 268 of the paper-book)
“It is true to say that sanction under Exhibit 194 was given on
9th May 1939 i.e. after coming into force of Government of India
Act, 1935. It is true to say that said Act came into force in the
year 1937. It is true to say that the then Federal or Provincial
Government or Revenue Authority or Collector Salt had not laid
any claim over the privately purchased land in the Manek Mira
Salt Work. I do not know whether those authorities including
plaintiff had invoked Article 172 of the Act of 1935 or Rule
76(2a) of Bombay Land Revenue Rules, 1921. However, no
document in our possession to show that above said
authorities had invoked Article 172 of the Act of 1935 or Rule
76(2a) of Bombay Land Revenue Rules, 1921. I have not seen
come across any such order passed by any of aforesaid
authority in 1939. It is true to say that the object behind
bifurcation of Mira Salt Work in two divisions i.e. Shapur Salt
Work and Manik Mira Salt Work was to maintain distinction
between the land given on lease to defendant no.2 and the
land privately owned by defendant no.2.”
Paragraph no.42 (@ page no. 283 of the paper-book)
“Now, I have seen Exhibit 192. It is true to say that in that
notification property reserved for Federal purposes have been
notified. I do not know there is no other list of the properties for
Federal purposes like that. Suit properties are not falling with
the sweep of that notification. I do not know if the lands belong
to Central Government are exempted from revenue assessment
and payment. I never come across like situation. I do not know
whether suit property was subjected to land revenue.”
51. The learned senior counsels for respondent nos.1 and
2 have referred to this evidence to show that even PW-1 has
admitted to the lack of title of the appellant. While the mere
oral evidence of a witness cannot divest title, the evidence of
PW-1 is one more factor in testing the credibility of the
appellant’s claim. The appellant has not produced any
notification which shows the vesting of the suit lands in its
favour or that the appellant exercised control/ possession/
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ownership over the suit lands at any point of time. Even
after the 1935 GOI Act, the appellant (Union of India)
admittedly did not invoke section 172 of the said Act or any
other statutory provisions to assert or claim proprietary title
over the suit lands. Thus there was no contemporaneous
act of vesting, no notification, no administrative order, nor
any assertion of ownership, no entry in any government
records that would indicate the appellant’s title to the suit
lands. Had title in fact vested by operation of law, the
appellant would necessarily have exercised asserted
dominion and ensured such ownership is duly reflected in
the official records. The appellant’s failure to do so also
negates the appellant’s claim on title.
52. The learned ASG has relied upon the decision of the
Hon’ble Supreme Court in Ambika Prasad Thakur to
contend that the admission of PW-1 cannot divest the
appellant of its title in the suit land. In Ambika Prasad
Thakur, the trial Court had decided the issue of title in the
favor of the plaintiff on the basis of inter alia admission of
one of the defendants. It was held that the admission was
made under suspicious circumstances and the written
statement of the said defendant was never formally
amended. Considering the surrounding circumstances, the
admission was held to be having a weak evidentiary value.
Further, the plaintiff did not claim the tenancy rights either
by an express grant or by adverse possession. In this
background, the Hon’ble Supreme Court held that the title
cannot pass by mere admission. The Hon’ble Supreme
Court held as follows:
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“13. On the question of title also, the plaintiffs must fail. In the
plaint, the basis of their claim of title was (a) occupation
of 426 bighas. 18 kathas and 9 dhurs of Dubha Taufir by
their ancestor Naurang Thakur as occupancy tenant and
the record of his rights in the survey papers of 1892 and
(b) the oral arrangement with the Dumraon Raj. The first
branch of this claim is obviously incorrect. The survey
papers of 1892 do not record occupancy tenancy rights of
Naurang Thakur in 426 bighas, 18 kathas and 9 dhurs.
In the High Court, counsel for the plaintiffs conceded that
in the Khasra of 1892-1893 survey the plaintiffs branch
was recorded as tenant for about 19 bighas only. The
oral arrangement is not established, and the second
branch of this claim also fails. The Subordinate Judge did
not examine the basis of the plaintiffs claim of title. His
finding in favour of the plaintiffs’ title was based chiefly
on (1) oral evidence. (2) depositions of witnesses in
previous litigations, (3) possession, (4) an admission of
the Maharaja. The oral evidence on the point is not
convincing. The claim is not supported by the
documentary evidence. The survey papers of 1892, 1895,
1904, 1909 and 1937 do not support the plaintiffs claim
of occupancy rights in the lands in suit. The depositions
of witnesses in other litigations do not carry the matter
further. The deposition of Defendant 11, Ram Dass Rai, in
Suit No. 217 of 1911 is of weak evidentiary value.
Though admissible against him as an admission, it is not
admissible against the other defendants. The other
depositions relied upon do not satisfy the test of Section
33 of the Indian Evidence Act. and are not admissible in
evidence. We have already found that the plaintiffs and
their ancestors were not in possession of the disputed
land since 1909. The oral evidence as to their possession
before 1909 is not convincing, and we are not inclined to
accept it. The documentary evidence does not support the
story of their possession before 1909. With regard to the
admission of the Maharaja in Suit No. 247/10 of 1913
relating to the plaintiffs’ title to 244 bighas, we find that
in his written statement the Maharaja asserted his khas
zeraiti rights and denied the alleged guzashta kastha
rights of the plaintiffs’ ancestors. It seems that in Bihar
‘guzashto kashť means a holding on a rent not liable to
enhancement, Later, on 10-06-1913, a petition was filed
on his behalf stating that the plaintiffs’ ancestors were
tenants in occupation of the disputed land having
guzashto kasht rights. The Maharaja was interested in
the success of the suit, and it was necessary for him in
his own interest to make this admission. The admission
was made under somewhat suspicious circumstances at
the end of the trial of the case when the arguments had
begun. Though this petition was filed, the written
statement of the Maharaja was never formally amended.
In the circumstances, this admission has weak
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evidentiary value. In this suit, the plaintiffs do not claim
tenancy right either by express grant or by adverse
possession. Title cannot pass by mere admission. The
plaintiffs now claim title under clause (1) of Section 4 of
Regulation 11 of 1825. The evidence on the record does
not establish this claim.”
53. We find no such circumstance in the present case.
The admission by PW-1 is categorically recorded in his
cross-examination and admits of no ambiguity whatsoever.
However that is not the sole or even the primary basis upon
which the trial Court has returned its finding on the issue
of title. The trial Court’s determination is based on
appreciation of documentary evidence placed on record by
the parties and the statutory provisions.
Non-adjudication of prayer clause (b) in the suit by the
trial Court is not fatal
54. The appellant lastly contends that the trial Court
failed to adjudicate its challenge to the order dated 18 th
November 2002 passed by respondent no.4 as also the
order passed by respondent no.5 on 8th October 2010. We
find no merit in this submission. The challenge to the
aforesaid orders is completely dependent on the appellant
establishing its title under Issue no.1. The foundation of
prayer (b) is the appellant’s asserted ownership and is
subsumed in Issue no.1. Once the appellant’s principal
claim of ownership fails, the appellant’s challenge to orders
passed by respondent nos.3 and 4 becomes academic. The
heading of section 20 of 1966 MLRC reads “Title of State in
all lands, public roads etc., which are not property of
others”. The determination under section 20 therefore
relates to a claim which is not the property of others and
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therefore belongs to the State. In the present case,
respondent no.3 has accepted the determination in favour
of respondent nos.1 and 2, including under Salsette Act. It
is not the appellant’s claim that respondent no.3 has the
title in the suit lands and therefore it is imperative to
adjudicate prayer (b). In any event, under Order XLI Rule
24 of CPC, the appellate court may sustain the decree on
any ground borne out by record. It enables the appellate
Court to dispose of the matter finally without a remand if
there is sufficient evidence on record, notwithstanding that
the appellate Court proceeds on a ground different from
what the trial Court has proceeded. In our view, prayer (b)
of the suit does not survive independently. An order of
remand cannot be passed in a routine manner as it
elongates the life of the litigation without serving the cause
of justice. Remand of the matter only for prayer (b) is
neither necessary nor warranted in this case since we find
that the long course of legislative recognition and judicial
adjudication supports respondent no.1’s status as a
superior holder.
55. The learned ASG’s reliance upon a judgment of the
learned Single Judge of this Court in the case of “Union of
India v. Alark Laxman Desai” is also misplaced. By an order
dated 25th March 1996 passed in Civil Appeal No.6743 of
1996, the Hon’ble Supreme Court had directed the parties
to approach the Competent Authority under the Code for
adjudication on the issue of title of the land. The question
that arose before the Court was whether such a direction,
requiring the parties to avail the statutory remedy before
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the Competent Authority, had the effect of foreclosing their
right to subsequently challenge any order passed by the
Competent Authority by way of a civil suit under section 20
of the 1966 MLRC. This Court answered the said question
in the negative and held that the direction to approach the
Competent Authority did not extinguish or foreclose the
parties’ right to institute a civil suit under section 20 to
challenge any order that may be passed by the Competent
Authority. In arriving at this conclusion, this Court
observed as follows:
“35. To summarize, the Apex Court directed the parties to
approach the Competent Authority under the Code for
adjudication of their grievance. The Respondent
approached the Competent Authority under Section 20(2)
of the Code. The order passed by the Apex Court did not
foreclose the right of the parties after the order is passed
by the Competent Authority, as available in law. Section
20(4) itself refers to filing of a suit to challenge orders
passed under Section 20.”
56. However in the present case, it has become
inconsequential as the issue of title has been decided
against the appellant. Even if the suit is remanded to the
trial Court for adjudication of prayer (b), the end result will
still be the same as the appellant has not been able to
independently establish its title. Thus, the reliance placed
on this decision of “Alark Laxman Desai” is misplaced.
Reliance on the decisions in “Jagdish Hari Thatte” and
“Sathyanath” also does not assist the appellant. The said
judgments lay down the well settled principles under Rule 2
of Order XIV which mandate the trial Court to pronounce
judgment on all issues notwithstanding that a case may be
disposed of on a preliminary issue. The rule also lays down
that the Court may try the issue of law first if it is of
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opinion that the case or any part thereof may be disposed
of on such issue. In “Jagdish Hari Thatte”, this Court was
only considering the question as to whether it is necessary
for the Court to decide on all issues on merits if it comes to
the conclusion that it lacks jurisdiction, at the time or
before passing an order of the return of plaint. Similarly in
“Sathyanath”, the trial Court only considered issue relating
to res judicata and limitation as preliminary issues while
passing an order under Order VII Rule 11 for rejection of
plaint. That is not so here. The trial Court in the impugned
judgment framed eight issues. In the present case, the
appellant had the recourse of Rule 5 of Order XIV to move
an application in the trial Court seeking framing of
additional issue regarding the legality of the order dated
18th November 2002 passed by respondent no.4 as also the
order passed by respondent no.5 on 8th October 2010. The
appellant did not do so. It is not the case of appellants that
the Issues were not framed properly. The trial Court has
recorded findings on all of the eight issues framed. The trial
Court held that the appellant had failed to establish its
ownership over suit properties and thus it is not entitled to
claim consequential relief of claiming the possession of the
suit property. Thus, the mandate under Rule 2 of Order XIV
of CPC has been discharged. Considering the same, there is
no infirmity in the impugned judgment on the ground of
purported failure of the trial Court to adjudicate upon
prayer clause (b).
57. In conclusion, we find that the trial Court has rightly
held that the appellant has failed to establish its title.
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Consequently, First Appeal no.1430 of 2019 is dismissed.
There shall be no order as to costs.
58. After the judgment was pronounced, a prayer has
been made by Mr. Anil Singh, the learned Additional
Solicitor General for continuing the status quo order dated
2nd September 2021 passed in Interim Application (St)
No. 97107 of 2020 with Civil Application No. 384 of 2019.
In a judgment passed in this First Appeal which arises out
of a dismissed suit, there cannot be an order for
continuing of the status quo order as requested on behalf of
the appellant-Union of India. The prayer is, accordingly,
rejected.
[ GAUTAM A. ANKHAD, J. ] [ CHIEF JUSTICE ] BHARAT DASHARATH PANDIT Digitally signed by BHARAT DASHARATH PANDIT Date: 2026.05.01 00:41:32 +0530 70/70 FA-1430-2019-Judgment-corrected.doc Dixit ::: Uploaded on - 01/05/2026 ::: Downloaded on - 01/05/2026 05:01:15 :::
