V.A. Mohta, J.
1. Question is whether the suit lands were 'Watan Lands' as defined under section 2(h) of the Bombay Paragana and Kulkarni Watan (Abolition) Act, 1950 (the Abolition Act) on or before 1st February 1951 when the said Act was brought into force.
2. The point arises against the following undisputed factual background. Survey No. 592/1, 6 acres, 34 gunthas, Survey No. 592/2, 4 acres and 14 gunthas and Survey No. 592/3, 4 acres and 11 gunthas from village Kudas taluka Khed, District Pune, were the ancestral property of the plaintiff- Shankar Kulkarni. They were 'watan property' under the Bombay Hereditary Offices Act, 1874 (The Watan Act). In the Inam Patrak of 1898-99 (Exh. 102) it is mentioned that a Judi was levied upon these lands which the predecessors of the plaintiff were paying. In the Inam Patrak of 1909-10 (Exh. 103), it is mentioned that the Government started recovering full assessment from the predecessors of the plaintiff who were Watandars. The plaintiff had applied to the Government for commutation of Watan relieving him from the duty of rendering service as the Watandar Kulkarni. The Watan was commuted with certain terms and conditions and the plaintiff became free from obligation to render service as Kulkarni with effect from 16-3-1937 when he was granted a Sanad (Exh. 82) under which cash allowance of Rs. 80/- was agreed to be paid in perpetuity to the Watandar every year. Condition No. 1 in Exh. 82 lays down that subject to the payment of Judi not exceeding the full assessment, as shall from time to time be leviable, the land shall be continued hereditarily in a specified manner as Watan lands without demand of service. Condition No. 4 lays down that the lands and cash allowance shall be subject to provisions of sections 5 and 10 to 12 of the Watan Act and the Collector may order on application in writing by the holder that the said provisions shall not apply and the said order shall be endorsed on the Sanad.
3. It is thus clear that the Watan character of the suit lands was specifically retained and the succession to such lands was also revised in the specified manner and this the position continued till the Abolition Act came into force. Admittedly the plaintiff did not pay the occupancy price on or before 30th April, 1956 as required under section 4 of the Abolition Act, deposited the same in the year 1957, prayed for acceptance of the delayed occupancy price and regrant the lands and their conversion into ryotwari lands. The Revenue Authorities turned down the request of the plaintiff and granted lands to defendants Nos. 4 to 6 who were in actual occupation as tenants for past several years. Hence the plaintiff filed this suit for declaration that the lands had ceased to be Watan lands and were ryotwari lands when the Abolition Act came into force as a result the Abolition Act would not apply. A relief of actual and/or symbolic possession was also prayed for. Both the Courts dismissed the suit and hence this Second Appeal.
4. Mr. B.P. Apte, learned counsel for the appellant, invited my attention to a decision of this Court in the case of Ramijyabi Maktumsaheb Jamdar v. Gudusaheb wd. Faridsaheb Avati 54 Bom L.R. 405 in which it is laid down that in case a property which was originally Watan property is continued with the holder thereof, but without the (hoder) having to render services and with the full levy of assessment from him, the effect of such continuance is that the property ceases to be watan property and is converted into a ryotwari holding in which holder is invested with the rights of an ordinary occupant. He further contended that ratio of the above decision will clearly apply to the matter because when the Abolition Act came into force full assessment was levied on the lands and there was no obligation on the part of the plaintiff to render service. The submission though impressive, in the first blush, is not correct. Whether or not the property was Watan land under the Abolition Act would depend upon actual terms and conditions of the grant. In this connection, section 15(1) of the Watan Act may be noticed. It reads thus :
'15. (1) The Collector may, with the consent of the holder of a Watan, given in writing, relieve him and his heirs and successors in perpetuity of their liability to perform service upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder.'
The above provision leaves no manner of doubt that all depends upon the actual Terms and Conditions on the basis of which commutation of service is granted. In the absence of actual Terms and Conditions, non-requirement of rendering service and requirement of paying full assessment may lead to a presumption that the property had ceased to be a Watan land and was converted into ryotwari holding as held in Ramijyabi's case (supra). But actual Terms and Conditions are known in the case, which clearly indicate that Watan character of the lands were specifically retained. In this context, I can do no better than to reproduce the following observations of the Supreme Court in the case of Bachharam Datta Patil v. Vishwanath Pundlik Patil 1957 Bom L.R. 93 :
'It is possible to conceive of a case where the conditions agreed upon provide for the continuation of the watan tenure in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be that there were no conditions agreed between the parties continuing the watan character of the land after dispensing with the service.'
5. Section 3 of the Abolition Act specifies that with effect from and on the appointed day, all Paragana and Kulkarni Watans were deemed to have been abolished. Section 4 makes the holder of watan land to be occupant on payment of occupancy price equal to twelve times of the amount of the total assessment of such land within five years from the date of coming into force of the Act. It further provides that on failure to pay the occupancy price within time, the holder shall be deemed to be an unauthorised occupant and shall be liable to be summarily ejected. Admitted position is that the occupancy price was not paid within time. It was paid very late. There is no provision for condonation of delay. Prayer for condonation was rejected. Defendants Nos. 4 to 11 were occupying the property for number of years as tenants under the Bombay Tenancy and Agricultural Lands Act, 1948. Section 8 of the Abolition Act contemplates that the Tenancy Act applies to the tenant of Watan land. Defendants Nos. 4 to 11 could not be evicted from the lands except under the Tenancy Act. The Collector was, under the circumstances, fully justified in granting the lands to the tenants on their paying occupancy price as per the Abolition Act.
6. Under the circumstances, this Second Appeal is dismissed. No order as to costs.