LexDAJI KRISHNAJI DESAI TAMBULKAR versus GANESH VISHNU KULKARNI AND OTHERS
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'• > l S.C.R. SUPREME COURT REPORTS 905 not been established that the Chief Customs Authority made its order under s. 190 of the Act with the con- sent of the respondent. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under s. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. In the result the order of the High Court )s correct and the appeal is dismissed. Appeal dismissed. DAJI KRISHNAJI DESAI TAMBULKAR v. GANESH VISHNU KULKARNI AND OTHERS (K. SUBBA RAO, RAGHUBAR DAYAL and J. R. MUDHOLKAR, JJ.) Khoti Land-Transfer prior to Ig46 without consent of Khot- Rights of purchaser-Bombay Tenancy Act, I939 (Bom. 290] I9J9), s. 3r-Khoti Settlement Act, I88o (Born. I of I88o), ss, 3, 9, The land in suit was Khoti land and s. 9 of the Khoti Settlement Act, r88o, prior to its amendment prohibited the transfer of the occupancy right without the consent of the Khot. Section 31 of the B)mbay Tenancy Act, r939, which came into force from April 1946, amended s, 9 of the Khoti Settlement Act by which no consent of the Khot was necessary for transfer- ring the occupancy rights in the land. In 1892, R sold his occupancy right without the consent of the Khot to L, the pre- decessor-in-interest of respondent No. I. In 1945, R's successor again sold the same occupancy right to the appellant also with- out the consent of the Khot. The appellant's case was that the sale deed in 1892 in favour of the predecessor-in-interest of respon- dent No, r was void as the transfer of the occupancy right was made ·without consent of the Khat; whereas respondent No. l contended that R by the sale deed in 1892 had already lost, his right to the property in suit and therefore R's successors had no title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not be transferred without consent of the Khat prior to April r946, when the Bombay Tenancy Act, 1939, came into force. Il4 Ig6I Colltctor of Customs, Baroda v. Digvijaysinhji Spinning & fVeaving 1\-1 ills Ltd. Subba Rao ]. April I2. 906 SUPREME COURT REPORTS [1962] I96I Held, further, that in the present case as both the sales of 1892 and 1945 were without the consent of the Khat, it was Daji J(rishnaji not necessary to determine whether such a transfer was void Desai Tambulkar or voidable, If void, the plaintiff had no title. If voidable, v. the first sale in 1892, validly conveyed title to respondent No. Ganesh Vishnu r's predecessor-in-interest, and consequently no title passed to Kulkarni the plaintiff under the sale deed in 1945, as the transferor had no title. Raghubar Dayal ]. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1956. Appeal by special leave from the judgment and decree dated August 5, 1953, of the Bombay High Court in Appeal from the Appellate Decree No. 915 of 1951. M. S. K. Sastri, for the appellant. A.G. Ratnaparkhi, for respondent No. 1. 1961. April 12. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiff- appellant. The plaintiff sued for a declaration. that the pro- perty in suit which is situate at Monje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow ofVishram Anna Shirsat, who succeed- ed Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Rant and Tanu Daulat Gavade Sakaram, the heir of Lax- man Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respon- dent no. 1, purchased the shares of these persons by _, -" 1 S.C.R. SUPREME COURT REPORTS 907 , the sale deeds dated December 14, 1903, and February r96r 13, 1904. On Kulkarni's death, respondent no. 1 D .. K . h .. b th f h R d t a;i ris na;i ecame e owner o t e property. espon
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