JUDGMENT :

Tulzapurkar J. - The question raised in this appeal relates to the applicability of the second proviso to section 5(2) of the Bombay Service Inams (Useful to Community) Abolition Act, 1953.

2. Respondent No. 2 claimed the regrant in respect of Inam lands which had been resumed under section 5 (1) of the Act by the State of Maharashtra averring that he and his father Bhawani were the `holders' of the lands in question since 1911 right upto the time when Inams in question came to be abolished under the Act rendering service to the village community of filling water troughs for the village cattle. The Mamlatdar who held an inquiry came to the conclusion that respondent No. 2 was not 'Halkari', i.e., holder of Hal Inam Lands within the definition of 'holder' as given in section 2(1)(d) of the Act. The respondent No. 2 carried the matter in appeal to the Collector who by hid order dated October 11, 1962 reversed the decision of the Mamlatdar and held that respondent No. 2 was entitled to the regrant on the basis that he and his father were in lawful possession of the Inam lands for the last 50 years and that they were also rendering service required of them to the village community and this evidence was enough to hold that respondent No. 2 was lawfully holding the Inam land within the meaning of section 2(d). On appeal by the Village Panchayat the Commissioner reversed the Collector's decision and the Commissioner's order dated September 11, 1964 was confirmed by the Government on June 11, 1965. Respondent No. 2 filed a writ petition before the High Court of Bombay challenging the Commissioner's decision as well as the Government's decision and the High Court set aside both the decisions and restored that of the Collector and directed that on the facts of the instant case respondent No. 2 was a lawful holder of the lands in dispute and was entitled to the regrant under section 5(2) of the Act. It is this decision of the High Court that has been challenged before us by the Village Panchayat, Nhavi.

3. Counsel for the Village Panchayat has contended that the High Court has wrongly thrown the burden of proof on the Revenue while under the second proviso to section 5 (2) of the Act the burden lay on respondent No. 2 to prove that he was in possession of the lands as a result of some alienation of land in his favour or in the favour of his predecessor which had been made with the sanction of the competent authority, especially when it was admitted by respondent No. 2 that he was not related to the original grantee and the High Court ought to have held that the burden had not been discharged by respondent No. 2.

4. It was not disputed before us that the original grantee was one Gana Dhira Chaudhari to whom lands in question were granted in that Inam on May 29, 1868. The relevant Entry No. 744 in Land Alienation Registrar, Taluka Yawal, East Khandesh has been produced on record. At the inquiry before the Mamlatdar all that was pointed out by respondent No. 2 was that his father's name had been entered in the Record of Rights as the holder of these inam lands since 1911 and his name since 1954. It appears that respondent No. 2 gave an admission to the effect that he was not related to the original Sanad holder and therefore it became necessary for him to show how the lands came in possession of his forefathers and that the transfer, if any, was with the sanction of the competent authority. The contention of the counsel for the appellant has been that the matter was governed by second proviso to section 5(2) which runs thus:

"Provided further that where a service Inam consisting of land is inalienable and is in the possession of a person other than the descendant of the original grantee, then for the purposes of recreant of land, the person in possession of the land shall produce satisfactory documentary evidence to show that the alienation of the land in his favour or in favour of his predecessor in title was made with the sanction