Shah J.
1. It will be convenient at the outset to set forth the genealogical table of the family of the original grantee of the Hebli estate.
Appajirao
|
Balwantrao
____________________________________|___________________________
| |
Suryarao Ramachandrarao
____|__________________ ________________|________
| | | |
Lakshmanrao Venkataro Krishnarao Raghunathrao
____|_________ | ______|__________ |
| | | | | |
Appajirao Madhavrao | Pandurangaro | *Ramchandrarao
| | | (Adopted son)
| | | |
Suryarao | | |
| | | |
Lakshman | | |
| | *Ramachandrarao |
Kattobarao | (given in adotion |
alias Annasaheb | to Raghunathrao |
| |
| |
| |
___________________________________________|_____________ |
| | | | |
Vithalrao Govindrao Krishnarao Shrinivasrao |
| | | | |
Chidambarrao Ramarao Raghunathrao Gururao |
___|___________ (Plantiff) |
| | |
Vithalrao Madhavrao |
|
_________________________________________________________________________|
| | | |
Narsingrao Bhaskarrao Narayanrao Balwantrao
2. The original grant of the Kasba Hebli was made to Balwantrao by the Peshwa. At the introduction of the British Government, the estate was held by Lakshmanrao bin Suryarao and his uncle Ramchandrarao. Lakshmanrao died in A.D. 1836 and was succeeded by his son Appajirao. Ramchandrarao was succeeded in A.D. 1818 by his sons Krishnarao and Raghunathrao. The latter adopted Ramchandrarao and this adoption was recognised by the British Government in 1839. Krishnarao died in 1842 and was succeeded by his son Pandurangrao. Pandurangrao died in 1899, It is the estate held by Pandurangrao or rather a part of it with which we are concerned in this litigation.
3. The share of the Hebli estate held by Pandurangrao was resumed by the Bombay Government and regranted to Narsingrao Ramchandra in 1901. The Secretary of State for India in Council, however, ultimately directed in 1904 that Pandurangrao's estate should be resumed and regranted to Vithalrao, the great-grand-son of Pandurangrao. As a result of this grant to Vithalrao the present plaintiff was dispossessed of the lands in suit.
4. The plaintiff Gururao filed the present suit in 1911 in the District Court of Dharwar to recover possession of the property mentioned in the schedule referred to in the plaint with mesne profits. He based his claim mainly upon two grounds: firstly, that the grant to Pandurangrao was a Sarva Inam and not a Saranjam and that therefore it was not resumable by Government, but heritable and partible property; and secondly that even assuming the grant to Pandurangrao to be a Saranjam, the Government could resume what they granted, viz., the royal share of the revenue and not the lands and that the Government could assess the lands and recover the royal share of the revenue but could not dispossess the plaintiff. The property described in the schedule attached to the plaint is claimed as forming one-sixteenth share of the whole estate, i.e., one-fourth of Pandurangrao's one-fourth share in the estate. The suit is filed against the Secretary of State for India in Council, who is defendant No. 1 and Vithalrao, the new grantee, who is defendant No. 2.
5. The defences raised by defendant No. 1, briefly stated, are that the suit is barred by Section 4, Clause (a) of the Revenue Jurisdiction Act (X of 1876), that the grant is not a Sarva Inam but a Saranjam, that the plaintiff is not entitled to recover separate possession of the property, as the Saranjam is impartible except to such extent as may be recognised by the Government and that the Government could take possession of the lands in effecting resumption. Defendant 2 made no separate defence but adopted the contentions of the defendant No. 1.
6. On the plaint and the written statement which have been stated in detail in the judgment of the lower Court, several issues were raised.
7. The lower Court in effect found that the grant to Pandurangrao which was declared by the Government in 1863 to be Saranjam and not Sarva Inam, must be treated as Saranjam and that the Court had no jurisdiction to question the declaration made by the Government. It further found that though the grant was of land revenue the right to hold the land went with and therefore formed part of the grant and that the lands were resumable as the grant was. It also found that the ' lands being held as part of the Saranjam, the suit was barred by the Revenue Jurisdiction Act.
8. It is not now necessary to notice the findings on other issues.
9. The result was that the plaintiff's suit was dismissed with costs.
10. The plaintiff has appealed from the decree of the District Court and has practically confined his appeal to the prayer for possession subject to his paying the royal share of the revenue and mesne profits.
11. It is not contended before us that the original grant was not Saranjam, but Sarva Inam. It is difficult to see how such a contention could be raised now. When the descendants of Balwantrao including Pandurangrao made their claim to the estate as Sarva Inam before the Inam Commissioner in 1858 under Act XI of 1852, the Inam Commissioner decided that the claimant's title to hold Kasba Hebli in Sarva Inam was invalid, but that its enjoyment was not to be interfered with in consequence of his decision (see Exhibit 34, para 31). The Government declared in November 1858 that Hebli should be continued to the family, which held it as hereditary in the fullest sense of the word (Exhibit 41); and they further held in 1863 that it was to be regarded as a Saranjam and not as Sarva Inam (Exhibit 37). Under the provisions of Act XI of 1852 it was for the Inam Commissioner and Government to decide whether the grant was a Saranjam or a Sarva Inam and their decision must be accepted as decisive of the point raised by the plaintiff in the suit, but not pressed in appeal, as to whether Hebli is held by the family as a Sarva Inam or a Saranjam.
12. It may be mentioned here that Ramrao, grand-son of Pandurangrao by his second son Govindrao, had filed suit No. 3 of 1907 against the present defendants on the ground that the property held by Pandurangrao was Sarva Inam and that the regrant to Vithalrao was illegal. But that suit was held by the High Court to be barred by Section 4 Sub-section (a) of the Revenue Jurisdiction Act and the decision of the Inam Commissioner was held to be final; and it was further held that the title to and continuance of the estate held as Saranjam must be determined under Schedule B, Rule 10 of Act XI of 1852 under such rules as Government may find it necessary to issue from time to time. The main point argued in the present case was suggested for the first time in appeal in that case. The High Court, however, held that it was a question which ought not to be decided in that suit and abstained from expressing any opinion on it: see Ramrao v. Secretary of State (1909) 11 Bom. L.R. 1333 : I.L.R. 34 Bom. 232.
13. The principal point, however, argued and insisted upon by Mr. Kelkar in support of this appeal is that the Saranjam is merely a grant of the royal share of the land revenue without any relation to the possession of the land, that the grantee may have possession of the lands before the grant or may take possession of any vacant or unoccupied land after the grant and that the right to the possession and enjoyment of the lands is outside the grant and does not form any part of the grant. It is further argued that the Government can resume only what they have granted, that is, the royal share of the revenue and that as a result of the resumption the lands which were not liable to assessment may be liable to be assessed. But the possession and revenue of the lands subject to the payment of assessment form part of Pandurangrao's ordinary heritable estate, in respect of which the plaintiff's rights cannot be affected by the resumption of the Saranjam. The rule as to resumption in the case of Inam lands where the grant is of the royal share of the revenue only has been relied upon as affording a ground for putting the same meaning upon resumption when applied to the case of a Saranjam. By way of reply it is argued on behalf of the respondents that though the grant may be of the royal share of the revenue, the right to hold the land is the result of the grant and forms part of it and is therefore resumable. It is further argued on behalf of the defendant No. 1 that there could be no occupancy rights in a village held as Saranjam, where there is a succession of life-estates and that the word resumption in case of a Saranjam cannot have the same meaning as in the case of an Inam.
14. In addition to the answer on the merits, it is contended that the suit is barred by the Revenue Jurisdiction Act and the Pensions Act.
15. I shall first deal with the merits of the plaintiff's claim, as it seems to me that if he can succeed on the merits the Revenue Jurisdiction Act and the Pensions Act will not afford any answer to his claim.
16. Now it is well established that in the case of Saranjam or Jaghir (the terms being convertible) the grant is ordinarily of the royal share of the revenue and not of the soil and that the burden of proving that in any particular case it is a grant of the soil lies upon the party alleging it: see Krishnarav Ganesh v. Rangrav (1867) 4 B.H.C.R. (A.C.J.) 1 ; Ramchandra v. Venkatrao I.L.R. (1882) Bom. 598; and Ramkrishnarao v. Nanarao (1903) 5 Bom. L.R. 983. Mr. Coyaji for the respondents does not contest this position and is unable to refer to any document or terms of the grant which would show that the grant was of the soil and not merely of the royal share of the land revenue.
17. In this case the history of the Saranjam, to which I shall refer more particularly later, shows that the grant was made to the family before the British Government acquired the territories and that during the last century before Pandurangrao's death on all occasions of fresh successions the grant was continued by the British Government on payment of the usual Nazrana. On not a single occasion does the grant appear to have been made in terms which would indicate a grant of the soil or which would indicate that the grant had any relation to the occupation of the lands. The grantees were in prior occupation of the lands and they were continued in possession of the lands without any liability to pay the royal share of the revenue.
18. It is also a settled rule in this Presidency that in the case of an Inam, where the grant is merely of the royal share of the revenue and not of the soil resumption means only the discontinuance of exemption from payment of land revenue and that interference with actual occupation is not allowable. The Government Resolution of 1854 is clear on the point (see Exhibit 260). This Court has consistently taken the same view as to Inams: see Vishnu Trirnbak v. Tatia alias Vasudev Pant (1863) 1 B.H.C.R. 22 and Balwant Ramchandra v. The Secretary of State for India in Council (1905) 7 Bom. L.R. 497 : I.L.R. 29 Bom. 480.
19. Before dealing with the question as to how far the same meaning should be put upon the word resumption in the case of a Jaghir or Saranjam when the grant is not of the soil, but of the royal share of the land revenue, it will be convenient to deal with the view taken by the lower Court on the evidence and the history of this particular Saranjam.
20. The learned District Judge has stated his conclusion in para 18 of his judgment as follows:-' Obviously what is to be resumed is that which is given and in the case of a Saranjam grant of land revenue it is a grant of the land revenue coupled with the right to make the best possible use of unoccupied land and presumably the whole of this can be resumed.' Further on in para 20 of the judgment after adverting to the circumstances of the present grant and the incidents of the tenure he expresses the opinion that the grant was not merely a grant of the royal share of the revenue but included the right to hold the land and that the lands are therefore resumable with the Saranjam.
21. Now first as to the circumstances of this grant. The history of this grant is set forth in the report of the Assistant Inam Commissioner and the decision of the Inam Commissioner (Exhibit 34 particularly paragraphs 27 and 28). The learned District Judge has placed reliance upon the fact that in 1761-62 the Peshva had taken back the Jaghir with the possession of the lands from Balwantrao, had made a grant of this Saranjam to Yogeeram and Bhaskarrao and had given it back to Balwantrao in 1872. We do not know the circumstances under which this temporary change of the grant was made nor do we know what exactly happened at the time. I consider it wholly unsafe to draw from this circumstance the inference that the original grant by the Peshva was not merely of the land revenue but of the soil. The Inam Commissioner in para 30 of his decision observes as follows:-
It appears clear, therefore, that the original grant of A.D. 1761-62 was neither revoked nor altered by the Peshva and that the villages claimed were made over and continued in lieu of the Saranjam of Its. 12,000 per annum sanctioned by the Peshva. The allusion to them in accounts consequently in any other terms than as Saranjam is erroneous.
22. Besides it does not seem to me very material to inquire as to what the Peshva thought of his grant to Balwantrao. He may have treated the right to hold the land as resumable with the Saranjam or not. The question is what happened when the British Government acquired the territory and whether they confirmed the Saranjam as an ordinary Saranjam or Saranjam involving a grant of the soil. Then for some years there was disturbance of possession by Tippoo Sultan. But Mr. Coyaji has fairly conceded that such disturbance, which would be the result of invasion and force, would not indicate anything in favour of the view taken by the learned Judge.
23. It appears from para 28 of the Inam Commissioner's Report and from other papers in the case that in 1818, 1836, 1839 and 1842 and 1863 fresh successions were recognized on payment of the usual Nazrana. There was nothing in this circumstance to show that the grant had any relation to possession of land as distinguished from the royal share of the land revenue. There is nothing to show that the Nazrana was calculated on any footing other than that representing the royal share of the land revenue. Besides it does not seem to me at all reasonable to base such an inference upon the fixing of the amount of the Nazrana. When the main question is one of recognizing the succession or of making a fresh grant, the question of Nazrana is a subordinate question; it is dealt with by the Government, there is apparently nothing like a settlement between the parties of the basis upon which the calculation is to be made and there is no disturbance of actual possession. Further it is not contended in this case that these grants on various occasions have been grants of the soil. Under these circumstances I do not see any reason to think that the papers relating to the Nazrana can show any relation of the grants to the occupation of the lands as distinguished from the right to the royal share of the revenue. The evidence of the witness Bhaskarrao (Exhibit 232) which is relied upon by the learned Judge does not, in my opinion, support the theory that the amount of the Nazrana was calculated on any basis representing anything more than the amount of the royal share of the land revenue. The point was never put to him specifically on behalf of the respondents and the general effect of his evidence taken as a whole is against any such theory.
24. The next circumstance relied upon is the fact that in 1842 on the report of the then Collector of Dharwar, the Government for the better management of the Jaghir owing to disputes between Pandurangrao and Ramchandrarao accepted the recommendation of the Collector that the management be handed over to Appajirao the representative of the senior branch of the family. This, it is suggested, involved a disturbance of the actual possession of Pandurangrao. But admittedly it was for the purposes of management only and not for the assertion or alteration pf any right; and it was clearly understood that the arrangement was only sanctioned as a temporary measure in the hope that parties would soon see that it was for their interest to accommodate their differences. (See Exhibits 275 and 270). I am unable to hold that this is in any way inconsistent with the occupancy rights of the Saranjamdar.
25. Exhibit 242 which was put in by the claimants before the Inam Commissioner does not help the respondents in any way. There was no occasion then to differentiate between their rights of occupation and the royal share of the land revenue. The claimants had both the rights and they were then putting forward a claim to the grant as a Sarva Inam, i.e., an absolute grant.
26. I have now dealt with all the evidence relied upon by the lower Court and by Mr. Coyaji in the argument before us, in connection with the nature and circumstances of the particular grant. I am unable to agree with the lower Court on this point. The net result of the examination of the evidence, in my opinion, clearly is that there is nothing to show that the original grant by the Peshva was of the soil and not merely of the royal share of the land revenue or that it had any relation to the occupation of lands by Balwantrao, that when the British Government first confirmed the grants in favour of the descendants of Balwantrao, the original grantee from the Peshva, they were in occupation of the lands, that the grants were as usual grants of the royal share of the land revenue and had no relation to the possession of the lands and that the right to resume the lands at the time of the resumption and regrant of the Saranjam was never put forward by the Government during the last century. Apparently it is put forward on the occasion of the resumption on Pandurangrao's death and is asserted for the first time in 1904 when there was a regrant in favour of Vithalrao; and it is not suggested that the record of the case discloses any prior instance of the assertion of such a right.
27. It remains now to deal with the view taken by the learned District Judge that ' in the case of a Saranjam grant of land revenue it is a grant of the land revenue coupled with the right to make the best possible use of the land and presumably the whole of this can be resumed.' I am unable to agree with this view and in my opinion it does not derive any support either from the statutory provisions relating to Saranjams or from the decided cases bearing on the point. On the contrary the combined result of the Acts and decided cases is distinctly in favour of the plaintiff's contention.
28. First as to the statutory provisions, the law relating to Saranjams now in force in the territories with which we are concerned is to be found in Act XI of 1852 and the rules made by the Government in 1898 under Rule 10 of Schedule B of the Act of 1852. Prior to 1852, there was Regulation XVII of 1827-particularly Clause 38, made applicable to the territories with which we are concerned by Eegulations XXIX of 1827 and VII of 1830. There was Regulation VI of 1833 clauso 3 relating to the 'general rules.' referred to in Clause 38 of Regulation XVII of 1827. These provisions have been discussed in some of the cases to which I shall have to refer hereafter and I do not consider it necessary to go over the same ground again. I shall, however, deal with the provisions with reference to the arguments that have been addressed to us in this case. With reference to Clause 38 of Regulation XVII of 1827 read with appendix B, Mr. Coyaji has argued that the words 'resumption' and 'assessment' used with reference to Jaghir cannot mean the same thing. They must have different meanings, which is possible only if resumption has relation to possession of lands and not merely to the discontinuance of exemption from the royal share of the land revenue or assessment. The form of notice of the resumption of a Jaghir (appendix. B) as compared with the form of notice of assessment (appendix D) has been relied upon in support of this argument. In the first place it seems to me that this argument ignores the obvious fact that the language of Clause 38 and of the form appendix B is applicable to all Jaghirs, i.e., to Jaghirs involving grant of the soil as well as to Jaghirs involving grants of the royal share of the land revenue and the clause is not worded with due advertence to the difference between the two classes of Jaghirs. Now the language is quite appropriate to Jaghirs, where there is a grant of the soil. But where there is a grant only of the royal share of the land revenue that language is not quite appropriate; and in such a case there may be no practical difference between resumption and levy of full assessment. The use of two different words is sufficiently justified by the fact that in certain Jaghirs they would mean two distinct things. But there is no rule of construction which compels the inference that the Legislature meant that in every case of Jaghir 'resumption' and 'assessment' must in the result mean two different things. That would be practically doing away with the substantial difference between the two classes of Jaghirs or Saranjams. Such an extreme view has not been taken in any of the reported cases and, in my opinion, this contention is subject to the infirmity that it establishes too much. Secondly, this clause is no longer in force and we are really concerned with Act XI of 1852 and the rules thereunder. Section 1 of Act XI of 1852 provides that Chapters IX and X of Regulation VII of 1827, which include the said Clause 38 do not apply to any of the Districts of the Bombay Presidency which were not brought under the general regulations of Government by Regulation XXVIII of 1827 of the Bombay Code. Now the territory with which we are concerned was brought under the general regulations by Regulation XXIX of 1827 and VII of 1830 and not by Regulation XXVIII of 1827.
29. Under Act XI of 1852, Schedule A, Rule 1 the duty of the Inam Commissioner extended to the investigation of titles of persons holding or claiming against Government the possession or enjoyment of Inams or Jaghirs: and the decisions of the Inam Commissioner under Rule 9 of the same Schedule would relate to 'the continuance, resumption or partial assessment of the land.' Here the argument urged on behalf of the respondents with reference to 'resumption' and 'assessment' in Clause 38 of Regulation XVII of 1827 would apply equally. But I have already pointed out that at least so far as Inams are concerned the word resumption has a well defined meaning under Act XI of 1852 both according to the Government Resolution of 1854 and the decided cases; and there is no valid reason to suppose that it has any different meaning when applied to Jaghirs. Under Rule 10 of Schedule B of the Act of 1852 it is provided that the Rules (under the Schedule) shall not be necessarily applicable to Jaghirs and Saranjams the titles and continuance of which shall be determined as heretofore under such rules as Government may find it necessary to issue from time to time. Now prior to 1898 apparently there were no rules except those mentioned in Col. Etheridge's Narrative of the Bombay Inam Commission (Government Selection No. CXXXII, N. S.). Referring to the rules framed under Rule 10 of Schedule B Mr. Coyaji relies upon Rule 5 which provides that Saranjam shall be held as a life-estate and that it shall be formally resumed on the death of the holder and shall be made over to the next holder as a fresh grant. I do not think that this rule touches the present point. The question is not what is the extent of the interest of the Saranjamdar in the Saranjam but whether the right to hold the lands forms part of the Saranjam and whether on the resumption of the Saranjam that particular right to hold the land comes to an end.
30. I have not so far referred to Act II of 1863 and I do not think that it has any bearing on the present point as under Section 1, Clause (2) among other things lands granted or held as Jaghirs or Saranjams have been excluded from the operation of the Act.
31. Mr. Coyaji has argued that there is no scope in the case of successive life tenants like Saranjamdars to acquire any right to possession of land apart from the Saranjam. I am unable to accept this argument. I do not see any reason why it should not be possible for a Saranjamdar to create any occupancy right in respect of waste lands in his Saranjam, which is a grant only of the royal share of the land revenue, in favour of a third party or of himself. No authority is cited in favour of the view that no occupancy rights are possible in a Saranjam estate involving a grant of the royal share of land revenue. It is a position which I cannot accept in the absence of any authority.
32. It was further urged that in the case of the Hebli Saranjam there could not be any occupancy rights, as there was no survey settlement. But the right to occupy the land can exist in villages where no survey settlement is introduced and in such cases the royal share of the land revenue would have to be determined with reference to the rate obtaining in the village in which the land is situated (see Exhibit 260, para 5).
33. As to the decided cases, it seems to me that they are in favour of the view that the right to the possession of the land in the case of the Saranjam grant of the royal share of the land revenue does not form part of the Saranjam and is independent of it. In the case of Ganpatrav Trimbak Patwardhan v. Ganesh Baji Bhat I.L.R. (1885) Bom. 112 Sargent C.J. and Birdwood J. held in dealing with a Saranjam, after referring to the rule as to Inams, that no legislative enactment or Government Resolution had been cited in support of there being any difference between the tenures as to the effect of resumption by Government. The learned Judges further on refer to the observation in Ramchandra v. Venkatrao I.L.R. (1882) Bom. 6598 and hold that the Saranjamdar may acquire occupancy rights, which, as has been shown, remain unaffected by the resumption of the Saranjam except as to the assessment thenceforth payable to Government. This decision is binding on us unless it can be treated as overruled by any Privy Council decision. The learned District Judge has treated this decision as not, binding upon him on two grounds, neither of which appears to me to be sound. I see no reason to suppose that the observation as to the effect of resumption by Government was made without due advertence to Regulation XVII of 1827 which has been referred to in both the cases (Vishnu Trimbak v. Tatia (1863) 1 B.H.C.R. 22 and Ramchandra v. Venkatrao I.L.R. (1882) Bom. 598. These cases are referred to and relied upon by the learned Judges in Ganpatrao's case. I do not agree with the learned District Judge that the observation as to the occupancy rights being acquired by the Saranjamdars is an obiter dictum. The learned Judges set forth the contention on the point and dealt with it: it was for them to consider whether to decide it or not. As they have decided it, it is a part of their decision. It was open to them to base their decision on an additional and independent ground.
34. This view has been re-affirmed by Sargent C.J. in Hari Sadashiv v. Shaik Ajmudin I.L.R. (1886) Bom. 235. This decision has been treated by the learned District Judge as not binding on the authority of the decision of the Privy Council in Shekh Sultan Sani v Shekh Ajmodin I.L.R. (1892) Bom. 431.
35. It is necessary to examine this decision with a view to see whether it touches the point decided in Hari Sadashiv's case. In the case before the Privy Council the principal question was whether the Saranjam and Inams claimed as part of the inheritance and property which had belonged to the deceased Sheikh Khan Mahomad were or were not political tenures to which the succession could be dealt with by the Government only, at its discretion, apart from any jurisdiction of the civil Courts. There was no point in that case that the particular grant being only of the royal share of the land revenue, the right to the possession of the land did not form part of the Saranjam and that such right was not therefore resumable and regrantable by the Government. No such point having been raised, it was not considered and could not be treated as decided in a manner inconsistent with the decision in Hari Sadashiv's case. Though it is not necessary for the purposes of this case to express any final opinion, it seems from the terms of the grant firstly in the agreement of the 3rd July 1820 with Sheikh Mira II and secondly in the document evidencing the continuation of the Saranjam in 1827 to Shekh Khan Mahomed II on the death of his father Shekh Mira II, that possession of the lands was given to the grantee on each occasion as part of the grant: at any rate it is not clear that the grant in that case was only of the royal share of the land revenue without any reference to the possession of lands. In a recent case this Court observed with reference to this Privy Council case that a reference to the report of the proceedings in that litigation will show that the lands in suit were held not to be the private heritable and divisible property of the defendants' lessor but to be held on political tenure as part of the Saranjam: Trimbak Ramchandra v. Shekh Gulam Zilani I.L.R. (1909) Bom. 329.
36. Thus it may be that the terms of the particular grant in the Privy Council case were not before the Court in Hari Sadashiv's case which related to the same Saranjam; and it is possible that the grant was then presumed, as it would now appear not correctly, to be a grant of the royal share of the land revenue. But the rule as to the right of the Saranjamdar to acquire occupancy rights when the Saranjam grant relates only to the royal share of the land revenue cannot, in my opinion, be treated as being inconsistent with the decision of their Lordships of the Privy Council in Shekh Sultan Sani's ease.
37. There is no other decision of the Privy Council or of this Court which is inconsistent with the view taken by Sargent C.J. in Ganpatrao's case and Hari Sadashiv's case.
38. On the contrary in the case relating to an Inam both cases (Ramchandra's case and Ganpatrao's case) have been referred to with approval on this point: Rajya v. Balkrishna I.L.R. (1905) Bom. 415, Mr. Justice Batty in Balvant Ramchandra's case I.L.R. (1905) Bom. 480 refers to the view of Sargent C.J. with approval.
39. Mr. Coyaji relied upon the case of Jamna Sani v. Lakshmanrao (1881) P.J. 6; but in my opinion the case does not help him. It relates to the Hebli estate and the grant by a Saranjamday was claimed by the plaintiff' as an absolute grant as being good beyond the life-time of the grantor, which the Saran-jamdar could not make. The judgment shows that the only question considered and decided was whether a Saranjamdar would make an alienation which would be good beyond his life-time.
40. It seems to me on an examination of these decisions that the view taken by Sir Charles Sargent C.J. in Ganpatrao's case has been accepted in this Presidency and must be given effect to.
41. I am therefore unable to accept the opinion of the learned District Judge that in the case of a Saranjam grant of land revenue it is a grant of the land revenue coupled with the right to make the best possible use of unoccupied land and that presumably the whole of it can be resumed. I hold that the Government can resume what they granted as Saranjam, viz., the royal share of the land revenue and that the right to the occupation of the land subject of course to the payment of the full assessment can and does survive the resumption of the Saranjam. The plaintiff's occupation of the lands in suit cannot be disturbed in consequence of the resumption on Pan-durangrao's death and regrant of the Saranjam to Vithalrao.
42. It remains now to deal with the two objections based on the Revenue Jurisdiction Act and the Pensions Act.
43. The portion of Section 4 of the Revenue Jurisdiction Act relevant to this case provides that no civil Court shall exercise jurisdiction as to any claim against Government relating to lands granted or held as Saranjam. It is contended for the respondents that the plaintiff's claim is barred by this provision. It would no doubt be barred if the right to the occupation of the lands in suit formed part of the Saranjam. But in the view I take of the case it is clear that the lands are neither granted nor held as Saranjam. As the Saranjam grant is limited to the royal share of the land revenue and the occupation of the lands does not form part of the Saranjam, the suit is not barred. The civil Court can well consider the plaintiff's claim to possession subject of course to his paying the assessment or the royal share of the land revenue according to the prevailing rates in the villages. I have already stated that the plaintiff's claim so far as it seeks to' recover the Saranjam as a Sarva Inam is clearly barred by this provision. But his claim for possession stands on a different footing. Mr. Coyaji has relied upon the case of Appaji v. The Secretary of State for India I.L.R. 1904) Bom. 435, in support of his argument on this point. This case was decided under the first paragraph of Clause (a) of Section 4 and the judgment shows that the decision is based upon the inference to be drawn from the evidence in the case that the grant had relation to the occupation of lands and was not confined merely to an exemption from assessment. The plaintiff's vendor in that case was put in actual possession of the land as a reward for his service. I do not think that the decision affords any basis for holding the present plaintiff's claim barred under the provision of Section 4 to which I have already referred.
44. It was suggested by Mr. Kelkar that the provisions of the Revenue Jurisdiction Act were bad as offending against the provisions of the Government of India Act of 1858 (21 & 22 Vic. c. 106). He relied upon the case of Secretary of State v. Moment (1912) 15 Bom. L.R. 27. The question raised in the general form does not arise in this case. Mr. Coyaji has, however, clearly pointed out that so far as the claims against Government relating to Saranjams are concerned the civil Courts' jurisdiction was barred long prior to 1858. It will be enough to refer to the Regulations applicable to the territories with which we are concerned. Regulation XXIX of 1827, Section 6, provides among other things that no claims against Government on account of Jaghirs shall be cognizable by the civil Courts; and this provision was extended to the District of Dharwar by Regulation VII of 1330, Section 2. By Act X of 1876 these provisions were repealed and Section 4(a) so far as it relates to Saranjam or Jaghir was enacted. There is a slight change in the phraseology. But I think the expression 'claim against Government relating to lands granted or held as Saranjam' in Act X of 1876 bears substantially the same meaning as the expression 'claims against Government on account of Jaghir' in the Regulations.
45. The objection based on Section 4 of the Pensions Act is clearly untenable. This point was not taken in the written statement and the lower Court did not allow it to be raised at a late stage. We have, however, heard Mr. Coyaji on this point; and it is enough to say that the claim for possession of lands is not within the meaning of Section 4 of the Pensions Act.
46. Under Section 4 of Act XXIII of 1871 no suit relating to any pension or grant of money or land revenue conferred by the British or any former Government can be entertained by the civil Courts. The claim for the possession of lands subject to the payment of the royal share of the land revenue does not relate to pension or grant of money or land revenue conferred by the British or any former Government. This point has been fully dealt with by Mr. Justice Batty in Balvant Ramchandra's case I.L.R. (1905) Bom. 480 and the judgment in that case contains all the reasons for the conclusion that such a claim is not barred by a. 4 of the Pensions Act. Mr. Coyaji has relied upon Ramchandra v. Venkatrao I.L.R. (1882) Bom. 598 and Dattajirao v. Nilkantrao I.L.R. (1914) Bom. 352, in support of his argument. Ramchandra's case has been fully discussed by Mr. Justice Batty in the judgment to which I have just referred and I desire to express ray agreement with the grounds upon which the case is distinguished and not accepted as an authority for the view that a claim for possession of lands falls within the scope of Section 4 of the Pensions Act. Dattajirao's case was decided on its special facts and does not support the respondents' contention.
47. No other objection to the plaintiff's claim for possession of the property in suit has been urged on behalf of the respondents.
48. There has been no argument before us on the points contained in issues Nos. 4, 5, 6, 7 and 8 in the lower Court and they have not been pressed in appeal.
49. Mr. Kelkar suggested that the grant of the Saranjam to Vithalrao in the life-time of his father Chidambarrao was not valid. But that is a matter which it is not open to the civil Courts to consider: Shekh Sultan Sani v. Shekh Ajmodin I.L.R. (1892) IndAp 50; and it is clear that in any event Chidambarrao and not the plaintiff could complain of it.
50. On these grounds I am of the opinion that the plaintiff's claim for possession of the property in suit should be allowed subject of course to the condition that he will be liable to pay the full assessment or royal share of the land revenue according to the prevailing rates in the village to the defendants or rather to defendant No. 2.
51. There is no reason why the plaintiff should not be allowed mesne profits for three years prior to the date of the suit and future mesne profits. Of course in calculating the mesne profits due allowance must be made in favour of the defendants for the royal share of the land revenue.
52. As to costs, it is true that the plaintiff put forward an untenable claim to the Saranjam on the footing that it was a Sarva Inam. But the ground upon which he succeeds here was substantially the basis of his claim in the lower Court: and as he has succeeded in his main contention, I think he is entitled to his costs in both the Courts.
53. I would, therefore, reverse the decree of the lower Court and allow the plaintiff's claim for possession subject to his liability to pay the royal share of the land revenue. I would further allow him mesne profits for three years prior to the date of the suit and from the date of the suit to the date of the delivery of possession or the expiration of three years from this date, whichever event first occurs, the mesne profits to be determined by the lower Court. The rest of the plaintiff's claim is rejected.
54. The plaintiff must have his costs throughout.
55. I desire to acknowledge the assistance, which we have received, from the very lucid and able arguments addressed to us in this case.
Batchelor, J.
56. I entirely agree both with the conclusion and with the reasons for it.