Divatia, J.
1. These four companion appeals have been filed by the Secretary of State for India in Council, who was the principal defendant in each suit, and the original plaintiff is the principal respondent in each appeal. The plaintiff is the khot or lessee to whose ancestor the village of Mahul, situated in Trombay in the island of Salsette, forming part of the district of Thana, had been granted by the British Government, part in inam and the remainder in permanent khoti, i. e., lease subject to certain conditions stated in a sanad or a kowl dated April 20, 1831. It is this document which is the most important one in all the appeals, the decision of which mainly turns on the construction of its terms. Of these four appeals, First Appeals Nos. 137 and 139 of 1927 arise from two suits filed in 1922 by the plaintiff for a declaration that he was entitled to take royalty in respect of removal of earth, stone, murum and cutting of teak trees in certain lands of the village in virtue of his aforesaid sanad, and for an order on the defendants to pay the amount of royalty found due on account. Defendant No. 1 in each of the two suits is the occupant of the land, defendant No. 2 is the Port Trust of Bombay to whom the materials are sold, and defendant No. 3 is the Secretary of State for India in Council representing the Government which has denied the plaintiff's right to claim the royalty. First Appeal No. 138 of 1927 arises from a suit filed in 1923 by the same plaintiff for a declaration that the levy of non-agricultural assessment by the Government on certain buildings erected by the plaintiff on his land in the said village was illegal and for a refund of the same. Lastly, First Appeal No. 104 of 1925 arises in a suit by the said plaintiff in 1922 to recover possession from the Government of a part of the lands forming the foreshore of the said village which is surrounded on three sides by the sea and for the alternative relief of compensation. In all these suits the plaintiff having succeeded in the lower Court, the appeals have been preferred on behalf of the Government.
2. The plaintiff's case, in substance, is this. He says that under the grant of 1831, he is entitled to collect and take all the revenues of the village from various sources except the Abkari, subject to the payment of a fixed amount to the Government, that the grant is of the village itself and carries with it all the rights which the Government had in the village, which include the aforesaid right to royalty for minerals and teak trees, exemption from the levy of non-agricultural assessment for buildings erected by him on the land and the right to the foreshore, i. e., lands lying between high and low water-marks at spring tides. With regard to the latter right he relies on the revenue survey of 1886 when the whole of the foreshore comprising about seven hundred and eighty-four acres and assessed at Rs. 735 was given survey No. 72 and entered in the plaintiff's name. The plaintiff also relies on his enjoyment of all these rights till within twelve years before the dates of these suits. In the alternative, he relies on his prescriptive enjoyment for sixty years.
3. The defendant (and by defendant I mean the principal defendant, i. e., Government) disputes this claim on the ground that the grant was not of any proprietary right but was only limited to a lease of the agricultural revenue, that Government granted only those rights which are expressly mentioned in the kowl, and all other rights including non-agricultural and sub-soil rights being reserved, they did not pass under the grant. With regard to acts of enjoyment by the plaintiff, the defendant says that even if any are found, they do not constitute estoppel against the Government, nor does the period of enjoyment extend to the prescriptive period of sixty years. On the other hand, it was a mistake on the part of the Government officers to allow this enjoyment and to enter the foreshore in the survey as the plaintiff's property, and that the mistake was later on corrected by the Government.
4. Various issues were framed by the lower Court on these pleadings and all the material issues have been found in the plaintiff's favour. The learned Judge has found that under the kowl the plaintiff is entitled to claim the royalty for earth, stone and teak trees, that all land revenue of the lands granted in khoti was to enure for the benefit of the khot including the enhanced non-agricultural assessment, and that the foreshore lands in dispute were included in the grant and were also in the plaintiff's possession and enjoyment within twelve years before the suit. At the same time he has held that if these rights did not exist under the kowl, the plaintiff has not acquired them by estoppel or adverse possession against the Government.
5. As I have stated above, the decision in all these appeals turns on the construction of the kowl, and it is on this point that arguments of counsel on both sides have been mostly directed. We will, therefore, at once turn to this question : What is the nature and purpose of this grant and what are the rights and liabilities created thereunder?
6. In answering this question, it is necessary to have a look at the nature of the revenue system prevailing at the date of the grant. The island of Salsette came under the British rule in 1774 from the Peshvas who had only about forty years back wrested it from the Portuguese. As a result of an enquiry into the introduction of a regular system of revenue administration into the island, the Bombay Government suggested certain modifications in the then prevailing system, and on approval of the same by the Court of Directors of the East India Company in 1799, Bombay Regulation I of 1808 was passed which is both a history as well as an enactment pertaining to the revenues derived from various groups of villages in the island. It appears that the Portuguese Government used to give the revenues of the village on a farm or lease to the highest bidder, but the actual occupant of the land had no permanent rights in these holdings. The revenues were derived from land as well as other sources including stones, excavated earth, capitation tax on fishermen, Mot-hurfa, i. e., tax on professions, etc. (Articles 6, 11 and 15). The British Government modified this system by giving to the old occupants of the land certain hereditary rights in their lands so long as they paid the fixed assessment measured in most cases in kind, and the farming system was also modified by giving grants of villages to various persons either for a limited term or in perpetuity under which, in consideration of paying a fixed lump sum to the Government, the grantee enjoyed all the rights of revenue, agricultural as well as non-agricultural, which the Government had, except those that were expressly excluded under the grant and one of the general exceptions was the Abkari revenue. That the Government had such non-agricultural sources of revenue seems to be clear from Arts. 50 and 60 of the said Regulation which mention Mot-hurfa tax as, well as taxes on stone quarries, cutting of wood, capitation tax, etc. If the grant was a rent-free grant in perpetuity with the right of transfer, it was known as inam; if it was a grant either for a fixed term or in perpetuity with the condition to pay a fixed amount as rent to the Government, it was called khoti or a lease and the lease-holder was called a khot. The term ' khot' was a general expression used to connote a farmer of revenue and is to be distinguished from the term ' khot' as used in reference to persons holding a special tenure known as khoti tenure in the Ratnagiri district governed by their own usage and for which a special Act was passed in 1880 known as the Khoti Settlement Act. The purpose of such grants was to encourage the cultivation and general development of these villages through the lease-holders whose interest it was to derive more revenue by means of extensive cultivation and increasing the population of the villages so as to leave them as much profit as possible after paying the fixed amount which they had to pay to the Government. This was the system in force when the grant in question was made in 1831, and it appears that such grants were made in the first half of the nineteenth century in respect of a large number of villages in Salsette with more or less variation of terms.
7. With these general observations, we now turn to the grant in suit. It is in the Marathi language with a free rendering of it in the English language appended to it. The learned Judge has in his judgment in First Appeal No. 137 of 1927 rendered a literal translation of his own, but there is in evidence an official translation of the Marathi document which is Exh. 85, and I will adopt that translation which is as follows:
Kowl (lease) granted by Lestock Robert Reid Saheb, Esquire, Bahadur, Principal Collector, Zilla (District) Konkan, to Azam Framji Pestonji Parsi, resident of Fort, Bombay, in the year Surusun one thousand two hundred and thirty one (corresponding with the) English year 1831-32, Shake 1753, the cyclical year being named Khar.
An order was issued from Bombay on 14th January 1831 to give you the villages of Mouje Mahool and Marowlee Turf Trombay, Taluka Salsette in farm together with a free grant of the arable uncultivated ('osik') land in the above two villages in compliance with which these two villages are now given to you. Out of the same the Sunnad of Mouje Marowlee has been separately made out (and given). This is the Sunnad of Mouje Mahool arable uncultivated ('osik') land having been given to you in Inam and the remainder of the ('Darobasta')(entire) village having been given in farm.
8. Boundaries of Mouje Mahool :
1 On the east the village of Nanale 1 On the West the arm of the sea which
near Kowlia Hill runs towards Sion.
1 On the South the sea. 1 On the North the boundaries of two
villages namely Anik and Dewnur
on the Hill.
2 2
________________________________________
4
The above village is given to you under a Tharav (agreement) without the Abkaree (revenue relating to Excise Department) from the current year 1830-31, which Tharav is as under:
1. The arable uncultivated lands in the said Inam village yield Mooras 24, Faras 2 Paili Dhemp, the assessment on which will be (in kind) Mooras 16, Faras 1, Paili of Batty which at the commutation rate of 20 Rupees a Moora amounts to Rs. 321-88. This is given to you in Inam : and shall continue to be enjoyed by you and your heirs for ever. If you or your heirs shall at any time sell this Inam to any one else, the Government will make you pay a Nuzzarana of 100 Rupees for every 100 Rupees on the total amount of revenue of Inam to be taken (on that occasion by Government on the assessment of Inam).
Description of the village given (in farm) is as follows:
1. The revenue of the village without the Abkaree (revenue) and the particulars-of the lands and people and houses in the village are as follows:
__________________________________________________________________________________________
Net Dhemp Mooras, Deduct (in respect of) Mooras in respect Salt Batty ground
uncultivated land. of land under in Bighas.
cultivation.
178 20 3 44 5 134 14 3 175 4
___________________________________________________________________________________________
___________________________________________________________________________________________
Deduct unculti- The remaining land Palm trees in (?) Not yielding Yielding produce
vated land. under cultivation number. produce in in number.
in Bighas, number.
9 3 1 166 1 4 438 181 257
___________________________________________________________________________________________
___________________________________________________________________________________________
Houses Cattle Total number
in number, sheds in of houses Population. Men. Women. Children.
number. and sheds.
129 19 148 477 209 209 59
The amount of revenue according to the Jamabandi (settlement) of 129-30 (? 1829-30) Rs.
506-8 Revenue to be received in cash (for the following) items-
74 8 0 To be paid in respect of palm 2,020 8 86 Assessment in cash for the
trees yielding produce, in entire land under cultiva-
number for which the total re- tion.
venue in rupees (is Rs. 74-8-0).
20 8 0 In respect of trees 41 1,785 12 57 Revenue in res-
in number situated pect of Sweet
in the low land at land for paddy
annas eight per tree. in Mudas (as
follows:-)
10 0 0 In respect of palm 87 20 1 As per Dhep
trees 40 in number practice.
situate on the Hills 1 12 As per practice
at the rate of annas mentioned in
four per tree. Kaulnama
(lease).
44 0 0 In respect of palm
trees 176 in number
held tinder Shilotri
right at the rate of ________
annas four (per tree). 89 7 2 Amount at the
________ rate of Rs. 20
74 8 0 per moora.
(Rs. 1,785 as. 12
6 0 0 (?) Lasar in respect of grass. rees 57)
234 12 29 Revenue in res-
7 8 0 Moho-tarfa tax. pect of saltland
6 0 0 In respect of two for paddy Moo-
shoemakers at 3 ru- ras 14, Faras
pees each. 16 3/5, Pailis 3, in
1 8 0 In respect of oil-mill. all at 16 rupees
In all (Rs. 7-8-0). per Moora
418 8 0 Body tax (?) in respect of (comes to
fishermen 93 in number at 4 Rs. 234 as. 12,
rupees per man (?). rees 29).
________ __________
506 8 0 2,020 8 86
_______________________________________________________
:
2,727 0 86
Out of the same the amount to be deducted is as follows :
Rs. as. r. Rs. as. r. Rs. as. r.
6 0 0 In respect of grass. 4 12 20 Shri Chedoba, Vahi- 9 8 40 Hajrat Pirsaheb,
1 8 0 In respect of village watdar Nagu Janaji Vahiwatdar
expense to be paid Patil. Sheikh Dawood
to vahiwatdar 21 8 0 Nagu Janaji Patil. Parkar.
Patil. 13 0 80 Vitho Kopri Patil. 10 4 20 Radkia Bal
11 8 80 To Soyar Maya Patil 5 12 20 Jao Buttia Mhatra. Mhatra.
5 12 20 Rama Babaji Mha- 4 12 20 Keroo Bhikaji Mhatra. 5 12 20 Lakhman Vi-
tra. 8 8 0 Dhaklya Madhavi. thoji.
5 12 20 Dadoo Dhurman 3 0 0 Raghu Mankoji 8 8 0 Zoojia Ma-
Mhatra. Mukadam. dhavi.
8 0 0 Kootur Mudhavi. 4 8 0 Budhya Mudhavi. 13 0 0 Hira Mudhavi.
5 0 0 Dookal Mudhavi. 4 8 0 Rama Pillacha
4 8 0 Hasia Dhaklia Mu- Madhavee.
dhavi.
_______ _______ _______
48 4 20 66 0 40 51 8 80
__________________________________________________________________________
:
166 0 40
The remaining sum is settled at Rs. 2,361-0-46 two thousand three hundred and sixty-one, and forty-six rees. This amount is (continued) to be paid by you every year, into the Collector's Treasury at Thana according to Government practice before the end of each (Tijory) official year or as soon as the year expires. If in any year the Collector shall think it necessary to require from you security for the payment of the above sum, you must give it and failing it to give security satisfactory to Government the income (revenue) of the village will be attached according to the Regulations.
2nd.-In the said village some lands are uncultivated and some trees are barren. And Government has rights over the said lands and trees and over the income thereof. Out of the same Government has retained some right mentioning the same in this Kowl (lease). Except that right the whole right has been granted to you. You should go on enjoying the same.
3rd.-The trees from which liquor juice has been extracted shall be counted after 40 years from the date of this Kowl (lease). And in case any more trees than the trees which have been mentioned in this Kowl (lease) and which have been assessed, be found in that count, the said trees will be assessed at the following rates and the amount thereof will be recovered (as an additional sum). Palm trees-
Palm trees yielding produce to be assessed at Palm trees not yieldingproduce.Rs. a. p. A. g.0 8 0 Taljani (trees) lying in the low 0 25land . . .0 4 0 Trees lying on the hillThere are no date trees in the aforesaid Mouje (village) but if there grow any in future the same will be assessed at rees 36 per tree.
The total amount of such assessment at the above rates shall be continued to be paid by you annually in addition to the aforesaid sum of Rs. 2,361-0-46.
4th.-You are not at liberty to cut down or destroy any palm or date trees without the sanction of the Collector and should it appear that trees usually drawn, have been relinquished with the intention of getting them at a smaller rate of assessment, Government is entitled to receive full assessment in respect of such number of trees which may have been drawn during any one year of your lease.
5th.-You must within the space of three years dig new wells two in number which Will be useful for building and agricultural purposes for the purpose of bringing the lands under cultivation in prosperous condition and for bringing the waste lands under cultivation; the wells must be built of Chunatn. After the expiry of three years the Government will take from you Rs. 500 (five hundred) for each well which will not be so dug (in existence). And as the village is granted to you under Khoti right for bringing it under prosperous condition and for producing the things of great value Government is entitled to take back the village without allowing deduction for expenses if you fail to act accordingly.
6th.-This Kowl (lease) will not prejudice the rights of any one who may have in respect of the land or in respect of any (other) item ' Bab ' in the said village, And it should be clearly noted that this Kowl will not enable you to exercise rights in respect of the items ('Kalams') over which the Government has no right at present. You will be entitled to exercise rights only in respect of those items ('Kalams ') over which the Government has right and which are given in writing in this Kowl (lease).
7th.-You should protect the Ryots in a good (sympathetic) way. You should behave with the Ryots in a respectable manner. And you should oppress them in no way whatever. In the village which has been given to you the rates of Government assessment which are in vogue should not be enhanced without the sanction of Government and all the practices which are prevalent should not be altered without the sanction of Government.
8th.-In the village allowances are being enjoyed by Devasthans, charitable institutions and Patil Mhatare and other village officers. The same should be continued in fact according to practice.
9th.-As to the lands which have been given to any particular persons on ' maphi istava ' (tenure before the grant of this lease) the same should be continued to them. You are to recover every year from the persons holding the 'maphi istava kowl' the Government dues in respect of the same as and when they are receivable in any year, and you are to pay the same to Government in addition to the amount of revenue which is fixed in the lease given to you.
10th.-If there be vahiwat (practice) for the people of other villages to draw toddy from palm and Shindi trees of the said villages and to carry the same to their respective villages, then you are not to cause obstruction to them in doing that.
11th.-You have become Khots of the aforesaid Mouje and you possess such authority to exercise powers and to carry on vahiwat there as is given to a Khot under Chapter VI of Regulation XVII of 18?7 or you will get such authority as may be hereafter conferred on Khots. If you should fail to carry out the terms of settlement you will be liable to punishment such as is now or may hereafter be provided for by law.
12th.-You are not to exercise criminal or civil powers (jurisdiction) unless the same are given to you and generally you have to act in accordance with the Regulations which have been in force now or which may hereafter come into force for Jamabandi (revenue) regarding criminal and civil administration and in accordance with the ancient custom of the country.
13th.-You are not authorized to issue orders in accordance with the rules and regulations which are in force and which may hereafter be enacted in connection with the manufactures of country liquor and sale of liquor, opium, poisonous substances, tobacco, snuff, Ganja and other (similar) articles and to receive income that may be derived from these items and to make any 'Bandobasta '(arrangement) in connection therewith. The whole of this item is reserved to Government.
14th.-Collector Saheb himself or any Government officer deputed by him may go to the village given to you and make enquiry as he thinks proper as regards new cultivation and improvements and as regards other matter and you are to render him such assistance as may be required in the said enquiry and you are to submit a report every year to the Collector or to the Mamlatdar of Taluka as regards the new cultivation and improvement which you may have made in the previous year.
15th.-If a dispute arises between you and Government with regard to any matter connected with this lease or with regard to the lands mentioned in this lease or as regards other matters and if that dispute is required to be taken for decision to any civil Court, the same shall first be got inquired into and decided by the Zilla Court,
16th.-In case you should fail to carry out the provisions of this lease for which no pecific penalty has been laid down in this lease and if you should act improperly, Government is competent to inflict punishment according to law, to cancel this lease and to take back the village without reimbursing you for expenses which you may incur in connection with the village.
17th.-The said village is granted to you, your heirs and descendants in permanent Khoti (tenure) agreeably to (the conditions laid down in) the clauses of the lease, and you may on completion of a period of 10 years from the date of this lease transfer this Khoti by sale or otherwise, provided that the vahiwat of the said village shall remain in the hands of one individual and that the Government will consider this property to be of the eldest member of the family irrespective of Takshim (shares) that there may be therein and you are prohibited from transferring the village to the person to whom it is to be transferred as stated above according to law unless proof of his respectability and means has been given to the satisfaction of Government. If you transfer this village to any person without Government Order, Government will be at liberty to cancel this lease and to take back the village into Government.
18th.-The said village has been given to you on Khoti (tenure) and even if the said village is transferred by you to any other person by sale, mortgage, gift, or otherwise, either before or after there is failure to carry out the clauses of this agreement, the Government's right to cancel this lease and to take back the village in case of failure will not be lost.
19th.-lf there be any mistake or misconduct on the part of your agent or servant in any matter, the said mistake or misconduct will be considered as being on your part and the punishment prescribed for the same will be inflicted on you.
20th.-In the event of the said village being taken back by Government, Government will recover the amount of Jamabandi (revenue) according to the custom of the country. If you have given lands, other items of revenue (to other persons) on agreement of payment of a lesser amount, then such settlement will not be recognized by Government.
21st.-This lease will be submitted for approval by the Honourable Court of Directors. If the clauses containing the conditions of this lease be not approved by them, you will be informed of the same within 3 years of the date of this lease and this lease will be cancelled and the village will be taken back by Government and the expenses which you may have incurred for cultivation and improvement in connection with the village will be made good to you.
You are to carry on vahiwat in accordance with the (twenty-one) clauses which have been fixed and set out.
7th Moon of the month of Jilkad.
The lunar date the 9th of First Vaishakh Sud (corresponding with the English date the 20th of April in the year 1831).
Appaji Raghunath Shringarpure
(my own handwriting)
(In English)
L. Rule Reid,
Principal Collector.
8. It would appear from the preamble that two villages Mahul and Marawli Turf had been granted to the plaintiff's ancestor. We are not concerned with Marawli in these suits and this document relates to Mahul only. In the preamble it is stated to be a grant of arable uncultivated land having been given in inam and the remainder of the village having been given in farm (khoti). The vernacular expression used for ' arable uncultivated land ' is (sic)means ' under cultivation or fit for cultivation ' and uncultivated and fallow land ' (vide Molesworth's Dictionary). So that this expression means rice land once cultivated but subsequently given up or cultivable but uncultivated land.
9. This kind of land is given in inam while the remainder of the village which means every part of the village except the arable uncultivated lands is given in farm. But what is granted is the village itself as would clearly appear not only from the preamble but also from the body of the grant in the very first clause after the preamble and also from Clauses Nos. (17) and (18), etc. The deed opens with the grant of the village except the Abkari revenue. The first part of the grant which deals with inam consists of only one clause and we are not concerned with it.
10. The second part of the grant, i.e., the khoti grant, consists of twenty-one clauses, out of which clauses 1, 2, 5, 6, 7, 11, 17, and 18 are important. In the first clause the net revenue as derived from the village in the year preceding the grant is stated to be Rs. 2,361 and odd from agricultural as well as non-agricultural sources, including taxes on trees, professions and capitation tax on fishermen. Then follows the second clause which is the really operative part of the grant and is to be read with Clause No. (6). The combined effect of these two clauses is this:-Out of the various rights which Government possessed over the uncultivated lands and trees in the village, some, as stated in this grant, had been reserved by the Government, but except those all other rights had been granted. At the same time, other persons, e.g., occupants of lands, might have got certain rights as against Government. Those were not to be affected by the grant, which was, therefore, to include only those rights which Government possessed and conferred on the grantee in this document.
12. The controversy between the parties has mainly ranged over the meaning of these two clauses. The learned Advocate General for the appellant has contended that these two clauses do not make the khot a proprietor of the village, and that the object of the grant being to bring the village in a prosperous condition, only rights over the cultivation of the village were granted, and he has for that purpose also relied on the words of the fifth clause of the grant. He further contends that in Clause (2), only uncultivated lands and barren trees are mentioned and it was only in respect of these that the Government granted certain rights over the soil, but that sub-soil rights as well as non-agricultural rights were not specifically mentioned, and therefore under Clause (6) they were not meant to pass. Lastly, he has urged that the grant must be construed against the grantee, that, under a Zamindari grant, the presumption is that minerals do not pass to the grantee (Raghunath Roy Marwari v. Raja of jheria (1919 L.R. 46 I.A. 158 : s.c. 21 Bom. L.R. 895), and that the plaintiff is in the position of a farmer of agricultural revenue and nothing more.
13. On the other hand, Mr. Coyajee, the learned Counsel for the plaintiff, supports the construction put on these clauses by the lower Court and contends that, with certain expressly stated exceptions, the village itself is granted in farm with its revenues from all sources. He contends that the vernacular words used in the preamble for the expression 'remainder of the village ' are ' Baki Darobast which expression has been construed in the case of a sanad in Vasudev. Pandit v. The Collector of Puna (1873) 10 B.H.C.R. 471, as ' the whole of the remainder ' which would mean that all the rights which Government had in the village had been assigned to the lessee. He distinguishes the case of Raghunath Roy Marwari v. Raja of Jheria on the ground that there, although certain land was granted rent free, the grant was only a grant of the bare rights of cultivation and the only words in the grant were ' You should enjoy it comfortably by cultivating' and getting the same cultivated by others', and that the present grant contains entirely different and wider terms and could not be construed as a grant restricted to agricultural purposes only. For the respondents, very strong reliance is placed upon a recent case decided by the Privy Council, viz. Wadia v. Secretary of State for India . The decision in that case is important for the construction of this sanad, because, firstly, the sanad there comprised two villages in the very island of Salsette in which the village Mahul, which is the subject-matter of the present grant, is situated, and, secondly, the terms of the sanad in that case also are in a number of respects similar to the present one. What happened there was this. The ancestor of the assignee of the two villages of Juhu and Vile Parla was formerly given an inam of a fixed cash amount of Rs. 4,000 per year. Some time later the grantee applied to the Government to give him villages in Salsette in place of the cash inam and Government gave him these two villages in substitution of the cash grant. It is to be noted that the villages themselves were not granted in inam, but it was calculated that the total income of these two villages from agricultural as well as non-agricultural sources was about Rs. 4,700 and odd, and out of this amount the inam of Rs. 4,000 was deducted and it was stipulated that the remaining amount of Rs. 700 was to be paid by the grantee to the Government. This amount of Rs. 700 was subsequently reduced to Rs. 200. The grant of the villages was in perpetuity and as here the occupants of the land or ' Sutidars ', as they were called, were made permanent proprietors of the plots which they possessed on their paying a fixed assessment to Government. The grant was made subject to certain conditions, and condition No. 20 there was similar to Clause No. 6 in the present grant. The Privy Council held on a construction of this sanad that what was granted to the grantee was the villages themselves, that the villages were alienated to the grantee within the meaning of that term under Section 3, Clause (20), of the Bombay Land Revenue Code, and although the grantee was not made a proprietor of the villages, the income of the villages from all sources was given to him, and it was further held that if one kind of income was substituted by another kind of income, e.g., the agricultural assessment converted subsequently into non-agricultural assessment of the land, then it was the grantee who was entitled to this altered assessment under Section 48 of the Bombay Land Revenue Code and not the Government. I think that the present sanad must also be construed in the same manner in which the sanad in that case was construed by the Privy Council. Here, although there was no inam granted to the present plaintiff's ancestor before this grant was made, we have the fact that in this grant itself certain cultivable lands are granted in inam and the rest of the village is given in farm, but that would not make any material difference between the present case and that ease, because the villages there were not granted in inam but were only assigned to the grantee on conditions similar to those in the present deed. It is also clear that in any case the grant was of all the revenues derivable from the village, except Abkari, and not merely the agricultural revenue. The inclusion of profession tax and capitation tax and the express exclusion of Abkari revenue which is a non-agricultural income shows that the grant included all kinds of revenue derivable from the village. That being so, 1 think that the lower Court is right in the construction which it placed on this grant, and it must be held that the plaintiff's ancestor is granted the village itself with all the revenues derivable from it subject to the express exceptions made in the grant.
14. With these general observations with regard to the construction of this grant, I now turn to the particular facts of each appeal in this case.
15. First, I will take up the companion appeals, First Appeals Nos. 137 and 139 of 1927, which deal with the question of royalty on earth, stone and teak trees. It would follow from the construction which I have placed on the sanad, that if Government was entitled to a royalty on these items before the grant was made, then in that case these rights must be deemed to have been conveyed under the grant to the grantee. It is clear that these rights were possessed not by the occupants but by the Government. It has been held in Vasudev Bhaskar Pendse v. The Collector of Thana (1879) P.J. 274 that before the Bombay Land Revenue Code the ownership of trees in varkas, i.e., inferior kind of land, belonged to Government and it has also been held in an unreported decision of this Court in Mukund Gopinath Patil v. Janmejaya Chhabildas (1916) S.A. No. 732 of 1913 that minerals and trees in such cases belonged to the Government. That being so, it must follow that the plaintiff is entitled to the royalty which he claims with respect to these items. For the respondent, reliance has been placed on a number of documents in this case which show that their ancestors have received the income from minerals and trees in this village and that Government officers have from time to time admitted the plaintiff's right to them. The lower Court also has based its decision to a certain extent on the subsequent conduct of the parties. I do not rely upon this evidence for the purpose of construing this sanad. As observed in the abovementioned Privy Council case, a grant is to be construed by its own terms and not by the previous or the subsequent conduct of the parties. All that this conduct would show is that the Government officers have put the same construction upon the grant which the plaintiff asks the Court to put. At the same time, however, this fact would not work as an estoppel against Government, because if these acts were mistaken acts on the part of Government officers, the Crown would not be bound by them: Prosunno Coomar Roy v. The Secretary of State for India in Council I.L.R.(1899) Cal. 792 It is also argued on behalf of the respondents that they had been asserting these rights ever since 1860, and that, even assuming that they were not entitled to this income under the grant, they had acquired that right by adverse possession against the Government. I agree with the lower Court that the plaintiff has not been able to establish this part of the case, and therefore, he cannot succeed if the construction of the grant is against him.
16. Then coming to First Appeal No. 138 of 1927, this appeal relates to the levy by the Government on certain residential structures and cattle sheds erected by the plaintiff on his land in this village, and it is contended on behalf of the appellant that these structures are not farm houses but are built by the plaintiff for his own use as a seaside villa, and therefore, they do not come under the first paragraph but come under the second paragraph of Section 65 of the Bombay Land Revenue Code and are liable to enhanced non-agricultural assessment. The lower Court has held on this point, firstly, that these structures are built for agricultural purposes and are not residential villas, and that Section 65 of the Bombay Land Revenue Code does not apply as this is an alienated village. As to the latter point, the appellant contends that the plaintiff's case falls under Section 65 because by virtue of Section 217 of the Bombay Land Revenue Code where a survey has been introduced into a village, the occupants there get the same rights and liabilities as the occupants in an unalienated village, and therefore the plaintiff would also be governed by Section 65. On the other hand, it has been contended for the respondents that the village is an alienated village under Section 3 (20) of the Bombay Land Revenue Code, that they are holding the whole village in perpetuity for a fixed sunij that they are not governed by Section 65 of the Bombay Land Revenue Code, that they have been appropriating the increased non-agricultural assessment after the survey of the village in 1886 and building assessment is only an altered form of assessment, and that, as held by the Privy Council in Wadia v. The Secretary of State for India, they are entitled to non-agricultural assessment and Government cannot levy any such non-agricultural assessment on any building erected by the plaintiff on his land whether for agricultural or non-agricultural purposes.
17. Now it is to be observed that a khoti grant is an alienation within the meaning of Section 3 of the Bombay Land Revenue Code. The grant in the case of Wadia v. Secretary of State for India was almost of the same nature as the grant in the present case, and there also it has been held that it amounted to an alienation within the meaning of that term in Section 3 (20) of the Bombay Land Revenue Code. The learned Advocate General has placed strong reliance on a decision of this Court in the case of Haji Abdulla v. Secretary of State for India I.L.R.(1911) 35 Bom. 462 : 13 Bom. L.R. 883 in which it was held on the facts of that case that the grant did not amount to an alienation. It is to be observed that in that case the grantee was to bring the lands under cultivation within the period of forty years and the assessment was to go to Government, that it was competent to introduce a new survey and assessment irrespective of the wishes of the grantee. There was no condition there similar to condition No. 2 in the present grant, and the decision is confined to the facts of that case only.
18. Although I feel a certain amount of doubt as to the correctness of that decision even on the facts of that case, it is not necessary to discuss it further because the facts in the present case are materially dif-ferent from those in that case, and if the grant here is to be construed with any other grant, the present grant is more similar to the grant in Wadia's case than the grant in Haji Abdulla's case. The grant, therefore, being an alienation within the meaning of that term in the Bombay Land Revenue Code, Section 65 of the Bombay Land Revenue Code would not apply to this case; and as to the application of Section 217 of the Bombay Land Revenue Code, that section applies as between an occupant and the grantee and not as between the grantee and the Government. The present case would be governed by the terms of Section 218 of that Code rather than by Section 217. Really speaking, as has been conceded on behalf of the appellant, this question also turns upon the construction of this grant and not on Section 65, because if the grant be construed to be a grant of the village with all its revenues except Abkari, then in that case the grantee would be entitled to erect any structure without the payment of extra assessment to the Government, irrespective of the terms of Section 65 of the Bombay Land Revenue Code. Under the construction that I have put on the grant, I think it is clear that the Government is not entitled to levy any non-agricultural assessment on these buildings and this part of the case would be covered by the decision in Wadia's case. That being so, it is not necessary to go into the question as to whether the buildings constructed are farm buildings or residential houses.
19. The appellant has also urged that the present suit is barred by limitation as having been filed more than one year after the order to recover non-agricultural assessment. I do not think, however, that Article 14 of the Indian Limitation Act applies to the facts in this case, because if the order of enhanced assessment is a nullity or in excess of authority, it was not incumbent on the plaintiff to file any suit to have the order set aside: see Shivaji Yesji Chawan v. The Collector of Ratnagiri I.L.R.(1886) 11 Bom. 429 and Dhanji v. The Secretary of State I.L.R (1920). 45 Bom. 920 : 23 Bom. L.R. 279
20. The decision, therefore, of the lower Court holding that the Government is not entitled to charge non-agricultural assessment is correct.
21. The last appeal to be dealt with is First Appeal No. 104 of 1925 in which the dispute is about a part of the foreshore lands to the south of the village. The history of this dispute is that in April, 1861, a certain portion of land measuring about one hundred and forty-eight acres on the southern side of this village bordering on the sea was sought to be acquired by the Government from the khot That piece of land is described in the suit as Pir Pav land as there is a tomb of a saint called Pir Pav on it. An award was made by the Government, but subsequently the acquisition proceedings were dropped, and by private arrangement it was sold by the khot to the Government in August, 1862, for Rs. 20,000. Then, in November of the same year, a portion of this land was leased by Government to a company called Elphinstone Co. for excavating earth and constructing a pier. It was later on resumed by the Government, and subsequently in the year 1883 a portion of this land measuring about four acres was leased by Government to one Dadabhai Manekji and the rest to one Haji Ismail, but the latter grant was resumed by Government in 1904. Then in 1886 the revenue survey was introduced in this village at the khot's request and all the lands in the village were measured, numbered and assessed. Exhibit 67 is a memo written by the revenue officer in which he states that the foreshore lands which were known as khajan lands were within the boundaries of the village and held by him under his grant, that for more than fifty years he has enjoyed income from stones, sand, etc., from these lands and that they should be entered in his name. As a result of the enquiry the whole of the foreshore with the exception of the Pir Pav land sold to the Government was included in the village, and the lands of the foreshore were described as khajan lands and given one survey number, viz., 72. The area of this land was about seven hundred and eighty-three acres. Exhibits 72 and 73 are the extracts from the survey proceedings showing that this survey number was described as khajan lands and entered in the name of the khot as proprietor. The Pir Pav land was entered in the Collector's name. Later on Dadabhai assigned his rights to the present defendant No. 2 who constructed a pier on this land. Then in 1908 the survey records were altered by the Government without the plaintiff's knowledge, and survey No. 72 was split up into three portions by drawing two vertical lines WX and YZ in the village map, Exh. 78A. Thus the foreshore was divided into three parts. The portion to the west of the line WX was entered in the khot's name, the portion between WX and YZ was given a new survey No. 185, and that comprised the foreshore adjoining the Pir Pav land. It was entered in the name of the Collector and a small strip to the east of the line YZ was given survey No. 186 and that also was entered in the name of the khot. Then subsequently some part of Pir Pav land measuring about nineteen acres was added to survey No. 185 and that number was sub-divided into two numbers, 185A and 185B. No. 185B was given by the Government on lease to defendant No. 2 and No. 185A was entered in the name of the Government, and it is this new No. 185A measuring sixty-three acres and sixteen gunthas that is in dispute in this appeal.
22. The lower Court has held that this No. 185 A which is the khajan land adjoining the southern extremities of the village was included in the original grant inasmuch as what was granted to the original grantee was the whole of the village with all its lands, and this part of the foreshore was a part of the uncultivated land of the village, and therefore it belongs to the khot. The lower Court has also held on the evidence that at least from 1890 up to 1910 the khot has exercised rights of ownership over this and the other parts of the foreshore of the village by charging fees for sand removed from the foreshore and by charging rent from fishermen for boats kept on it.
23. Now, the appellant's case on this point is this that no part of the foreshore is granted under the kowl and the Crown is the owner of the foreshore between high and low water marks. Reliance is placed upon Attorney-General v. Emerson [1891] A.C. 694, Emperor v. Budhoobai (1905) 7 Bom. L.R. 726 and Secretary of State for India v. Chellikani Rama Rao I.L.R(1916) Mad. 617 : 18 Bom. L.R. 1007, p.c to show that prima facie the Crown is entitled to the foreshore. It is further contended that Clause (2) of the grant under which the foreshore is alleged to have been granted contains the word osik only and. not kirdasar osik, that is to say, the lease as opposed to the inam grant includes only the waste and the foreshore cannot be said to be waste land, and that none of the clauses of the grant make any express reference to the grant of the foreshore. It is contended as an alternative case that, even assuming that the foreshore was granted under the original grant, the part of the foreshore in dispute now, which is adjacent to the Pir Pav land, must be taken to have been purchased by the Government when that land was sold in 1862, and that therefore, even though the rest of the foreshore may belong to the khot, this part of the foreshore in suit has passed to the Government under the sale. It is, however, conceded that the total area of one hundred and forty-eight acres, which is mentioned as the area of the Pir Pav land sold to the Government, does not cover the area of the foreshore in dispute but comprises only the land situated to the north of this foreshore. On the other hand, it has been contended by the respondents that the foreshore of the village is included in the grant and that they have been enjoying income from this foreshore from the beginning, that the foreshore is a part of the village and consists of khajan lands which are surveyed and assessed in the survey of 1886. The respondents also rely on the various acts of enjoyment of fees, etc, with respect to the foreshore at least from 1890 till 1911 when their rights were disputed. They also rely upon the acquisition by the Government, in 1919, of a part of the foreshore which is situated just to the west of the foreshore in dispute.
24. Now the first thing that is to be seen is, whether this foreshore is included in the grant or not. We have seen above that under the grant what is granted is the village itself, with certain exceptions, and the foreshore is not expressly excepted. At the same time the whole of the land comprising the foreshore, which covers a very large area of seven hundred and eighty-three acres, does not consist merely of stone and sandy tract, but it consists of lands which have been regarded as khajan lands from the beginning and assessed as revenue bearing land. Khajan land is described in Molesworth's Dictionary as 'cultivable land lying along the coast or along inlets and exposed to be overflowed by the tide,' and these lands have been regularly surveyed and assessed as forming, part of the lands of the village. Therefore, unless otherwise proved, they must be regarded as lands which have passed to the grantee under the howl, and Clauses Nos. (2) and (6) of the kowl read together convey, to my mind, these khajan lands also to the grantee. It is quite true, as contended on behalf of the appellant, that the presumption is that the Crown is entitled to the foreshore unless it can be shown from any particular grant that the foreshore is conveyed under it, but that presumption is satisfactorily rebutted here by the terras of the grant. Now. it cannot be denied that the lands comprised in a foreshore can, be made the subject-matter of a grant as has been observed in Secretary of State for India v. Chellikani Rama Rao, on which reliance has been placed on behalf of the appellant. At p. 626 a passage from the judgment of Parker J. in Fitzhardinge (Lord) v. Purcell [1908] 2 Ch. 139, 166 is quoted with. approval. It is stated there:
Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown, and there seems no good reason why the ownership thereof by the Crown should not also, subject to the rights of the public, be a beneficial ownership. The bed of the sea, so far as it is vested in the Crown, and a fortiori the beds of tidal navigable rivers, can be granted by the Crown to the subject. It is also true that no such grant can, since Magna Charta, operate to the detriment of the public right of fishing. But, subject to this, there seems no good reason to suppose that the Crown's ownership of the bed of the sea and the beds of tidal navigable rivers is not a beneficial ownership capable of being granted to a subject in the same way that the Crown's ownership of the foreshore is a beneficial ownership capable of being so granted.
25. On behalf of the appellant reliance has been placed upon a passage in The Law of Waters, 3rd Edition, by Coulson and Forbes at p. 28, which says:
The ownership of the Crown in the sea-shore' being, as has been said, for the public benefit, grants of portions of it to an individual subject are, as it were, an encroachment on the public right and against good policy ; and, therefore, the Courts are inclined to construe such grants strictly in favour of the Crown pro bono publico and against the grantees. The burden of proof is in all cases on the claimants, and unless they make out a good title judgment must be for the Crown. The same rules, however, of common sense and justice must apply in the construction of a deed, whether the subject-matter of construction be a grant from the Crown or from a subject-it being always a question of intention to be collected from the language used with reference to the surrounding circumstances.
26. This proposition has not been denied on behalf of the respondents, but they rely on certain passages from the same treatise at pages; 33 to 36 where it is stated as a summary of authorities on the subject that certain acts of ownership are admissible to prove that the foreshore is within the boundaries of a grant of land on the sea-shore, although what acts of ownership are sufficient to establish such a claim is not easy to say, and that the chief proprietary acts for which the sea and sea-shore afford scope appear to be, among other things, mining, digging, taking sand, taking salvage for grounding of ships, etc.
27. Ever since the survey, the plaintiff has exercised his right over these khajan lands, and that right had not been challenged till 1911. It is true that this would not work as an estoppel against the Government, nor can it be invoked in the plaintiff's favour in construing the grant itself. But if in the grant we find that the village itself has been granted and it is further stated that all the rights of revenue which Government possessed in that village have also been granted to the plaintiff, then, in my opinion, it is difficult to resist the conclusion that the whole of the foreshore in the village must be included in the express words of the grant as described in Clauses (2) and (6) of the deed.
28. With regard to the argument that the foreshore is waste and not waste land, and that the term osik means waste land, and therefore, what is granted is waste only and not the waste land, as I have observed above, the term osik means uncultivated fallow land and the evidence in this case shows that the foreshore in dispute is not mere waste in the sense of not being a part of the lands of the village. It is clear that these lands ' are khajan lands, and although they may not be actually cultivated, they are part of the lands of the village from which Government could derive some revenue in the form of fees for digging earth, sand, and keeping of boats thereon. If, therefore, the plaintiff claims this revenue on the ground that all the revenues from the lands of this village have been granted to him under the deed, then, I think, it cannot be denied that the plaintiff is entitled to it as being the grantee of the lands.
29. It has been contended on behalf of the appellant that the survey proceedings and the entries in the revenue records in virtue of the survey do not give any title, and that if they are mistaken they are liable to be corrected. It is quite true that the plaintiff cannot claim any rights over the foreshore merely because of the survey. It can be said at the most that the evidence in the case corroborates the construction of the grant which has been put by the lower Court, and I think that the survey proceedings and the acts of enjoyment of the income from the lands in suit can be pressed by the plaintiff in his favour to this extent that they are admissible to prove that the foreshore lands are within the boundaries of the village, and that if the village be held as assigned to the plaintiff he is also entitled to these lands.
30. In view of this decision, it would not be necessary to consider the alternative case advanced on behalf of the appellant that this part of the foreshore in dispute has passed to Government under the sale transaction of 1862. If it were necessary to decide this question, I am of opinion that this part of the foreshore was not conveyed by the khot to Govern-ment in 1862. The conveyance of the land in 1862, if any, is not on the record, but the agreement to sell, Exh. 86, shows that the then khot agreed to sell for a sum of Rs. 20,000 a piece of land belonging to him in the village of Mahul and situated on the southern extremity of Trombay, the boundary line of which had been marked by a trench cut from the western to the eastern coast line, the area being one hundred and forty-eight acres and odd. It was this specified land that was sold, and when it is rightly conceded that the present land in dispute, which comprises about sixty-three acres, is not included in that area of one hundred and forty-eight acres, the conclusion is obvious that this part of the foreshore cannot be regarded as having been conveyed to the Government. The plaintiff is in undisputed and undisturbed possession of the rest of the foreshore even now, and this suit is confined, as I said above, to only a very small part of the whole of the foreshore lands of the village.
31. For these reasons I agree with the view which the lower Court has taken on a construction of the deed as well as on the evidence on record that the lands in suit have been assigned to the khot, and that, therefore, he is entitled to the relief claimed by him and granted by the lower Court.
32. As a result of this judgment the decrees passed by the lower Court in all the four appeals are confirmed, and the appeals, therefore, are dismissed with costs as against the plaintiff.
Murphy, J.
33. These four appeals arise out of the same matter and can, to a certain extent, be treated together, though the considerations governing all but two of them are different.
34. The common bond is the grant or kowl as it is called, of the village of Mahul on the island of Trombay in Bombay Harbour, by the Government of Bombay to the respondents' ancestor in 1831.
35. Ordinarily, the grant of a village in inam may be one of several kinds, and there is also a form of alienated village called khoti to be found in the Kolaba and Ratnagiri districts. This form is based on custom, and in the case of Ratnagiri is governed by a special Act. The khots historically are farmers of the revenue, holding under a lease-Mahul, with which we are now concerned, is also called a khoti village, but: the word 'khot' is not used in the Ratnagiri sense-but in that of a grantee of certain rights which had belonged to Government. It is probable that in 1831 the distinctions now prevailing between different kinds of inams and khoti tenures were either undeveloped, or misunderstood by Government, and we must, therefore, construe the grant as it stands, deriving such help as we can from the decided cases of analogous grants in Salsette, and from the actual circumstances of this village.
36. The scheme of the grant is simple and its object evidently the extension of cultivation. In the case of Konkan villages, cultivable land falls into four classes-there is paddy growing land, land not actually growing but capable of yielding paddy, land called varkas which grows grass and shrubs to be used for rab, that is, to burn to form an ash bed for the rice seedlings, and sometimes salt paddy land, liable to inundation by salt water, but still capable of (Sic) certain kinds of crop.
38. At the time of the grant the village was unsurveyed, but more or less classified, and the scheme seems to contemplate three classes of land.
39. Paddy growing land paying revenue, paddy land gone out of cultivation, the varkas and possibly the salt paddy land, though no distinction is made, if it existed, between these two last. The ordinary paddy land was assessed, and the grantee was charged with the farm of its revenue, hence his title of khot or farmer. The revenue was fixed. The uncultivated paddy land, which is specified, is given him in inam, that is free of land revenue or even quit rent, to be made the best use of possible for his profit, and the rest of the village was given him in khoti. There were certain savings including the rights of ' sutidars' or occupancy holders, and the Abkari revenue derived from toddy and date palms. The grantee was expected to extend cultivation, and had to dig two wells within a certain time, but his payments were fixed.
40. The main line of Government's and the khots' rights is not really in dispute, the differences between the two sides arising out of what were, I am sure, unforeseen later developments, in connection with quarrying fees, royalty to be paid on teak trees felled, this being ordinarily reserved to Government, altered assessment for building sites, and title to the foreshore. The royalty on teak trees probably always existed, quarrying fees and altered assessments were later developments, and I suppose the right to the foreshore then had no importance.
41. Be this as it may, when in 1918-1919 the Port Trust arranged with certain occupancy tenants to quarry in their land and did so, the khot claimed quarrying fees at Rs. 10 per guntha which is the rate levied by Government in similar case, and Government has also claimed the amount due, the rate of which is not disputed. The occupancy owners and the Port Trust are willing to pay either of the two claimants. The fees for teak trees arise in the same connection, as they appear to have been cut owing to the conversion of the land to quarries. These are the facts and the claims underlying two of the appeals-Nos. 137 and 139.
42. The third suit and appeal No. 138 of 1927 relates to altered assessment. The theory of land tenure in India is that the land belongs to Government and is given out to occupants, subject to their paying the land revenue fixed from time to time. In theory, the most important use of the land is for cultivation, and when it is diverted to other uses, the assessment is altered under certain rules, really based on the enhanced value of building sites, which should, therefore, pay an increased amount. In this case, the khot, many years ago, built himself a small bungalow and some out-houses and a granary in some of his vacant land. No notice was taken of this improvement for some years by the authorities. When it did come to their knowledge, the Collector, Mr. Turner, inspected the buildings, and exempted them from altered assessment, on the ground that they were farm buildings. A more recent successor has taken a different view of their character and has imposed an altered assessment, and Government's right to do this is now disputed.
43. The fourth appeal No. 104 of 1925 relates to a portion of the foreshore which is claimed, both by Government and by the khot. Unless granted to others, the foreshore between high and low water marks belongs to the Crown; and the only question is whether this foreshore has been included in the grant, or not. Its history is rather a long one. It is only a part of the foreshore, fronting a block of one hundred and forty-eight acres, which was acquired by Government for harbour extension purposes in 1862. The foreshore was admittedly not then acquired. Government's case is that the foreshore was not within the terms of the grant, because the expressions used in the kowl to describe the village sea boundary must be taken to mean the village land excluding the foreshore, while the knot's case is that the foreshore is included within the grant. These are the broad facts in each of the appeals.
44. My learned brother has dealt in detail with the case law quoted before us and the arguments relied on in each case by the two sides, and I will confine myself to a very short statement of my reasons.
45. The important clause of the kowl is, I think, No. 2-
In the said village there are lands and shrubs lying oaik. And Government has rights over the said lands and trees, and over the income thereof. Out of the same Government has reserved the rights mentioned in this kowl. Except that right all other rights have been granted to you. 'You should go on enjoying the same.' I may here also refer to the description of the boundaries of the village - (1) On the east the village of Nanale,
(1) On the south the sea,
(1) On the west the arm of the sea which runs towards Sion,
(1) On the north the boundaries of two villages namely Anik and Dewnur.
46. In appeals Nos. 137 and 139 the dispute turns on whether Government's right to reserved teak trees and the quarrying fees for land put to that use passed by the kowl or not. Both rights are reserved under the Bombay Land Revenue Code. The trees in question were cut down in the course of quarrying operations and these were carried on partly in rice land and partly in varkas held by 'sutidars' or tenants. In Government villages a fee is levied for each reserved tree cut, and altered assessment at Rs. 10 per guntha is levied on agricultural land used as a quarry, and these are the rights the khot claims. As to the trees, I think that the right to levy a fee for each one cut would be included in the grant, for it is one of the whole village in terms, and the right is not one of those reserved, either specifically or by implication. The learned Joint Judge has analysed the exact meaning of the Marathi grant; and amended the translation in places, but, like my learned brother, I prefer to rely on the official translation. It appears to have been the clear intention of the grant to give the grantee part of the village absolutely in inam, and part in farm, meaning by that expression the right to all its revenues on payment of a yearly assessment, while reserving only the excise revenue.
47. It has also been argued that there is no specific grant of any mining rights, and that quarries are mines-but they are not so treated under the Bombay Land Revenue Code, which proceeds on the assumption I have mentioned elsewhere, that the land has been diverted from its original and proper use and that it is, therefore, to be re-assessed on a new basis.
48. If I am correct in so thinking, the enhanced assessment is part of the revenue due to it. In this village it has already been conceded that the enhanced assessment made on the revision survey went to the grantee. It is true that there is a clause in the grant that the ' sutidars' ' assessment shall not be enhanced without the sanction of Government, but that, I think, has reference to the ordinary assessment, and not to a special one such as this one is.
49. Though the grants are not exactly similar in terms, I believe that the ratio decidendi in Wadia v. Secretary of State for India applies here also, and if this view is correct, I agree that these two appeals must be dismissed.
50. The next appeal is No. 138 of 1927. The broad facts have already been stated. Under the Bombay Land Revenue Code building fines and altered assessment are levied under Sections 65 and 66. Government's right to levy it, in this case, depends on whether the land in question is alienated or not, for these sections do not by the definition of 'occupant' and ' alienated ' apply to alienated land.
51. The non-agricultural assessment was admittedly unknown at the date of the grant. It was introduced later by the Bombay Land Revenue Code of 1879. The argument has been that the liability must always have been there, and that the question was outside the purview of the grant. There is a Bombay case in Haji Abdulla v. The Secretary of State for India (1911) I.L.R. Bom. 462 : 13 Bom. L.R. 883, in which a division bench of this Court held that a village, somewhat similarly granted, was not alienated within the meaning of the definition in the Land Revenue Code, but it has been distinguished by the learned trying Judge, as that grant did not contain any clause similar to clause 2 in this one. I think that in the plain meaning of the definition of ' alienated ' and ' occupant' Mahul is an alienated village, and consequently that Section 65 does not apply, and that such an assessment cannot be levied from the khot.
52. Coming to the question of the foreshore, the description of village boundaries in the grant does not help mudi, as being too vague. It is conceded that unless it passed to the khot by the grant, the foreshore between high and low water marks would vest in the Crown. Apart from the history of what happened, and which has been narrated by my learned brother, the question really turns on whether the foreshore is part of the village, uncultivated perhaps but still cultivable land. The foreshore of Mahul has undoubtedly been so treated at the survey. It has been measured and classed as a special kind of land, called khajan, the waste or uncultivable portion being excluded as in the case of other land, as kharab or uncultivable, and has also been assessed. If this procedure was correct, it clearly forms part of the village land, and would be included in the khoti of the grant.
53. It is true that this measurement and assessment was many years later than the grant, that is at the survey in 1887, and it seems very probable that what was so measured and assessed was not thought of from this point of view in 1831. But khajan land, as it is called, appears to be a special kind of land recognised as partly cultivable in villages on the sea and tidal creeks, and if I am correct in so thinking, it might have been envisaged at the time, and would fall within the class of osik in the grant which was given to the khot.
54. I agree, therefore, with the orders proposed by my learned brother to be made in all four of these appeals.