1. The plaintiff in this case sued to recover enhanced rent from the defendant who was his permanent tenant. The defendant pleaded that he was liable to pay only the amount of the assessment in respect of the land held by him and nothing more.
2. The trial Court disallowed the defendant's contention and passed a decree in favour of the plaintiff allowing him certain enhanced rent. In appeal the District Court affirmed the view that the plaintiff was entitled to enhance the rent and varied the decree of the trial Court as to the amount which was to be allowed as enhanced rent.
3. The defendant preferred a second appeal to this Court, and the view taken by the appellate Court was affirmed in that appeal. From this decision of a single Judge in second appeal the present appeal under the Letters Patent is preferred to this Court.
4. It is urged on behalf of the appellant that the view taken by this Court as to the meaning of the expression 'alienated village' as used in Section 217 of the Land Revenue Code is not correct. The facts relating to this point are these. The plaintiff is a Kadim Inamdar holding certain land in the village. It is common ground that he is the grantee of the soil and not merely of the royal share of the revenue. The rest of the village has been alienated by the Government to the Rastes. It does not appear whether this grant to the Rastes is of the soil or merely of the royal share of the revenue. Apparently on the application of the Rastes the Survey Settlement was introduced into this village some years ago. In the present suit the question arose as to whether Section 217 had any application to the case. The defendant relied in the lower appellate Court upon this section as entitling him to contend that he was not liable to pay anything more than the assessment in respect of his land. The District Court as well as the learned Judge who decided the second appeal held that as the Kadim grant in favour of the plaintiff was net merely of the royal share in the revenue but of all the rights in the soil, the village was not an 'alienated village within the meaning of Section 217. It was assumed by them that the survey settlement was introduced into the village.
5. It has been held in Dadoo v. Dinkar : AIR1918Bom96 that the village would be an alienated village within the meaning of the Land Revenue Code notwithstanding that the whole property in the soil was granted by the Government to the Inamdar. That is the view which I accepted in Dhondo v. The Secretary of State for India in Council (1919) S. A. 160 (Unrep). In view of the decision in Dadoo v. Dinkar Mr. Bakhale has not sought to support the judgment under appeal on the ground on which it is based. It is not, therefore, necessary to consider whether the grant of the village as a whole in favour of the Rastes is limited to the royal share of the revenue only and whether the fact of the Kadim grant in favour of the plaintiff relating to a small part of the village would be a sufficient answer to the view taken in the judgment under appeal.
6. It is urged, however, on behalf of the respondent, that in this case the Survey Settlement has not been validly introduced into this village, because the present plaintiff, who is a Kadim Inamdar in the village, never consented to the introduction of such settlement. It is conceded before us, and in my opinion rigthly, that it must be assumed for the purposes of the present appeal that the Rastes have consented to the introduction of the Survey Settlement into this village. It is also not disputed that the Rastes are the alienees in respect of the whole village except the lands which are held by the present plaintiff and others as Kadim Inamdars. It appears that the plaintiff admitted in the trial Court that the Survey Settlement was introduced into this village and that he never suggested that the introduction was invalid for want of his consent. It does not appear from the judgment of the District Court or of this Court in the second appeal that the point relating to the validity of the introduction of Survey Settlement into this village was raised. Assuming, however, that it was raised, I am of opinion that it must be taken for the purpose of this appeal either that the plaintiff consented to or acquiesced in the introduction of the Survey Settlement into this village on the application of the Rastes. This inference is amply justified by the evidence which the plaintiff himself gave in the suit.
7. In this view of the question it is not necessary to consider the further point as to whether the consent of a Kadim Inamdar in the position of the plaintiff is essential for a valid introduction of Survey Settlement under Section 216 of the Land Revenue Code. The Rastes as alienees of the village as a whole except the lands held by the Kadim Inamdars are the holders of the village. Whether any Kadim Inamdar of some land in the village would be a holder of the village within the meaning of Section 216 is a question upon which it is not necessary to express any opinion, and I refrain from deciding that question.
8. Assuming that the consent of the plaintiff would be necessary for a valid introduction of the Survey Settlement into the village, it seems to me that having regard to his statements in this suit, he must be taken to have accepted the introduction of the Survey Settlement. The judgment under appeal proceeds on the assumption that the Survey Settlement has been validly introduced into this village: and the suggestion to the contrary made in the argument must be disallowed.
9. The result is that this appeal is allowed, and the decree under appeal set aside there will be a decree in favour of the plaintiff to the extent of the assessment and the local fund for the period mentioned in the suit. The figures in each case have been given in the tabular statement attached to the judgment of the District Court. There must be similar decrees in Appeals Nos. 54 and 55 of 1917.
10. Plaintiff to pay the costs of the defendant throughout in each case.
11. As regards Appeals Nos. 51 and 56 of 1917, the appellants are dead, and their representatives have not been brought on the record: the appeals, therefore, abate. There will be no order as to costs in these appeals.
12. I concur. It is clear from the deposition of the plaintiff that he never seriously denied the legality of the introduction of the Survey Settlement upon the application of the holder Raste. The question would not appear to have been specifically pressed either in the trial Court or in the two Courts of appeal. The application of Section 217 of the Bombay Land Revenue Code has already been decided in the case of Dadoo v. Dinkar by a Bench of this Court.