Michael Westropp, C.J.
1. This action was brought by the plaintiff as proprietor of a moiety of the village of Nanej, to recover from the Mamlatdar the plaintiff's half of the land rents for the year 1870-71 wrongfully, as the plaintiff alleges, intercepted and withheld by the Mamlatdar.
2. The Assistant Judge, who tried the suit, awarded a part of the claim; but the District Judge, on appeal, reversed this decision on the ground that the suit related to a grant of land revenue and, as such, was, for want of the certificate required by Act XXIII of 1871, barred by Section 6 of that Act.
3. The only question, therefore, before us is, whether Act XXIII of 1871 operates so as to deprive the Ordinary Civil Courts of jurisdiction in a suit brought under such circumstances as present themselves here.
4. The sanad, whereby the village (or perhaps we should rather say so much of it as belonged to the Satara Government) was granted to Visaji Rav Mandlik, the ancestor of the plaintiff, (special appellant), has not now for the first time run the gauntlet of the British Civil Courts. Its genuineness appears to have been not very reasonably disputed by the Collector of Ratnagiri upwards of twenty years ago, but to have been completely established in the Zillah Court, whose decision was (A.D., 1853) affirmed in the Sadr Adalat. [His Lordship then, after reading the sanad and the portion of the takid, or letter, of even date with it set out above, proceeded]:
5. The District Judge, while admitting that at first sight the terms of this grant convey an absolute proprietorship in the village, has held that the grant is limited by the rights which are reserved by the words 'excluding the Hakdars and Inamdars', or, as he has paraphrased those words, 'saving the rights of the Hakdars and Inamdars'. From the evidence on the record the learned Judge came to the conclusion that all that the grantee had enjoyed since the date of the grant was a half share in the revenue of the village, and that, notwithstanding the apparently more comprehensive language of the grant, it really was a grant of land revenue and nothing more.
6. We would observe, with regard to this finding and the additional (the fifth) point raised in the special appeal, viz.: 'that the District Judge was in error in not permitting the special appellant to produce evidence in support of the facts stated in his darkhast, Exhibit No. 7', that the question as to what rights the plaintiff and his ancestors had actually enjoyed in the village was raised for the first time in the lower Appellate Court, and assuming with the learned District Judge that it was necessary to enter into that question, we think that he should, before deciding it, have admitted the application (Exhibit 7) made by the plaintiff to be allowed to give evidence on the point.
7. We are, however, of opinion that such an inquiry was unnecessary, inasmuch as the determination of the nature of the claim and title of the plaintiff must rest upon the terms of the grant, irrespectively of the use which the plaintiff and his ancestors may have made of the property conveyed by it.
8. It is no doubt true that 'sanadi grants in inam, saranjam, etc., are, generally speaking, more properly described as alienations of the royal share in the produce of the land, i.e., of land revenue, than grants of land, although in popular parlance so called', (4 Bom. H.C. Rep. 7, A.C.J.), but it is not true that such is invariably the case. If words are employed in the grant, which expressly or by necessary implication indicate that Government intends that, so far as it may have any ownership in the soil, that ownership shall pass to the grantee, neither Government, nor any person subsequently to the date of the grant deriving under Government, can be permitted to say that the ownership did not so pass. Now in the sanad in evidence here, whosoever framed it was apparently determined that no ambiguity should exist as to what the force of the term 'village' might be, and, in order to be explicit, he added to the grant of the village in inam the words including the waters, the trees, the stones (including quarries), the mines, and the hidden treasures therein'. The Assistant Judge has relied upon the case of Vamun Janardhan Joshi v. The Collector of Thana and the Conservator of Forests 6 Bom. H.C. Rep 191 as supporting his opinion that the sanad did not grant the soil. But a more careful perusal of that case would have shown to him that the actual decision in that case was wholly inapplicable to the present case, inasmuch as there were not any such words employed there as 'the waters, the trees, the stones, the mines', etc., which we have here, and which, if they do not mean that the Government of the years 1733-34 did intend that the soil, so far as it could be regarded as vested in that Government, should pass, it is impossible to say what they do mean, and he would also have found on perusing pages 199 and 200 of the judgment of Mr. Justice Melvill in that case, that the result of it would have been the opposite of what it was, if the sanad there had contained such words.
9. There may, of course, be, as there were in the kaul in the case of Ruttonji Edulji v. The Collector of Thana and the Conservator of Forests 11 Moo Ind. App. 295; S.C., 10 Cal W.R. 13, such detailed provisions as may show that words, such as we have here, may be limited in their operation. The description of the lands, there actually demised and which did pass under the terms of the kaul or lease, was so clear and detailed that it was hold not to include forest lands.
10. Whatsoever rights (if any) in the village of Nanej Hakdars or Inamdars (it is unnecessary for us to give any opinion now as to whether the Khote could come within either of those denominations) may have had, as against the State, at the date of the sanad have, no doubt, been saved to them, and even, if they had not been expressly named in the sanad, would have remained intact, inasmuch as Government could not have granted away the rights of third parties. This is in accordance with the opinion lately expressed in giving the judgment in the Kanara Land Revenue Case (Vyakumta Bapuji v. The Government of Bombay, 12 Bom. H.C. Rep., App 1), with respect to the rights of rayuts holding a proprietary interest in lands. lint it is not for the State itself to say that, when, beside granting 'a village', which may possibly mean only the land revenue thereof, it also purports to grant the waters, trees, stones (or quarries), mines, and the concealed treasures, all of these words mean nothing but land revenue. Could it be for a moment contended that the British Government, which, so far as the plaintiff's moiety of the village is concerned, has succeeded only to the territorial sovereign rights of the Raja of Satara through the Peishwa, could establish as against the plaintiff that the right to mines in the plaintiff's moiety of the village still remains vested in the Crown? Such a contention could not be maintained. The same remark would apply to each of the other items expressly named in the sanad as conferred upon the plaintiff's ancestor, and those items are all indicative of an intention that the soil should pass.
11. An enactment of a character so arbitrary as Act XXIII of 1871, which purports to deprive the subject of his right to resort to the Ordinary Courts of Justice for relief in certain cases, ought to be construed strictly, and the Courts should not extend its operation further than the language of the Legislature requires. An instance of a recent refusal by the High Court of Calcutta to give it any such extended construction is the case of Shahzadee Hazara Begum v. The Collector of Burdwan 23 Cal., W.R. 378, Civ. Rul). We do not mention that case as similar in its facts to those of the present case, but merely as showing that the Court was careful to keep the operation of the Act within its proper limits. The present suit is substantially one in which the plaintiff, in respect of his ancient ancestral estate in land, and not in respect of any mere grant of land revenue, complains of an interference with his rights as proprietor of half of the village of Nanej by the officer of the British Government which, as representing the Vishalgarh, claims the other moiety of the same village, and in pursuance of which interference the Mamlatdar has collected rents which belong to and issue forth from the estate of the plaintiff as proprietor, and which rents in the Mamlatdar's hands, the plaintiff alleges, are moneys had and received to his use, which he contends the Mamlatdar had not any right either to receive or detain.
12. The Act (XXIII of 1871) is intituled 'An Act to consolidate and amend the law relating to pensions and grants by Government of money and land revenue'. Section 4 lays down that, 'except as hereinafter provided, no Civil Court shall entertain any suit relating to a pension or grant of money, or land revenue conferred or made by the British or any former Government'.
13. And, besides its ordinary meaning, the expression 'grant of money or land revenue', is declared by Section 3 to include 'anything payable on the part of Government in respect of any right, privilege, perquisite or office.'
14. The meaning of the expression 'grant of money or land revenue', although thus expressly extended by the glossary of the Act, is not of so wide a range as to include a grant of the proprietorship of the soil or any suit involving the rights of a proprietor of the soil. The existence of this class of grants was known to the Legislature, and suits relating to such proprietary rights would, we doubt not, have been expressly mentioned had it been intended that the Act should apply to them. We cannot suppose that the Indian Legislature contemplated the enactment of a measure of a scope so wide as, on behalf of the Mamlatdar, it has been contended belongs to this Act.
15. With respect to the saving, in the sanad of the rights of Hakdars and Inamdars, we would refer to Vasudev Pandit v. The Collector of Poona 10 Bom. H.C. Rep. 471, where such an exception was held not to prevent the property in the soil, so far as it could be regarded as having been vested in Government, from passing to the Inamdar. The judgment of the Court there rested not directly upon the sanad granting the Inam, but upon the construction of a decision of the Inam Commissioner (under Act XI of 1852 and especially Rule I of Schedule B of that Act) upon the sanad. He had ruled that 'the whole of the village of Vadgaum, excepting only the rights and privileges of ancient Hakdars and Inamdars, should be continued in inam to the male descendants of Bhau Maharaz', and his order purported to be made under Schedule B, Rule I of Act XI of 1852, which is conversant of the continuance to subjects of 'lands' hereditary or in perpetuity exempt, wholly or partially, from the payment of revenue; and under that decision of the Inam Commissioner, West and Nanabhai Haridas, JJ., held that the proprietorship in the soil must be regarded as vested in the Inamdar and that the Collector had no right to open a quarry in, and take stone and sand from the lands.
16. We reverse the decree of the District Judge, and remand this cause for a new trial on the merits by the District Judge. We refrain from expressing any opinion on the question as to the right of Government to introduce the Revenue Survey into the village of Nanej, or to attach the plaintiff's half of that village, or, in short, upon any point in the cause, except the question whether Act XXIII of 1871 is applicable to this suit, the District Judge not having dealt with any other question. The objection founded on Act XXIII of 1871 to the jurisdiction of the Civil Court was not made on behalf of the Mamlatdar in the Court of the Assistant Judge, and, as we think, ought never to have been made. We accordingly direct the defendant to pay to the plaintiff the costs of both appeals. The costs of the suit must be disposed of, as may be just, on the re-trial now ordered.