1. The plaintiff, who is the inamdar of the village of Narayanpur, sued to recover possession of the plaint fields from the defendants, together with water cess and costs, alleging that defendant No. 1's father had passed a rent note to him on March 2, 1904, agreeing to pay local fund and assessment, to deliver up possession whenever demanded, and not to alienate the property. After the death of the father, defendant No. 1 sold the property to defendant No. 2 and the deceased father of defendants Nos. 8 and 4. The suit was filed as long ago as 191,9. Originally the first Court gave the plaintiff a decree for possession. On appeal the decree was reversed, and the suit was remanded, and on June 15, 1926, it was dismissed after remand, There was again an appeal, and the decree of the lower Court was reversed, and the plaintiff's suit decreed against all the defendants, Defendant No. 1 has not appealed. Defendants Nos. 2 to 4 have made this second appeal.
2. This appeal has been argued at considerable length, and a great many authorities have been quoted, but it would not be necessary to deal with them all, as the facts are not really very complicated. The plaintiff is an inamdar or jahagirdar of a great many villages, amongst them the three villages of Narayan pur, Hardoli and Kathore, which were granted to his ancestors as long ago as 1626 by the Mogul Emperor, and these grants were subsequently confirmed by succeeding Governments, as will appear from the letter of the Collector of Khandesh, which gives a history of the grant. That is Exhibit 219, dated December 1 1852, at p. 70, The grant was confirmed by the British Government, and the sanad is on record. The previous sanads from the Mogul Emperor and the Pashwa are not on record. The principal question that has been argued in this appeal is whether the plaintiff is the grantee of the soil, or only of the royal share of the revenue, but as a matter of fact, for the determination of this appeal it is not necessary to decide this point, although it has been argued, and I will deal briefly with it. The questions as regards the rights of the parties in this suit are more or less academic, and do not really affect the result. The lands in dispute are Tika Nos. 20, 22 and 25. The village has not been surveyed, and in the present case the tenancy of defendant No. 1's father admittedly commenced in the year 1904-05, and commenced by a grant from the plaintiff. Now it is in evidence that the plaintiff receives grazing fees in the village, recovers water cess for the use of river water flowing into the village, and has received compensation for some land acquired under the Land Acquisition Act. It is also in evidence that the lands in dispute (there are two lands in dispute because defendant No. 1 has not appealed) were fallow for three years, and before that they were cultivated by one Gounshankar, and then they were relinquished by him, and they were granted by the inamdar to the father of defendant No. 1. Now whether the plaintiff is the owner of the soil or not, he is the person to whom in this village rajinamas are executed, and he is the person who grants unoccupied lands to tenants, and in the present case we have a rent note, Exhibit 40, which was executed by the father of defendant No. 1 to the inamdar. Whether or not the inatndar is the owner of the soil, he is undoubtedly the superior holder of this land, and in Rajya v. Balkrisltna Gangadhar I.L.R. (1905) Bom. 415 :7 Bom. L.R. 439 it is said that lands may have been unoccupied at the date of the inam grant, or the occupation rights that then existed in them may have lapsed, and these would be sheri lands. Now these are lands in which whatever rights there were before, whether occupancy or otherwise, had lapsed, and they had become sheri lands, and the inamdar, even if only a grantee of revenue, would be entitled to place tenants in possession of them not by virtue of any interest in the soil, but as being entitled to make the most he can out of them by way of revenue, and in such a case direct contractual relations would be established between the inamdar and the holder, and if those contractual relations are defined by an express contract of which there is evidence, then the rights of the parties must be determined by that contract. Quite apart, therefore, from the question whether the inamdar is or is not the owner of the soil in this village, he was in the position of having acquired this land in dispute as his sheri lands, because the rights of the former tenants in them had lapsed, and he granted them to the father of defendant No. 1 on a contract which is evidenced by Exhibit 40, and the rights of the parties must be judged on that. Now Exhibit 40, at p. 15, is a rent-note which Bays, after certain preliminary remarks as to the village being a new jahsgir village and not surveyed :
1 take the following numbers for cultivation from you for the year 1904-05, (Then the numbers are given). These numbers 1 have taken from you for cultivation. 1 will go on paying Jama and local fund in respect of the said numbers as and when the instalments become due. 1 will not raise any objection. If the land remains uncultivated or if it is cultivated, I will pay the amount of Jama without any objection. If I want to give up the numbers,I will pass rajinama in the month of March, 1 will not sell or mortgage the numbers to any creditor. The numbers belong to you.
3. The relations between the parties must be governed by the terms of this document. This is not a Government village, and in view of the definition of an occupant in the Land Revenue Code, which means a holder of unalisnated land, the tenants cannot be occupants. They can only claim to be permanent tenants if they were granted a permanent lease by the plaintiff. The first Court found that the execution of this kabulayat was not proved, bat the lower appellate Court has found it proved. That is a finding of fact which must be accepted It has been contended by the learned advocate for the appellant that Exhibit 40 being a lease from year to year, requires registration. A similar point came before me in regard to the same plaintiff regarding land in another village, and the judgment is reported in Pandu v. Shivshankar das (1928) 31 Bom L.R. 335 I only refer to that case, because the oases on the question of the compulsory registration of tenancies at will are collected there, or some of them. In my opinion, Exhibit 40 is a tenancy at will, because the lessor has the power to eject the lessee. He might even do so on the day after the lease was executed, and that is contained in the sentence, ' I will without any objection, vacate and deliver the said numbers when you demand the same ' It has been argued that the lessee equally has the right to give up the land when-ever he likes, and that will prevent it being a tenancy at will, but every tenant, unless he cares to be a tenant for a fixed term of years, must necessarily be able to give up the land if he wishes. In my opinion, this document, Exhibit 40, is clearly a tenancy at will, and as such it does not require registration. The cases which have been quoted on this point are, Khuda Bakhsh v. Shea DinI.L.R. (1886) All. 405 Khayali v. Husain Bakhsh I.L.R. (1886) All. 198 Apu Budgavda v. Narhari Annajee I.L.R. (1878) Bom. 21 Yousaf Poleologo : (1906)8BOMLR580 Jugjivandas Javherdas v. Narayan I.L.R. (1884) Bom. 493 In addition to these, Jivraj Gopal v. Atmaram Dayaram I.L.R. (1889) Bom. 319 and Ratnasabhapathi v. Venkatachalam I.L.R. (1891) Mad. 271 are quoted in Pandu v. Shivshankardas. If, therefore, the lease does not require registration, and that was a point which was not taken in either of the Courts below, the case must be decided on the contractual relations between the parties which are evidenced by it. It is somewhat difficult to understand what the case of the defendants can be. This is not a case in which they can rely on long possession. Defendant No. 1's father, from whom all the other defendants claim, came into possession very recently, the land being fallow before, and they would seem to rely on a custom by which rights resembling those of an occupancy tenant, namely, the right to hold the land be long as they pay assessment prevails in the village, and reference has been made to various other cases, the judgments in which have been put on the record. Those are oases between the same plaintiff and other tenants. One of them is from the game village. But each case must be decided on the terms of the contract, if any, between the parties and with reference to the surrounding circumstances and the previous history of the land, and as I have already said, in the present case there is very clear evidence that these lauds were fallow. First they were in the possession of another tenant, Then he left them. They became fallow, and they were in the possession of the inamdar at the date of the commencement of the tenancy of defendant No. 1's father. Now no question of custom can arise where there is an agreement between the parties : I have already referred to Rajya v. Balkrishna Gangadhar on that point that the rights of the parties must be determined by their contract, and there is a recent case of the Calcutta High Court in Mahanvniad Ayejuddin v. Prvdyat Kumur Tagore I.L.R. (1920) Cal. 359 where it is held that evidence of custom in respect of tenancies is inadmissible where the custom alleged is contradictory to the terms of the written agreement. In these circumstances, whether or not the plaintiff is the grantee of the soil, so far as these lands were concerned, they are his aheri lands, and be was entitled to dispose of them as he thought fit He has so disposed of them by this rent note, Exhibit 40, and therefore the rights of the parties must be determined by that. Exhibit 40 constitutes a tenancy at will, and certainly does not confer any right upon the defendants, i.e, the father of defendant No. 1 to hold the land as long as he likes provided he continues to pay the assessment. On the contrary he binds himself to vacate whenever demanded. There is, moreover, a special prohibition against alienation, and although the learned advocate for the appellants asks me to construe thesentence. ' I will not sell or mortgage the numbers to any creditor' as meaning that a sale to a third party not a creditor will be allowed, I do not think that is a reasonable construction, and the original Marathi does not bear this out. Defendant No. 1, therefore, had no right whatever to transfer this property by sale to defendants Nos. 2 to 4, and they are liable to be ejected. It has been contended that the tenancy came to an end on the death of the father of defendant No. 1, but that does not improve the case at all for the defendants. Either they trace their rights through the father of defendant No. 1, in which case they can have no higher rights than he, and they are therefore bound by Exhibit 40, or else defendant No. 1 was a trespasser after the death of his father, and the suit having been brought within a year of the sale, they are equally liable to be ejected.
4. This is sufficient for the disposal of the appeal, but inasmuch as several hours have been occupied in arguing the question whether the plaintiff is the owner of the soil or not, I gather that the parties desire to have a decision on that subject I do not know that much practical use is served by that, because this would not be res judicata in a suit by or against any other tenant There have been a number of such suits, as the plaintiff is the grantee of a large number of villages, and it has been brought to my notice by the learned advocate for the appellants that in one case arising from a village under the same grant with which we are now concerned, it is held by the lower Courts that he was not the owner of the soil, and that decision was confirmed on appeal by the High Court, although no judgment was on record. That, however, is not res judicata, and I do not know exactly what the, facts alleged were in that particular case, but to deal with this subject as brieflly as possible-it is more or less of academic interest-the argument which has been put forward by the learned advocate for the appellants is that the original grant by Shah Alam and the subsequent grant from the Peshwa and Holkar not having been produced, we must assume that the grant was not of the soil but only of the royal share of the revenue, and that the word used in the Collector's letter, Exhibit 219, is Am-mal, which means revenue, and therefore the plaintiff has failed to prove that he is the grantee of the soil. Reference has been made to Amrit Vaman v. Hari Govind I.L.R. (1919) Bom. 237 : 22 Bom. L.R. 275 and Rajya v. Bal-krishna GangadharI.L.R. (1905) Bom. 415 : 7 Bom. L.R. 439 which lay down that ordinarily a grant to an inamdar is of the royal share of revenue and the burden rests on the inamdar to show that he is an alienee of the soil, and it is contended that the presumption is that the plaintiff is only the grantee of the royal share of the revenue, and that the failure to produce the sanad must lead to the conclusion that this is so. On the other hand, it is contended for the respondent that the view which was taken by this Court that the presumption is that the grant is only of the royal share of the revenue has been shaken by the recent Privy Council decisions in Suryanarayana y. Patanna in which the Privy Council laid down that there is no special presumption of law, and Upadraehta Venkata Sas-trulu v. Divi Seetharamudu in which it is stated that each case must be considered on its own facts, and in order to ascertain the effect of the grant in that case resort must be had to the terms of the grant itself and to the whole circumstances 80 far as they could then be ascertained. In the present case, as I have already indicated, the original grants from the Mogul Emperor and the Peshwa confirmed by the British Government are not forthcoming, but we have the sanad by the British Government. With regard to the letter of the Collector, Exhibit 219, p. 70, that is a long and involved document, and the fact on which the learned advocate for the appellants has relied are the words at p. 71, 'the whole Ammal should be continued as continued either to fore from the time of the Emperor Shah Alam.' On the other hand there are numerous cases in this document where the word 'villages' is used, and that ' these three villages ' should be continued to the family of the Desai That occurs on almost every page of this document, which covers several pages, for example, at the top of p. 73, ' the villages of Mouje Narayanpur, Mouje Kathare tari Haveli, Harkuli tarf Nitzar, Pargane Nandurbar, these three villages were granted by the Emperor Shah Alam to the Desai ', and at the bottom of p 74, that the ' jahagir villages should be continued as continued heretofore, an order has been issued for the continuance of the said three villages of...There fore the villages should be continued accordingly.'
5. With regard to the sanad, which is at p. 76 (that is the sanad issued by the British Government), the learned advocate for the respondent has pointed out that it is exactly the same as the sanad in Amrit Vaman v. Hari Govind. It is in the same form. Now in Amrit Vaman v. Hari Govind, the villages were grant-ed as Mutalik Deaai watan. In the psesent case the grant is of the Desai and Kango, Pragana Nandurbar. That is they are both hereditary District offices. The word used in the sanad is, ' lands and cash allowances ', and the terms of the sanad are procisely the same an those in Amrit Vaman v. Hari Govind, and it was held in that case that in the case of watan property, the distinction between the grants of the royal share of the revenue and grants of the soil which is admissible in the case of inama and saranjams cannot be made without detriment to the statutory restriction on the watandars pjwer of alienation, and should not be made unless it is clearly justified by the terms of the settlement, and the words ordinarily used to indicate a grant of the soil are 'water, grass, wood (trees), stones, mines and hidden treasure', but the absence of the words cannot be treated as necessarily establishing that the grant is of the royal share of the revenue only, and where a whole village is mentioned in a sanad evidencing a settlement under Section 15 of the Bombay Hereditary Offices Act (Bom. Act III of 1874), it is for the party alleging that a particular survey number of that village is outside the scope of the settlement to prove it, and it was held that the grant in question was a grant of the soil. Now this grant is indistinguishable from the present grant except that in Amrit Vaman v. Hari Govind the previous sanad was produced, which is not the case here. But in view of the circumstances to which I have already alluded, i.e, those set out in the judgment of both the lower Courts, that the grazing fees, the water cess, compensation for land acquired, and permission to take earth from the land are all enjoyed by the plaintiff, and in view of the term 'villages' being used frequently in the Collector's letter Exhibit 219, I do not think the fact that the word 'Animal' is used once in connection with the plaintiff's grant would lead to the conclusion that the learned Judge of the lower Court was wrong in finding that the plaintiff was the owner of the soil. I must, however, point out that this is not really a matter of great importance, because it is not ret judicata, and for the reasons already set out, even if the plaintiff were only the grantee of the revenue, he would still be entitled to eject the defendants, because the rights between them in the case of this particular land in suit are to be determined by the provisions of the rent note Exhibit 40, as laid down in the case in Rajya v. Balkriskna Gangadhar.
6. The result, therefore, is that the decree of the lower Court should be confirmed, and the appeal dismissed with costs.