1. I concur in thinking that the Subordinate Judge must be directed to proceed with the case not only on the ground that if the claim be held to be one in respect of land revenue, it falls within the exception contained in Clause (c) of Section 5 of Act X of 1876, but also because I am distinctly of opinion that the expression 'land revenue,' as used in that Act, does not include either the duties leviable, tinder Regulation XXI of 1827, on the manufacture of spirits, or the taxes on the tap-ping of toddy trees, the levy of which in certain districts was legalized by Section 24 of the Bombay Abkari Act, V, 1878.
2. The word 'land' is defined in Act X of J876 as including 'juice in trees,' and the expression ' land revenue ' includes all sum received or claimable by or on behalf of Government from any person on account of any land held by him. If, therefore, the defendant was legally empowered, as a farmer of duties on the manufacture of spirits to levy a duty on any 'juice in' plaintiff's trees, or if he was authorized by Section 24 of the Abkari Act to levy the tax complained of by plaintiff, and if that taxi was really one on the 'juice in' plaintiff's trees, then, no doubt, such duty or tax would be 'land revenue ' within the meaning of Act X of 1876, and the defendant would occupy the position of a superior holder the plaintiff being an inferior holder.
3. But the defendant clearly had no right, under Regulation XXI of 1827, to levy a duty on the 'juice in' any trees. According to Clause 2 of Section 54 of the Regulation, the term 'spirit' includes 'toddy in a fermented state,' and the term 'manufacture' includes 'the process by which the said fermented toddy is procured whether the fermentation be produced by natural or artificial means.' Toddy in an unfermented state not spirit; and the framers of, the Regulation seem to have thought that some process was necessary to induce fermentation after the toddy was drawn from the tree; for the word 'toddy' is evidently used in the Regulation in its ordinary sense, as meaning the juice of toddy-producing trees after it has been drawn. There is nothing in the Regulation which would warrant the supposition that the word was intended to apply to the sap of, the trees before they were tapped. The process.by which fermentation is understood to be induced, is not the tapping of the trees, but clearly some chemical process, natural or artificial, which practically constitutes the manufacture of the 'spirit,' which the 'toddy' becomes when 'fermented.' It may be that fermentation actually commences, under some natural process, before the sap is drawn. But it was on no such understanding, apparently, that the Regulation was enacted; for a distinction is made In Section 54 between 'toddy' and. 'fermented toddy' or spirit. It was only on the process, whatever it was, by which the unintoxicating fluid which came from the tree became, after some appreciable lapse of time, a spirituous intoxicating liquor that the defendant was entitled to levy a duty under the farm held by him. A duty so leviable would not be land revenue within the meaning of Act X of 1876.
4. Nor, again, would 'a tax on the tapping of toddy trees' be a tax on the 'juice in' the trees. For, till the trees are actually tapped, there is clearly no provision in Section 24 of the Abkari Act which justifies the levy of a tax on their sap. But so soon as they are tapped, and the sap leaves the tree, it is no longer 'juice in' the tree. It is no longer a constituent part of the tree. It at once ceases to be 'land,' just as crops, when reaped, cease to be immoveable property. Moreover, a tax on the process of tapping is not, strictly speaking, a tax on juice at all. No duty legalized under Section 24 of the Abkari Act would, therefore, be land revenue within the meaning of Act X of 1876.
5. If the plaintiff and the defendant really occupy towards each other the positions of inferior and superior holder, it is to be observed that the third paragraph of Section 87 of the Land Revenue Code, 1879, contemplates suits between persons occupying such positions in respect of amounts of rent or land revenue due or levied in excess of what was due. And so it was held in Ganesh Hathi v. Mehta Vyankatrdm I.L.R. 8 Bom. 188 that a mamlatdar's order, under Section 87, does not preclude the parties from having recourse to the Civil Courts, if dissatisfied with it.
6. Again, it is to be noted that under Section 29 of the Abkari Act, which is a later law than Act X of 1876, when any amount is due to any farmer of the right of drawing toddy from any person who has drawn toddy from any toddy-producing tree, such farmer may apply to the Collector to recover such amount on his behalf; and the Collector may, in his discretion, 'recover such amount as if it were an arrear of land revenue.' Such a provision would be superfluous, and would not, probably, have found a place in the Abkari Act if the toddy drawn from toddy-producing trees had been held by the Legislature to be 'land' within the meaning of any existing enactment. And although the farmer has the right of applying to the Collector, the section expressly recognizes his right also to recover the amount due to him 'by suit in the Civil Court or otherwise.' It was not, apparently, the intention of the Act to affect, except as provided by Section 67, any right to seek a remedy by civil suit which might belong either to the farmer or to the person to whom any duty was payable.
7. The costs of this reference should be dealt with by the Subordinate Judge when disposing of the case.