1. The course of this litigation is described in Balvant v. Secretary of State ILR (1905) 29 Bom. 480 : 7 Bom. L.R. 497. The case then came on appeal before a Division Bench consisting of Russell and Batty JJ., who after a long judgment dealing with various points sent down for trial the issue whether the land in dispute was comprised within the area to which the grant extended or formed part of the unassessed waste excluded from the grant.
2. The District Court has returned a finding that the land in dispute was included in the grant to the Inamdar.
3. The case again came before the same Bench, when it was directed to stand over for one month to afford the defendant an opportunity of producing evidence, if he so desired, in rebuttal of that which had already been adduced by the plaintiffs on the subject of possession.
4. The defendant did not avail himself of this opportunity, and so the appeal now comes for final disposal before the present Bench. The only question before us is whether, having regard to the grant, the Government of Bombay is entitled to declare the land in dispute a reserved forest under Section 5 of the Forest Act: all others points have been decided by Russell and Batty JJ. and they have not been discussed before us.
5. In our opinion the question lying at the threshold of our inquiry turns upon the effect to be given to the remanding judgment of the Bench in Balvant v. Secretary of State. That judgment is, no doubt, binding upon, us quoad all points which are therein specifically decided beyond possibility of revision. But it would, we think, be otherwise in regard to any part of the judgment which can be shown to be grounded on such mistake or error as it would have been the duty of that Bench to correct if it had been brought to notice when the judgment was delivered. In so far as any part of the judgment is based upon an assumption or hypothesis which is now ascertained to be erroneous, it is, we think, competent to us- or rather, it is incumbent on us-to disregard it. and to reopen that portion of the case affected by the error. Now upon the best consideration that we can give to the matter and after carefully weighing all that has been urged by Mr. Raikes, we must adhere to the opinion, which we formed at an early stage of the hearing, that that part of the former judgment which led to the issue whether the land in suit was unassessed waste at the time of the grant, is grounded upon a mistaken hypothesis which should now be discarded. The point is dealt with in the concluding pages of the reported judgment, where the learned Judge speaks of certain land as being excluded, not only from the grant, but in the grant. This land is variously described as waste, or uncultivable waste, or unassessed waste, as if these terms were interchangeable, which we venture to think they are not; but having regard to the reasoning as a whole and to the form of the issue sent down, we, apprehend that the exact distinction upon which the learned Judge decided to insist was the distinction between land which was unassessed waste at the time of the grant and land which was not. This view is accepted by Counsel for the Secretary of State, and is borne out by Counsel's notes of the arguments before the Division Bench. From what source, then did the learned Judge obtain the distinction in question? There can be no doubt that he was under the impression that it was derivable from the terms of the grant itself ; that is the origin to which he ascribes it. No reference is made to the general Jaw in support of the distinction, nor indeed was any such support available, for since Melville J.'s judgment in 1882 the law in this Presidency has always been that a grantee of the revenue is entitled to make such profit as he can out of unoccupied lands; see Ramchandra v. Venkatrao ILR (1882) 6 Bom. 898 followed in Ganpatrao Trimbak Pattwardhan v. Ganesh Baji Bhat ILR (1885) 10 Bom. 112 and Rajya v. Balkrishna Gangadar ILR (1905) 29 Bom. 415. But if we turn to the grant itself, Exhibit 34, we find.no countenance for the distinction in question : what is there given is '' the village,' that is, we take it, the entire village, and in the description following the grant ' waste lands' are expressly included. Indeed upon a careful reading of the material part of Batty J.'s judgment at p. 513 of the report it is clear that he was throughout confusing the grant. Ex. 34, with Ex. 35, the revenue account of the village for the year 1828-29 when it first fell under the operation of Pringle's survey. It was a mere oversight occurring at the end of a long and exhaustive judgment ; and we must, we think, begin our decision of the appeal by removing this misconception and its consequences, This course is facilitated by the remark made by the same Bench in their interlocutory judgment on the second remand, the remark namely, that in the former judgment ' it was not intended to suggest that the parties could either of them claim to have obtained a decision in any measure disposing of questions which they respectively have to meet.'
6. It follows, then, that we must consider the construction of the grant as res Integra upon the point now under discussion, and, that being so, we cannot entertain any doubt as to what our decision should be. That the grant is merely a grant of revenue has been decided, and that decision is binding upon us; but, with that exception, we can see no reason for imposing any restriction on its operation. The 'village' is given to the grantee; no limits or boundaries are stated; and, as we have said, waste lands are expressly included. The only rights excluded are apparently those of Inamdars, Hakdars and village officers, and these are expressed to be excluded. The statement of average revenue following the grant should, we think, be read as mere description, and cannot be taken to limit the universality of the grant to lands then actually assessed. What the Government granted was, we think, the revenue of the village considered as a unit of assessment, and if in the course of time the grantee was able to bring under cultivation land which had previously been uncultivated or even unassessed, it was open to him under the grant to do so and to profit by the new cultivation. This view receives support from the contemporary correspondence between the officers of the Government, and we may point to Mr. Giborne's letter of 13th March 1831 to the Secretary to the Government of Bombay as plainly contemplating the expansion of the cultivated area. And, as we have noticed, this construction involves no new doctrine, but is consistent with what has been the law of this Presidency since 1882.
7. For these reasons we are of opinion that the land in suit cannot be excluded from the grant upon the only ground on which it is sought to exclude it, namely, as having been unassessed waste at the time of the grant and that the right to the revenue arising from it must be held to have passed to the grantee under the grant.
8. This being so, it is not disputed that the Government was not entitled to take up the land in suit for reserved forest, and therefore we accept this proposition as a consequence which needs no further discussion.
9. Though this is enough to dispose of the case, we may add that in our opinion the appeal ought to be allowed even apart from the terms of the grant. The Government has sought to support the decree upon the ground that the land in suit is identifiable as the 3 1/4 khandis 1/2 maund of gairan dungar (that is pasture, hill land) of which the mention occurs in the village records between 1822 and 1829. The argument is that as that land was unassessed waste, it should be held to have been excluded from the grant under the judgment of Russell and Batty JJ. Thus the position depends upon identifying the land in suit with the 3 1/4 khandis 1/2 maund of the records. Mr. Kincaid,. the District Judge, to whom on the remand this argument was addressed, has found that the attempted identification failed; and we are of the same opinion. It is unnecessary to elaborate this part of the case, but we will state very succinctly some of the reasons which have led us to this opinion. In the first place, the words I 'gairan dungar ' are not words descriptive of a certain parcel of land, but are words of enumeration, corresponding to the English expression 'pasture land, hill land,' the phrases being separated by a comma. Then 3 1/4 khandies 1/2 maund cannot by any possibility be reckoned as the equivalent of 648 acres, the admitted area of the land in suit, but amount only to about one half of this area. Moreover, statements in the earlier records from 1822 onwards are of no real assistance; what must be looked to is the state of the land at the time of the grant. At that time the village was subject to Pringle's survey of 1828-29, and in Exhibit 35 we have the statement of revenue for that year. There we find that the 3 1/4 khandies 1/2 maund of the earlier records has disappeared, and the only uncultivable land is entered as 202 acres and a fraction. Deducting various strips of waste appertaining to different survey numbers, the total area assigned to '' pastures, rocky plains &c.;,' is only 28 acres odd, and it is out of the question that this should represent the land in suit. To escape this difficulty Counsel for the Secretary of State is driven to suggest that tne whole of the 648 acres in suit was somehow omitted from Pringle's survey, but that is a somewhat violent assumption and in our opinion ought not to be made. It is not as if Pringle had omitted to reckon pastures and rocky lands; he lias surveyed them, and the result is his figure of 28 acres, and this figure leaves no room for the 648 acres in suit. Thus it seems clear from the survey that at the time this grant was made, the land in suit was not unassessed waste ; it would, therefore, pass to the grantee even under the terms of Batty J.'s judgment. It may be added that both Mr. Silcock, the Collector, and Mr. Shuttleworth, the Conservator of Forests, also formed the opinion that the land was assessed at the time of the grant; andit seems to us that the District Judge, Mr.Kincaid, was fully justified in animadverting upon the various and different positions which the defendant elected to adopt at one time or another in the course of this litigation. But this part of the case need not be pursued further : for the above reason we are of opinion that the appeal would succeed even on the footing of the judgment of the Division Bench.
10. The result is that the decree under appeal must be reversed, and we give the plaintiffs a declaration that though they have no proprietary rights as owners over the land in suit, the defendant had no authority to issue the order including this property in the Government reserved forest, and the plaintiffs are entitled to continue to enjoy the land in the same way as before the order to afforest.
11. It is not necessary to consider the question of granting the injunctions asked for by the plaintiffs against the Secretary of State as the Government through its pleader has given an undertaking not to obstruct the plaintiff's enjoyment of the land in question so long as this decree remains unreversed or unmodified and so long as the land is not acquired.
12. Under the provisions of Section 429, Civil Procedure Code, we give the defendant a period of three months within which to satisfy the decree.
13. The undertaking of the Government will not barit from the exercise of any other power vested in it for the control of such land under the Indian Forest Act, 1878, or otherwise.
14. The appellant will have three-fourths of his costs throughout from the respondent.