Stanley Batchelor Kt., Acting C.J.
1. In this appeal there is only one point which arises for our decision, and that is as to the legal position of these parties in regard to the lands which came into the possession of the defendants by purchase from occupancy tenants. It is the plaintiff-appellant's case that these lands have been accessions to the mortgaged property, since the purchase by the defendants from the occupancy tenants was without the consent of the Khot, so that the lands became forfeitable at the option of the Khot. It is not denied that as a matter of fact no consent of the Khot was obtained to these alienations. That being so, it appears to me that the law, as it has been laid down by this Court, is in favour of the appellant's argument.
2. The village in question is Khadkavli, a village in the Kolaba District. In Hari v. Gangadhar (1916) 18 Bom. L.R. 446 the legal relation between Khots and occupancy tenants in the villages of the Kolaba District was considered by this Court. The case was fully argued, and the decision of the Court was that the Khoti tenant in the Kolaba District cannot transfer his occupancy holding without the permission of the Khot, and that, if he does so, the Khot is entitled to re-enter. I cannot follow the learned Subordinate Judge's view that this decision must be restricted to the particular village of Pen from which, as it happens, the litigation in that case came. The decision on its face refers to the Kolaba District as a whole, and ought, I think, to be accepted by us upon that footing. In any event, the learned Judge below himself concedes, what is obvious, that the decision, if not conclusive, is of the greatest evidential value in the present suit. Even upon that footing, it would, I think, serve to sustain the plaintiff's case, seeing that there is not, in my opinion, any counter evidence to balance it. The learned Judge himself has pointed out that the two witnesses called on behalf of the defendants are of no importance, and that estimate of their value has not been challenged by Mr. Shingne.
3. As to the four purchases made by Lele and Bhave and others, the instances are too recent to be of much value, and are themselves not free from suspicion. It is true that the entry in the Record of Rights is at first sight in favour of the defendants, but this record was admittedly not made until 1914, that is two years after the commencement of this litigation, and the defendants' agent admits that it was he who supplied the information upon which this entry in the record was made. The learned Subordinate Judge is no doubt perfectly right when he complains that neither of the parties to this litigation has really struggled to put the Court in possession of the best materials upon which to come to a decision. But in the state of the record as it stands, I can discover nothing to outweigh the force of the decision of this Court in Hari v. Gangadhar (1910) 13 Bom. L.R. 440. I think we must give effect to that decision, and allow the present appeal in respect of the lands purchased by the defendants from the occupancy tenants.
4. In regard to Mr. Shingne's contention that upon that finding his clients should be entitled to be reimbursed under Section 03 of the Transfer of Property Act, the contention must, I think, be disallowed. If, as we hold, the plaintiff is entitled to resume this land, he is entitled to resume it without payment, and the Khot's right to forfeit because the sale was made without his consent, cannot, in my opinion, be fettered by any liability to reimburse the purchaser for the money which he has spent on a purchase which so far as the Khot is concerned is of no validity.
5. Upon these grounds the decree of the lower Court must be modified by the addition of a direction that the plaintiff is entitled to share in the Khoti Nisbat lands forefeited by the defendants since the date of the mortgage, and in the lands acquired by the defendants by purchase from the occupancy tenants. The costs of the partition to be borne by each party in proportion to his share. The appellant must have the costs of the appeal. As to the costs of the trial Court, the trial Court's order will stand.