Norman Macleod, Kt., C.J.
1. His Lordship after dealing with the facts continued: Then there is one error which the Collector and the lower Court have made. It is very likely that the mistake was not pointed out to either of them, but the land has been valued on instances of sales of what we may call the tenant's rights, and in order to value the freehold, that is to say, the value of all interests in the land, something in addition would have to be awarded, because the purchaser of the tenant's rights, to acquire the freehold, would have to redeem the rights of the Khot. Instead of adding something on to the valuation of the tenant's rights, as the value of the Khot's interest, both the Collector and the Judge have deducted out of the tenant's interest the value of the Khot's interest. In this case it is a very small amount. The rent paid to the Khot is only fourteen annas, and we may say that for a payment of Rs. 25, the tenant could have redeemed all outstanding interests of the Khot and so obtained the free-hold. The amount may seem trivial but an important principle is involved which to our knowledge has been consistently ignored in arriving at the market value of all interests in land to be acquired. The value of: the interest of the superior holder must be included in the award and not deducted from the value of the occupant's interest. So we increase the award by Rs. 25.
2. Then we have got to consider whether the award by the trial Judge of one-third of the compensation payable for the tenant's rights to the Khot was correct. Undoubtedly in the case of warkaa or bhati land in Salsette, it has been a recognised custom to divide the compensation between what we may call the occupant and the Khot in the proportion of two to one. But that has been due to the fact that in the case of such lands it is extremely difficult to define and ascertain the value of the respective interests of the Khots and the occupants, with the result that a rough and ready method of division has been adopted for want of a better. In many case's the claimants against the Khots can hardly be called occupants. The claims are based on the fact that they are occupants of certain defined plots of land for the purpose of cultivating them, so that by reason of such rights as occupants they are entitled to other rights over the adjacent lands either for the purposes of grazing or of gathering tab materials. It is not generally shown that in such cases the occupants of cultivated lands have any denned area of warkaa or bhati lands allotted to them, and so in order to divide the compensation between the Khot and the persona who have the right of user, owing to their position as cultivators, it has been found a convenient compromise to divide the compensation between them in that proportion. But it is entirely different when you find a tenant in occupation of a defined area of land, and paying assessment for it. Then undoubtedly he has a right to possession of all that area. Although this village has never been officially surveyed, it was surveyed in a rough sort of fashion in anticipation of an official survey, and we have it in evidence that in the Khot's register there was a Khata of Govind Bapuji which contained the names of various Survey Numbers (including the Survey Numbers in reference), the purpose for which the lands were used, and the assessment paid for them, that Govind Bapuji had gold a portion of the land appearing in his Khata to the present claimant, and also that there had been proceedings with regard to this land with the result that the claimant was held entitled to possession. The result must be that the claimant was the occupant of the whole land acquired, and entitled to remain occupant, provided he paid the assessment; while the only right which the Khot tad was to be paid the assessment. He could not possibly with any chance of success have filed a suit for possession as long as the assessment was paid. Therefore this case has no resemblance whatever to those other cases in which the compensation money has been divided between the Khot and the occupants'in the proportion of two to one and if it is suggested that in every case of Khoti land in Salsette, that is the proper way of apportioning compensation, then we must very decidedly dissent from such a proposition. It certainly could only be made applicable in the case of warkaa or bhati lands which are not surveyed, and which cannot be considered to be in the exact occupation of any particular tenant.
3. Therefore the result of the decision is that an extra amount of Rs. 25 plus fifteen per cent, must be awarded, and that will go to the claimant Khot, while the entire compensation awarded by the Collector and the Joint Judge will be paid to the claimant Gajanan Vinayak.