1. The plaintiff in this suit is admittedly a Kadim Inamdar of the village of Kenjal. He was not a mere grantee of the Government share of rent and land revenue, but a grantee out and out of all the land comprised in his Inam. Subsequently, the remaining rights of the Government to land revenue have been given in Inam to the family of the Rastes. The defendant claims to be a Mirasdar by a tenure antecedent to the grant to the plaintiff. His contention is that he falls within the protection of Section 217 of the Land Revenue Code as it stood before its amendment in 1913. It is admitted that a survey settlement has been introduced into the village of Kenjal. The defendant, therefore, claims that being a holder, he is entitled to all the rights of an occupant in an unalienated village, and the Kadim Inamdar cannot, therefore, enhance his rent.
2. Presented in this form the matter in issue between the parties is res Integra as far as I can discover and has never yet been precisely determined. It may be safely affirmed that prior to, the Land Revenue Code this High Court had held that the alienee of no more than the pecuniary interests of the Government as distinct from their sovereign rights, to use the language of West J. in the case of Prataprav Gujar v. Bayaji Namaji I.L.R (1878) Bom 141, was entitled to raise the rents of permanent tenants whose tenure was anterior to the Inam grant, provided that in doing so he was to be controlled by the general custom of the country and considerations of equity and justice. Such in effect was the finding of Melvill and Kemball JJ. in the case of Lakshman v. Ganpatruv Ballal Sp. Ap. No. 344 of I.L.R. 1876 Bom. 141. (f.n.) to which reference was made by West J. in the judgment I have just mentioned. There can, however, be little doubt but that the decision of Melvill and Kemball JJ. would have been materially affected by the provisions of the Land Revenue Code. I derive no assistance at all from such cases as those of Vishnanath Bhikaji v. Dhondappa I.L.R. (1892) Bom. 475 decided by Bayley Acting C. J. and Candy J., and of Rajya v. Balkrishna Gangadhar, I.L.R. (1905) Bom. 415 : 7 Bom. L.R. 439 decided by Jenkins C.J. and Aston J. The difficulty with which I am confronted was certainly not clearly present to the minds of any of the learned Judges who gave those decisions. In the last case the Court was virtually confined to distinguishing between the rights of alienees of the Government share of the land revenue and rent, in dealing with those in occupation prior to the grant and with those who in respect of the lands which were unoccupied at the time of the grant or had since fallen in and been let out subsequently by the Inamdar as landlord to tenants of his own to enhance the assessment or rent paid by such occupants or tenants. That is not the point of difficulty here. In the case of Nanahhai v. The Collector of Kaira : (1910)12BOMLR707 Chandavarkar and Heaton JJ. came somewhat nearer to the point upon which all the argument here has turned. But while I entirely agree with the judgments delivered by those learned Judges in that case, they are of little value to me for my present purpose, because it is clear that the whole of the reasoning proceeded from the admitted status of the Inamdar as alienee only of the Government share of the rent or land revenue. Where that is so, at any rate until the amendment of Section 217 of the Land Revenue Code in the year 1913, I think there could be very little doubt but that the Inamdar's lights were restricted by the provisions of Section 217 and that he could not have raised the rent of any holder of alienated lands after the introduction of the survey settlement beyond the assessment so fixed.
3. Here, the only real question is whether the alienee of a village or part of a village to whom Government has granted all its-rights in the soil, as well as its other pecuniary interests, is not in a different and freer position than the alienee of the share of royal revenue only. 'Alienated' is defined in Section 3 of the Land Revenue Code and is said to mean, 'transferred in so far as the-rights of Government to payment of the rent or land revenue are concerned, wholly or partially to the ownership of any person.' When I first considered this question under this definition and the terms of Section 217, it certainly seemed to me that it was a fair argument to say that the greater included the-less. If a village in which Government had transferred no more-than its rights to payment of land revenue or assesment was an alienated village, then a fortiori a village in which Government had transferred not only those rights but other rights also must be deemed to be an alienated village. On further consideration I am doubtful whether that process of inference, however sound it might generally be, would be sound in this special connection. There appeared to me to have been reasons why Government for all the purposes of the Land Revenue Code intentionally meant to limit the connotation of ' alienated.' I think it not at all unlikely that where all the sovereigu rights of Government were granted away, the Government never meant any of the provisions of the Land Revenue Code, which is a Code primarily regulating its own rights with the mass of the agricultural assessment paying population, to be applicable at all. I can see no reason why they should be. After the grant out and out of a village or any part of a village to an Inamdar, the natural legal result would be that what was granted to him was entirely at his own disposal to deal with according to his pleasure and on his own terms. Where, however, the Government merely granted its own share of the revenue to an individual, reserving its other sovereign rights, there are obvious reasons why it should have desired to retain some sort of check upon the alienee's powers to enhance the assessment of all prior occupancy tenants. It is true that having regard to Section 216 if such an intention really underlay the definition of ' alienated,' a very large and practical qualification is put upon it by leaving it entirely at the option of the alienee of the royal share of the revenue of an entire village to have a revenue survey introduced or not. Still, I believe that considerations of this kind really account for the very peculiar definition of ' alienated ' and that the out and out alienee was intended to' be excluded from the operation of such a Section as 217. If that be so, then the question would be narrowed down to the general right of an alienee of the soil to raise the rents of permanent tenants even where such permanent tenancies had commenced before the alienation. And the answer to that question is to be found in the earlier cases in which the eminent Judges, who decided them, were not controlled by any of the provisions of the Land Revenue Code.
4. This is in effect what the learned Judge of first appeal below has found, and I have come to the conclusion, after giving the case my best attention, that his judgment is right. I am confirmed in this view by the fact that a very similar question arising between another Kadim Inamdar and a Mirasdar in the same village, the land being adjacent to the land in dispute, was similarly decided in favour of the Kadim Inamdar by the learned Chief Justice and Batchelor J. in 1914.
5. I am, therefore, of opinion that since no complaint is made as to the amount of the enhancement and the appeal is confined to the general principle I have discussed, the decree of the lower appellate Court ought now to be confirmed with all costs upon the appellant.