1. These appeals, with the cross-appeals and the cross-objections, arise out of disputes between certain khots of Kolaba and Government in the same suits which were decided in part by this Court in Ganpati Gopal v. Secretary of State I.L.R. (1024) Bom. 599 26 Bom. L.R. 754. This judgment in the present appeals must be read as a continuation of that judgment, deciding as it does the question left open there for trial, as to the damages due to the khots from Government during the years when the villagea were in Japti by reason of the refusal of the khots to accept a new form of kabulayat containing in part clauses which this Court in that judgment held illegal. We are now concerned with sixty-five appeals by Government in many of which the khots have filed cross-appeals and cross-objections and with two appeals by the khots in one of which Government have filed cross-objections. These appeals are shown in the tables 1 to 6 attached to this judgment. The suits were not consolidated. But the evidence was agreed to be common, and the result is that even in the Paper Book the number of the exhibits can only be described as stupendous even for litigation in India reaching as it does to Exhibits 4060. At the outset we must express our indebtedness to the learned counsel on both sides for the statements which have been of material assistance, and for the arguments which could not have been clearer or more concise.
2. The first point taken for Government is that by the resolution No. 1244, dated February 7, 3 914, Exhibit 1926, Government, acting under their powers under Section 38 of Bom. Act I of 1865, fixed the faida payable by the tenants in cash only and not exceeding eight annas per rupee of the assessment. Section 83 of that Act runs as follows :-
It shall also be competent to such officer (i.e. the Superintendent of Survey or Settlement Officer), with the sanction of the Governor in Council, to fix the demands of the Khot on the tenant at the time of the general survey of a District, and the terms thus fixed shall hold good for the period fpr which the settlement may be sanctioned....
3. The time of the survey settlement of this district was 1902, The settlement-officer did not fix the demand of the khot at that time. Nor was any sanction of the Governor in Council obtained, and the order by Government in 1914 even after consulting the Survey Commissioner is clearly not an order under Section 38. That order can only be made at the time of the general survey, that is, 1902. This is still more clear on reading Section 37 and the repealed Section 36. The scheme of Bombay Act I of 1865 was to confer fixity of tenure and, for the period of the survey settlement fixity of assessment, on the occupancy tenants, the latter being subject to the former. The first thirty-six sections now repealed dealt with occupancy tenants in general over the whole Presidency. Then follow Sections 37 and 88. Section 37 refers to the khoti talukas including the one now in question which was then in the Thana Collectorate and authorises the Superintendent or the Survey Officer to grant a lease for the full period of the settlement in place of the annual agreement. Then follows Section 38 authorising that officer with the sanction of Government at the time of the general survey also to fix the demands of the khots on the tenant. He did not fix this demand at the time of the survey in 1902 nor did he obtain the sanction of the Governor-in-Council, and it is not, in my opinion, open to Government by the resolution of 1914 to assume that the Governor-in-Council possessed in 1911 the power which the statute only conferred at the time of the general survey in 1902 upon the survey officer with the sanction of the Governor-in-Council. I am of opinion, therefore, that the Government resolution of 1914 above in question had no statutory force to fix the faida of the khots in cash or at an amount not exceeding fifty per cent, of the assessment.
4. The question now at issue may be formulated as follows: In assessing the damages during the Japti years, the first question is whether the khots were entitled to claim from the tenants of the Khoti Niabat lands their faida in cash or in kind, and secondly, the amount of this faida. That question depends entirely on the construction of Clause 6, sub-paras. 1 and 2, of Exhibit 933 (in Part II of the Paper Book) which runs as follows:
1. One rupee for assessment in respect of Kharip land and eight annas for faida in all one rupee and eight annaa. Out of this the one rupee of assess-ment is to be taken in cash and for the faida there is to be taken payalis 6 i.e. 1/2 maund of paddy in kind valued at the rate of Rs. 20 per khandi and ten bundles of rice straw for each maund of faida.
2. The whole of the assessment in respect of the Varkas land is to be received in cash and for faida twelve annas for every rupee ; for the same there is to be 1/2 one half maund of grain in kind valued at the rate of Rs. 30 per Khandi;-Out of that 1/2 to be nagli 1/2 to be vari.
We will recover vasul from the tenants as stated above. We will not receive anything more than what is stated in the Dakhala which we will receive in respect of the above lands showing what amount is to be received from a particular tenant.
3. It will be useful to add the Marathi version in the original kabulayat and to add the following Clause 7.
4. Clause 7:-
As to the vasul in kind which is settled to be taken as stated is Sub-clause 2 of the above Clause 6 we will take the said vasul by the measure which may be current in the aforesaid Taluka.
5. The trial Court decided that the Khots were entitled, in the villages where such an agreement used to be entered into, to take their faida in kind at the rate of six payalis on each rupee of the assessment and ten bundles of rice straw on rice land and on varkas land three payalis of vari and three payalis of nagli per rupee of the assessment, and that in respect of the damages during the years when the villages were in Japti, the khots were en-titled to have the corresponding quantities of grain converted into cash at the market rate for that particular year.
6. It is argued for Government, firstly, that the khots are only entitled to take their faida in cash at the rate of fifty per cent. of the assessment on paddy lands and seventy-five percent of the assessment on varkas land. Secondly, that even if it be held that the khots are entitled to take the faida in kind, the amount is subject to a maximum of fifty per cent, of the assessment on rice land and seventy-five per cent of the assessment on varkas land. Thirdly, the rates at which faida in kind can be converted are not the market rates, but are Rs. 20 per khandi of twenty maunds on rice lands and Rs. 80 per khandi on varkaa land.
7. It is contended for the Khots, firstly, that they are entitled to the faida in kind. Secondly, this faida is to be according to the old custom or Mamul Vahiwat which has been allowed in the Ratnagiri District under Act VIII of 1880 and known as Ardhel and Tirdhel, i.e., one-half of the paddy crop on rice lands and one-third of the nagli and vari crops on varkas lands, Thirdly, that even if this contention is not allowed, in any case, they are entitled to the amount as held by the trial Court without any limitation as to the maximum. Fourthly, that in regard to damages this amount in kind must be converted into the current market rate at each particular year as the trial Court has held.
8. It will be plain on a perusal of the particular clause in question that it is not well worded, and it is a matter of surprise that an agreement current over a large part of the District and affecting thousands of tenants, between Government on the one side and the khots on the other, could not be more clearly worded so as to be incapable of founding a dispute such as the present, particularly with the legal assistance open undoubtedly to Government from the district upwards and in this case even perhaps to some of the more intelligent khots. This Court has already observed in Ganpati Gopal v. Secretary of State and in another case to be referred to later, Abdul Rahim v. Pandu (1929) 32 Bom. L.R. 175 under Section 38 of Bom. Act I of 1865, that this particular question was capable of being decided at the time of the settlement by the Settlement Officer with the sanction of Government and decided in terms too plain for dispute or litigation. It is possible, however, that this clause had been taken over from some antiquated document dating possibly from the pre-British days in which the standard was not perhaps clearness but a formula continued in like some sacred Mantra, where reverence depended upon antiquity and was expected perhaps to be increased by obscurity. The result of this unfortunate clause is litigation which must have cost each party very heavily in time and in money.
9. In regard to this clause, taking the original Marathi, the first sentence offers no difficulty whatever. It is common ground that the first sentence means that for each rupee of the assessment on kharip land, the khot's faida should be eight annas, so that the total demand on the tenant should be one rupee sight annaa. I pause to observe that even so, in place of the antiquated Rs. 1-8-0 it would have been simpler to say that the faida due from the tenants to the khots should be one-half or fifty per cent, or seventy-five per cent, of the Khoti Nisbat lands. But it is the second sentence which occasions the real difficulty in the case. Government rely on ' Rs. 20 per khandi' and the khots on the words (sic) and the fact that six payalis at Rs. 20 per khandi work out exactly eight annas in the same manner as six payalis of nagli and vari at Rs. 30 per khandi work out at twelve annas per khandi, i.e., fifty and seventy-five per cents, respectively. It is argued for the khots that the word (sic) coupled with the mention of the rate of Rs, 20 and Rs. 80 per khandi shows that no payment was to be made in cash, but it is in fact a mere paraphrase for fifty and seventy-five per cents, respectively, and this construction is strengthened by the next el. 7, which again recites the words ' in kind ' and refers to the measure which may be current in the aforesaid taluka. It should also be observed that the concluding words ' ten bundles of rice straw for each maund of faida ' are also in favour of the payment in kind and that no price is stipulated for the bundles of straw, and the expression used is not each rupee of faida but each maund of faida.
10. On reading the original Marathi, there is no doubt left in my mind, that the intention of the original author of the clause, in all probability, a person, not acquainted with English and habituated to calculate and express himself not in fifty or seventy-five percentages but in eight annas and twelve annas per rupee of the assessment, was that while Government were to take their assessment from the khots in cash, the khots were to take the faida from the tenants in kind and not in cash. This conclusion is strengthened by the evidence of practice prevalent in these villages. That evidence is entirely in favour of the payment in kind to the khots as in fact was acknowledged by Government in their resolution No. 5405 dated September 17, 1880, Exhibit 1916. On that evidence we have no hesitation in holding that where no dispute occurred between the khots and the tenants, the payment of faida was in kind and the agreement such as Exhibit 933 was in force. Where disputes occurred and were carried up to the Courts, in one or two stray cases referred to in the judgment appealed against, the faida might have been paid in cash, It is alleged that even in such cases the number of suits in which the khots obtained their faida in kind in the Courts is far larger as appears from Exhibits 3272 to 3301. Unfortunatety these documents have not been translated by or for the respondents khots, and we are only referred to them at the conclusion of the argument and had no opportunity of referring to them in the original.
11. On the finding that the khot is entitled to the payment of his faida in kind, the rate follows as a matter of course, viz., from the clause itself half a maund of paddy and five bundles of rice straw per each rupee of assessment on rice land and three payalis of nagli and three payalis of vari on each rupee of assessment on the varkas land, In regard to the claim of the khot that during the years of Japati they should be entitled to go back to the old rates of Mamul Vahivat, viz, Ardhel and Tirdhel, we are re ferred to Abdul Rahim v. Pandu, for the khots, and to Secretary of State for India v. Sadashiv Abaji I.L.R. (1911) Bom. 290 14 Bom. L.R. 77 for Government. It is not disputed that after the survey settlement from 1870 down to 1914, that is to say, for a period of forty-five years the agreements were in the form Exhibit 933. But if Government had not offered the new form which this Court in Ganpati Gopal's case held to be illegal, there can be no doubt that the old form Exhibit 933 would have continued. Both the cases above can easily be distinguished. In. Secretary of State v. Sadashiv the new survey settlement was in force, but Government had not yet sanctioned under Section 38 of Act I of 1865 the fixed rate of the faida payable by the tenants. But it was held that there was indication that Government desired to continue the old rate of faida while they were considering the fixing of the new. The decision in Abdul Rahim v. Pandu (1929) 32 Bom. L.R. 175 refers to Secretary of State v. Sadashiv Abaji and distinguishes it on two grounds: firstly, that there was actually no new settlement in force revising the assessment due to Government from the khots, and, secondly, that there was actually no evidence whence the intention of Government could be inferred either way. In the present case, we are clearly of opinion that but for the offer of the new form both the parties would have adhered to the old form with Clause 6 and that the khot had no intention of suggesting nor would Government have accepted the Mamul Vahivat or referred to Ardhel and Tirdhel. That claim of the khots fails.
12. The next question is as to the rate at which the payment of the faida in kind should be converted into cash for the assessment of damages. Here again the words ' eight annas for faida in all one rupee eight annaa' undoubtedly offer some difficulty. Had the word 'maximum' been used, the contention for Government would have had some substance. As I have already held, the rate of Rs. 20 per khandi read in conjunction with the previous words are in fact a paraphrase for the words eight annas for faida used in the first sentence. It is possible that a rupee worth grain was in the days of the Peshwas more stable than it is now, and the original author of this clause had probably taken this, as I have said above, from some ancient document, and the fact that the rates could change and normally would rise was probably over-looked. On the clause as it stands, it is not, in my opinion, possible to hold that the tenants could insist on the payment of such amount as would be equivalent to the rate of Rs. 20 per khandi whatever the market rate might be. On the contrary, as I have stated above, the practice appears to have been to take the faida in kind leaving it thereafter to the khot to sell if he chose, which he could only do at the current market rate. It appears that this was the practice after the survey settlement though the present form came into use even as early as 18674868. From the Khata Vahi of that date, Exhibit 3331, at page 619 in the case of the village which was under Japti, the then Mamlatdar appears to have converted the faida of the rice land at the rate of Rs. 18 per khandi, nagli at Rs. 20 per khandi, and vari at Rs. 21 per khandi. On the question of the rate, therefore, I agree with the trial Court that in regard to damages the knots are entitled to have the grain converted into the market rate of rice, straw, nagli and vari current for the particular year for which the damage is to be assessed.
13. This concludes the main question in dispute. Certain subsidiary points have, however, been raised in certain appeals and with these I proceed to deal. It should be premised that the khoti is divided amongst several co sharers and that only some khoti sharers and not all were the plaintiffs in the suit. All the plaintiffs did not appeal to this Court in the litigation in which Ganpati Gopal's case was decided. But when that litigation proved successful, the khots who were either plaintiffs or who had been the defendants applied on remand to the District Court to be brought on the record as the appellants, and that application has been in almost all the cases granted. In other cases the appellant died and his heir has been brought on the record after the period of ninety days allowed by the law. In some cases the period has in fact gone beyond seven or eight years, a procedure to which an objection is taken on behalf of Government.
14. It should be observed that under the present Code an order setting aside an order of abatement is not appealable. But it is contended that when the appeal itself was argued on the merits, it was open to Government as the appellant to raise the question of the wrong order setting aside the order of abatement: Sankali v. Murlidhar I.L.R. (1890) All. 200 2 Bom. L.R. 649 and Jamsetji v. Badabhoy I.L.R. (1800) Bom. 302 2 Bom. L.R. 649 The facts of the present case are peculiar. A large number of khoti co-sharers were involved. The litigation lasted for over ten years. Many died leaving widows and minor sons. All these factors justify the exercise of the power to excuse the delay possessed by the trial Court; Therefore, unless some very strong grounds appear, we should be loath to interfere with the exercise of this power by the trial Court.
15. Next, certain khoti co-sharera, who were defendants, have been on remand made co-plaintiffs, under Order I, Rule 10(2), Civil Procedure Code. Again, all the plaintiffs had not originally appealed. Order XLI, Rule 4 and Rule 33 give us ample power to make a proper order in the appeal, and on the wording of the order of this Court in appeal as in Ganpati Gopal's case it appears to us equitable that that power should be exercised in favour of both khoti co-sharers who were originally parties, whether as the plaintiffs or the defendants, even though they might not have appealed in the first instance. For these reasons I would dismiss the objections by Government in respect of the khots, whether of the plaintiffs who have not appealed but were subsequently added, or of the defendants who did not appeal but were subsequently made co-plaintiffs, or of the heirs who were allowed to be brought on the record after the period of ninety days.
16. The second objection by Government is in regard to the khoti nisbat lauds in the possession of the khoti co-sharers. It was argued that no faida should be allowed on such lands. The argument, however, was not seriously pressed. Obviously the khoti nisbat lands are liable to faida, though in the cases where these lands are cultivated by the khoti co-sharers, those co-sharers may ultimately recover their portion of the faida due to them from the managing khot. These lands, however, cannot escape the liability for faida and cannot, therefore, be excepted from the assessment of damages.
17. The third objection is in, regard to certain villages where the loss of crops occurred through fire. Government remitted the assessment on this account and claim that no assessment being recovered by the khot, the khot as the farmer of the revenue is not entitled to the faida in turn from the tenants. However equitable the reason, there is no statutory authority or clause in the agreement under which the khot can be compelled to forego his faida in case of loss by fire, and whether Government gives up the assessment or not. That objection, therefore, in the case of five appeals fails.
18. The fourth objection as regards the transfer of shares or a portion of shares pending the litigation was not pressed and need not, therefore, be considered.
19. The objection in F. A, No. 109 of 1928 was not pressed. That appeal must, therefore, be dismissed on that point, while in F, A. No. 94 of 1928, in which the tenant purchased a khoti share, such a person is obviously not exempted for the khoti nisbat land which he cultivated; and such a land by reason of the purchase of the khoti share by the tenant cannot, therefore, be excepted from damages.
20. The last point taken for Government is in two appeals F. A. Nos. 131 and 139 of 1928 which arose out of suit No. 68 of 19,8. The facts were that the co sharers in the khoti had 0-2-8 share in the village. The other sharers did not join in the suit, On the contrary from 1917 to 1921 some of them passed kabulayats and managed the village without the plaintiff's consent. The plaintiff fought the. suit up to the High Court, The khot nevertheless claimed damages although the village was not under attachment. The lower Court has held that it was not the primary duty of Government to choose any sharer as the managing khot with the right vested in the whole body of the khots, and it was only on their default that the right of Government to choose the managing khot came into play, and accordingly it awarded damages. The right to be the managing khot is ordinarily settled by agreement and by rotation among the body of the khoti co-sharers. But in case of a dispute the Collector gives a kabulayat to the khot whom he deems best. Had the difference between the co-sharers themselves been of an ordinary character, this procedure would have been followed, and the plaintiff would have recovered his faida from the person who was actually the managing khot and had passed a kabulayat to the Collector and had recovered the faida. But in the present case the difference between the present co-sharors was whether the new form offered by Government and ultimately held illegal by this Court in Ganpati Gopal's case should or should not be accepted The nature of the original dispute between the co-sharers does not, in my opinion, make any essential difference in the liability as between the khoti co-sharers themselves. It is not denied that the persona who were actually the managing khots have recovered their faida from the tenants, It is they, therefore, who are primarily responsible to any co-sharers such as the plaintiff who may not have received the faida. Under the decision of this Court in Ganpati Gopal's case, the plaintiff was in the right and the other co-sharers in the wrong in the view they took, as to whether they were or were not bound to accept the new form. But this does not affect the conclusion, as the faida for the years in question had been actually taken by the managing khot or knots who passed the kabulayat, and it is they and not Government who are liable to the plaintiffs respondents in appeal No. 131 of 1928 for those faidas. Accordingly I would allow the appeal on this point and reject the claim of the plaintifFs khots for damages during the years when the village was not under Japti but was under the management of the other co-sharers.
21. In the last appeal there are only two co-sharers each with an eight annas share. By agreement each managed every alternate year. Also by agreement, instead of dividing the faida each year, each retained the entire faida for the year of his management. By reason of this agreement the plaintiff claims the entire faida for the year in dispute. I am unable to see how such an agreement between two co sharers can be binding on Government or render them liable to pay to the plaintiff the entire faida instead of the half corresponding to the plaintiff's share. It should be observed that this suit like the other suits was not brought by any khot in his representative capacity as the managing khot but was brought by each khot in his individual capacity to the extent of his share in the khoti village. Accordingly I would allow appeal No. 189 of 1928 and declare that the plaintiff is entitled to damages to the extent of his half share in the faida and not of the whole.
22. This disposes of all the appeals by Government together with the cross-appeals and the cross objections by the khots. There are, however, two appeals by the khots which may shortly be disposed of, In F. A. No. 189 of 1928 the facts are as follows. In 1921, after the decision in Ganpati Gopal's case, Government offered to the plaintiff, who was a co sharer in the khoti temporarily the form of Kabulayat of 1914 ponding the preparation of a form to carry into effect the decision in Ganpati Gopal'a case, as appears from the Collector's letter Exhibit 3368 of December 24, 1924. That offer the khot refused, From his own pleadings it is clear that he insisted on an amended kabulayat which, in his opinion, restored the khot to his old right as declared by the High Court judgment. On his rejection the other co-sharera, who were offered the old form of 1914, accepted it, managed the village, and levied the assessment and the faida from the tenants of the khot nisbat lands notwithstanding the levy of the faida by the actual managing khot who in 1924 accepted the form of 1914. It is contended for the plaintiff khot in this appeal that he was justified in refusing even the old form and that Government was wrong in offering the management to others in the old form and he is, therefore, entitled to the faida from Government. As I have already stated above, in a different case, the fact that Government was wrong in offering the new form before this litigation commenced does not, in my opinion, justify the plaintiff in refusing the form of 1914, That form had been accepted by him and his predecessor from 1869 onwards, and but for the offer of Government of a new form and as it was held illegal, the old form would undoubtedly have continued whether with his management or that of another co-sharer. And inasmuch as the faida had actually been levied by the managing khot other than himself for these years, whatever the liability of the managing khot for that year to the plaintiff for the latter's share of the faida, Government was not liable. The conclusion of the trial Court is, therefore, correct and the appeal, in my opinion, fails.
23. In the result, therefore, on the main point all the appeals fail with the exception of appeals Nos. 131 and 139 of 1928 which must be allowed and the plaintiffs' claim for faida dismissed in the former appeal and allowed to the extent of fifty per cent, only in the latter appeal.
24. The cross-appeals and the cross-objections by the khots also fail and are dismissed.
25. In regard to costs, the order will be as follows: In the appeals by Government, where no cross-appeals or cross-objections have been filed on behalf of the khots, the appeals will be dismissed with costs against Government.
26. In the appeals by Government where cross-appeals and cross-objections have bean filed each party will pay its own costs.
27. In First Appeals Nos. 131 and ]39 the faida was admittedly in cash. The main question decided at the outset of this judgment did not arise and these appaals will be allowed with costs in favour of Government,
28. The appeals by the khots where there are no cross appeals or cross-objections by Government are dismissed with costs.
29. The appeals by the khots where there are cross-appeals and Cross-objections by Government are dismissed, each party to pay its own costs.
30. In view of the elaborate and detailed judgment delivered by my learned brother, it is not necessary for me to go into the details, and I will confine myself to dealing with the principal point in this group of appeals, viz., the construction of the clause in the kabulayat referring to the levy of the faida from the tenants of the khoti nisbat lands, It must be remembered that the present proceedings are in fact a continuation of the suit which was decided in Ganpati Gopal v. Secretary of State I.L.R. (1924) Bom. 509 26 Bom. L.R. 784 and such principles as are laid down in that judgment and such points aa were decided there are no longer open to argument. This is of some importance in the present case, because both Government and the khots have put forward as part of their case certain arguments which, in my opinion, are not open to them in view of the judgment referred to above.
31. The case was sent down by this Court in the judgment in Ganpati Gopal's case for the purposes of fixing the damages which Government were ordered to pay to the khots for the years during which the villages were under attachment. That attachment having been held to be illegal by this Court, the liability of Government to pay the damages is not in question. It is admitted that during the years of attachment they recovered only the assessment and a small levy for attachment expenses, but they did not recover from the tenants the faida which the khots had the right to receive, and the only question in this appeal is on what basis should the damages be calculated. The khots have put forward two cases, the first being, that they are entitled to fall back on what is called the mamul vahivat for the purpose of estimating their dues from the tenants irrespective of the kabulayats which were in force from 1869 to 1914. That is an extreme case they put forward, and they have also put forward as the main basis of their case that if that view is not accepted they are entitled to recover the faida in kind at the market rate of the grain in question during the years of the attachment. While Government have contended that they are only liable to pay the faida calculated at eight annas per rupee of the assessment in cash, i. a, fifty per cent, of the assessment and also have put forward an alternative case that by virtue of the resolution of 1914 fixing the faida at eight annas or fifty per cent, per rupee of the assessment to be paid in cash the question is concluded. Both these cases, viz., that put forward by the khots that they are entitled to fall back on the mamul vahivat during the years of the attachment and the case put forward by Government that by virtue of their resolution of 1914 fixing the faida at eight annas per rupee of the assessment to be paid in cash, would obviate, if either view were accepted, the necessity of construing the clause in the kabulayat with which a greater portion of the arguments have been concerned. I cannot my self see any reason why when for nearly fifty years the kabulayats were regularly signed every year fixing the faida at a certain rate, it should be held that this was not the custom, that these were not the customary kabulayats, and that the khots were entitled to go behind them and fall back on the mamul vahivat which was in existence before 1865. But a reference to Ganpati Gopal v. Secretary of State would show that it has been held by this Court that the old kabulayats were in force up to 1869 by which the rights of the parties were to be determined, and that will equally apply to the contention put forward by Government that by reason of the resolution in 1914 they were entitled to give the go-bye to this kabulayat. At page 611 of the report in Ganpati Gopal's case it is stated: 'It follows than that the Government are bound to present a Kabulayat in the old form for the plaintiff's signature and on his signing it he will be entitled to recover possession of the village,' That judgment will show that this kabulayat was in force up to 1914, and in it the rights of the khots and Government are clearly stated. The contention of the khota, therefore, that on the attachment of the villages they were entitled to fall back on what is called the customary mamul vahivat to the exclusion of the kabulayat, is, in my opinion, untenable, and equally the contention on the part of Government that by their resolution of 1914 they were entitled to go behind the terms of the vahivat is unsustainable in view of the decision of this Court in the case referred to above. Section 38 of the Survey Settlement Act (Bom. Act I of 1885) is clear showing that Government have no power to override the customary right of the khot except by the arrangement entered into by the Superintendent of Survey at the time of the introduction of the survey, which in the present case occurred in 1002. The result is that in order to determine on what basis the damages should be calculated, we have to consider the clause in the kabulayat which refers to the faida, viz., el, 6. There are two specimens of the kabulayat on the record at pages 200 and 296, and I am informed that the Marathi in each case is the same. But the translation at page 290 is, in my opinion, clearer than that at page 296. I will, therefore, refer to it. This clause has been already translated in the judgment of my learned brother, and I need not, therefore, repeat it. But the difficulty which has arisen and which has probably given rise to this case is that two parts of the clause are not really consistent. It is quite clear that a distinction is drawn between the assessment which is to ba paid in cash and the faida which is to be recovered in kind, The first part of the clause provides for the recovery of the faida to the extent of fifty per cent, of the assessment, that is, in the case of the rice lands, viz, eight annaa in every rupee of the assessment and in the case of the varkas lands at seventy five per cent., viz., twelve annas in the rupee, and it is stated in the plainest possible language that the faida is to be recovered in kind. In estimating the amount to be recovered, the standard of Rs. 20 a khandi for rice and Rs. 30 a khandi for nagli and vari is stated. Unfortunately, in drafting the terms it does not seem to have occurred to the person responsible that the price of grain varies, and, therefore, what was worth eight annas at the time when the kabulayat was signed might be worth a rupee in the following year, and one rupee two annas in the next year, and so on. Therefore, it became necessary that as the price of grain varied the amount recoverable from the tenants in kind varied as to its cash value. Really the whole of the argument in this case depends on two points, the khots relying on their right to recover a fixed amount of grain, whatever its value might be, Government relying on the first part of the clause in which the amount recoverable as the faida was stated to be fifty per cent, of the assessment in the case of the rice lands and seventy-five per cent, in the case of the varkas lands. In whatever way, therefore, this clause is construed, there is bound to be an inconsistency between the amount of fifty per cent, of the assessment and the cash value of grain that is supposed to represent it, whenever the price of grain varies from the standard laid down in the clause, viz., Rs. 20 per maund. No provision has been made in the clause for any variation in the amount of grain according to the price. It is undoubted that under the clause, the khot has the right to recover the faida in kind, i, e., in grain. Instances are on record to show that during the whole period from 1669 to 1914 this practice had been recognised by Government in spite of complaints by the tenants as shown in the Government resolution 1244 dated February 7, 1914, Exhibit 1926, and there is further evidence on the record that the faida had been recovered according to the various rates. I am of opinion that in construing this clause that portion which gives the khot the right to recover the faida in grain must prevail, and to hold otherwise would lead to inconvenient results as in some years it would be necessary to recover the grain at more than one payaii and in Borne years less. Inasmuch as under the clause the right of the khot to recover the faida in grain is undoubted, it follows that during the years when the villages were under attachment, if the khots had been themselves in the management they would have recovered the faida at the rate laid down in the kabulayat, viz., half a maund of paddy and ten bundles of rice straw in respect of each rupee of the assessment of the kharip lands and half a maund of grain in respect of each rupee of the assessment on varkas lands. And during the years under attachment it was equally the business of Government to recover the faida at the same rate as they stood in the shoes of the khots. It is to be further observed, as has already been pointed out by my learned brother, that in addition to the half maund of paddy recoverable per rupee of the assessment on kharip lands ten bundlea of rice straw for each rupee of the faida are further to be paid by the tenant. Now the value of the rice straw may be small still it amounts to something, and therefore the addition of the bundles of straw will disturb the balance between the half maund of paddy and eight annas per rupee of the assessment. If, as has been calculated, half a maund of paddy at Rs. 20 per khandi is equivalent to eight annas, then the ten bundles of straw must be something more than eight annas, and this leads me to the conclusion coupled with the fact that the price of grain varies, that this part of the clause referring to the price of paddy is not an accurate calculation but was only introduced for the purpose of a convenient calculation, However that may be, there is no doubt that for nearly fifty years the khots had been recovering their faida in kind from the tenants according to the amounts laid down by Clause 6, although in a great many of those years owing to the rise of prices, the amount so recovered must be in excess of fifty per cent, of the assessment, and in spite of the protest by the tenants, to which I have referred already, Government up to the time of the attachment of the villages in 1914 have refused to make any alterations in the system. In these circumstances, I have no doubt that the view of the learned Joint Judge is right that the damages should be calculated on the basis of the amount of grain which Government should have recovered under Clause 6 of the kabulayat calculated at the market rate of the years in question. Therefore, the appeals should be dismissed with the exception of those which have been already referred to by my learned brother in which certain other considerations arise.
32. So far as the minor points are concerned, I do not think it necessary to add anything to what has already been said.