1. The plaintiff in this case was a Vatandar Khot of the village of Padhvan in the Mangaon Taluka of Kolaba District, and the substantial question in the suit is whether the plaintiff or the defendants were the owners of certain injali trees standing upon lands which were in the occupation of the vendors of defendants. These vendors, it is now conceded, were not Dharekaris, but held their lands since the introduction of the Survey Settlement as tenants of the Khot, subject to certain rights in the nature of rights of occupancy.
2. The case appears to have been approached in the lower Court on the footing that the Government were formerly owners of the trees growing upon these lands ; and there seems little reason to doubt that that is the true view of the matter. The lands are Khoti-nisbat lands, and it has been held by this Court in The Collector of Ratnagiri v. Vyankatrav (1871) 8 B.H.C.R. (A.C.J.) 1 that by virtue of Dunlop's Proclamation of 1824, the Khots became the owners of the trees standing in such lands. That decision, if followed, is practically conclusive on the facts of the present case, and the same conclusion must follow if the particular circumstances here are considered.
3. There are three persons, and three only, in whom the rights to these trees are conceivably vested, viz., the Government, the Khot and the vendors of defendants, and if it is true, as appears to be the case, that trees were originally the property of Government, then whatever rights Government may have had were conceded by the Proclamation alluded to, and the person in whose favour that grant was made was the person on whose lands the trees were actually growing at the date of the Proclamation.
4. Now it is proved in the present case that before the introduction of the Survey Settlement, the lands were let out from year to year by the Khot on an annual lease or makta. That was the general system of the village, and there is nothing whatever to show that these Khoti-nisbat lands were dealt with on any terms different from those which were applied to the generality of the Khoti lands in the village. If that is so, there was before the introduction of the Survey Settlement no one other than the Khot who can be said to have had any permanent occupation of the lands, or to have been the occupation of the lands in the popular sense, which was the explanation placed on Dunlop's Proclamation in Sadashiv v. The Secretary of State for India : AIR1917Bom38 The Khot's connection with the lands qua Khot was continuous, and as regards the Khoti-nisbat lands he had at least quasi proprietary rights which would suffice to make Dunlop's Proclamation operative in his favour. Therefore, in accordance with the decision in The Collector of Ratnagiri v. Vyankatrav (1871) 8 B.H.C.R. (A.C.J.) 1 the conclusion would appear to be inevitable that the Khot by virtue of that Proclamation became the owner of these trees. If that is so, then there has been nothing to extinguish those rights or to transfer those rights to the present defendants.
5. Apart, therefore, from the question of the annual Kabulayat which as to trees governs the rights of the Khot and of the Government as between themselves, it is clear that the title of the plaintiff here is established. In this view of the case, it seems unnecessary for the plaintiff to fall back upon the Kabulayat, or consider the effect of his having failed to sign that Kabulayat, owing to the difference that has arisen between himself and Government. But if it is necessary to decide that point, it seems obvious that the mere failure on the part of the plaintiff to sign the annual Kabulayat could have this result only, that he would not be entitled for the time being to the right of management of the village. That would not, however, affect any other rights which he might have independent of that right of management, such as the right to timber growing in Khoti-nisbat lands. Put shortly, it is clear that the defendants have made out no right in their vendors, so that in accordance with the decisions of this Court the Khot must be taken to be the grantee of the rights of Government, at all events as regards Khoti Khasgi and Khoti-nisbat lands. It follows, therefore, that defendants obtained nothing by their purchase, and the plaintiff was rightly awarded damages, and an injunction.
6. The decree of the lower appellate Court must be confirmed and the appeal dismissed with costs.
Macleod, C. J.
7. I should like to add one word with regard to the following passage in the judgment of the lower appellate Judge with regard to the rights of the plaintiff as a Vatandar Khot. 'In the absence of a Sanad conferring on him the proprietorship of the village, he cannot claim to be owner of the coil.'Reference was made to Tajubai v. Sub-Collector of Kulaba (1866) 3 B.H.C. (A.C.J.) 132 and Nagardas Sanbhagyadas v. The Conservator of Forests, Bombay I.L.R. (1879) 4 Bom. 264 But the latter case does not support the proposition that a Vatandar Khot cannot claim to be owner of the soil in the absence of a Sanad. Their Lordahips of the Privy Council, in referring to Tajubai v. Sub-Collector of Kulaba, said ( p. 271):
In that case the Government had resumed the Khoti, had granted certain rights to the sub-tenants of the estate, and were willing to allow the plaintiff to take the Khoti again upon certain conditions, namely, that she should be bound by the terms which the Government had entered into with the sub-tenants or holders of the land ; and it was held that she was not entitled to have the Khoti except upon those conditions. The reasons for the decision were that the Knot was not the proprietor of the soil, The learned Judge, who decided the case in the first instance, went very fully into the matter, and held that the Khot was merely an hereditary farmer of the revenue. The reasons are given in the report, and it will be unnecessary to read them. It is sufficient to say that that decision was opposed to the view taken by Captain Wingate to which reference was made from the records of the Government of India.
8. Their Lordships, without expressing any opinion that no Khot is or can be the proprietor of the soil, thought it was sufficiently clear that the proprietorship of the sail is not vested in every Khot.
9. It also appears that Mr. Justice Tucker dissented from the opinions expressed by Arnould and Newton JJ. in Tajubai v. Sub-Collector of Kulaba
10. Therefore there is no general rule that no Vatandar Khot can claim to be owner of the soil. Certainly it would appear to me that with regard to Khoti Khasgi and Khoti-nisbat lands, he is very much in the position of an owner. It was so held in The Collector of Ratnagiri v. Vyankatrav (1871) 3 B.H.C.R (A.C.J.) 1 I think, therefore, that the plaintiff has established his case, considering the land from which the jungle was cut was Khoti-nisbat land, and unless the defendants could satisfy the Court that they were Dharekaris, in whom the ownership of the trees might then have been vested, they were not entitled to succeed.