Norman Macleod, Kt., C.J.
1. The first defendant executed two Mulgeni leases, one on September 26, 1917, in favour of Vithoba Madhav, and another on January 27, 1917, in favour of Sheshgiri Upendra, for the suit holding agreeing to pay seventeen Mangis of Kuchgi Talsal rice to each of them for the one-third Malki of each of the suit holding and on default to pay interest. On November 14, 1919, the two Maliks by two separate deeds sold their Malki in the suit holding to the plaintiff, including, in the areas sold, the alluvial accretions also. The plaintiff sued to recover arrears of rent Rs. 195-8-0 and proper rent and profit for the accretions in the suit holding with future interest.
2. Before the plaintiff purchased the land the District Deputy Collector on September 18, 1919, passed an order under Section 63 of the Bombay Land Revenue Code by which certain alluvial land had been offered to the plaintiff's vendors for a certain price together with payment of the annual assessment, The first defendant contended that he was not bound under his leases to pay the plaintiff any proportionate rent for the alluvion. Both the Courts have held that he must pay Rs. 10-8-8 to the plaintiff in respect of the alluvion.
3. The first defendant has relied on his lease according to which the rent fixed was not to be increased. Neither the lessors nor their descendants were to claim for an increase or a decrease of the rent on any ground whatever. If the assessment due in respect of that plot would be enhanced in future then the defendant was to pay the enhancement. This alluvion, in the circumstances of the case, must be dealt with as a separate piece of land. As long as the alluvion does not exceed an acre the occupant is entitled to the temporary use thereof. It is only when the area of alluvion goes beyond that extent that it shall be at the disposal of the Collector, subject to the provisions of Section 63. The Collector under that section can offer it to the occupant, and if the occupant refuses the offer, the Collector may dispose of it. This alluvion, therefore, must be treated, since Sections 63 and 64 of the Bombay Land Revenue Code were put into operation with regard to it, as an entirely separate piece of land, and the tenant would no longer be able to cultivate it as part of his original holding. The landlord in my opinion was entitled, as he had to pay a certain price for it and the assessment to Government, to demand a proportionate rent from the tenant. The tenant can say 'this is not a part of my original holding and I do not want to cultivate the extra land.' But if he insists on cultivating the extra land, then he is bound to pay a proportionate rent. He cannot say 'I shall remain in occupation of this land as an accretion to my holding without paying any further rent.' In my opinion, therefore, the decision of the appellate Court was right and the appeal must be dismissed with costs.
4. I agree.