1. This suit relates to the right to some teak trees which grew on certain Khata lands in the Khoti villages of Girne and Nanavali in the Mangaon Taluka of the Kolaba District. These trees were sold by the Government to the Khatedars and were cut and removed by the latter. The Khots claimed the proceeds on the ground that they were the owners of the trees. They also claimed alternatively one-third of the proceeds on the strength of a clause in the Kabulayats which they signed year by year. They made the Secretary of State for India in Council the sole defendant, having previously unsuccessfully brought suits against some of the Khatedars.
2. The two villages of Girne and Nanavali are Khoti villages. In 1865-66 a Survey Settlement was introduced into these villages and under the provisions of Sections 37 and 38 of Bombay Act I of 1865 the position of the tenants was secured. A Kabulayat for the period of the settlement was not given to the Khots who as before signed annual Kabulayats. Later, in 1902, when a Revised Settlement was made, the position of the tenants continued to be secured and Kabulayats continued to be signed annually by the Khots. These Kabulayats are, except as to details, substantially the same as that set out in the report of the case of the Secretary of State for India in Council v. Sadashiv Abaji Bhat (1911) 14 Bom. L.R. 77 and contained a clause similar to Clause 10 there set out. It is under this clause that the Khots claim in the alternative one-third of the proceeds. The Government Pleader who appeared for the respondent-defendant admitted that this alternative claim was in itself irrefutable, though he argued that it must in this case be dismissed on the technical ground that due notice of the claim was not given as required by Section 80 of the Civil Procedure Code.
3. Prior to the Settlement of 1865-66 annual Kabulayats were signed which were materially different from those subsequently approved and which did not contain any clause relating to trees. When the first of the Kabulayats was signed we do not know but they were an annual incident for a good many years prior to the Settlement. I have spoken of the lands on which the trees stood as Khata lands because at the Settlement they appear as Falni Numbers incorporated in survey Numbers, each Falni Number bearing a consecutive number, being of a stated area and bearing a definite assessment; and each Falni Number was entered in the name of a particular person. Prior to the Settlement, except possibly for a short period between the Survey and the Settlement, the lands in question formed part of what is still described as Varkas land. This Varkas land was then unsurveyed and not assessed at any definite rate. The Khots paid a lump assessment for the whole Varkas land year by year, for there was, and for long had been, a certain amount of cultivation of the land ; and in respect of it the cultivators paid to the Khots the customary share of the produce.
4. The facts I have so far stated are either admitted or so clearly appear from the record as to be really outside the field of controversy.
5. Another important circumstance equally incontrovertible is that the villages of Girne and Nanavali were included in the area to which Dunlop's Proclamation of 1824 applied.
6. The case made for the plaintiffs in the trial Court is thus stated in the District Judge's judgment:-'The plaintiffs claim title to the timber or to the portion of the sale proceeds of the timber on four different grounds. First, they say that as Vatandar Khots of the village they are entitled to all the timber trees in occupied or waste land not being Government forest. Secondly, they allege that they are entitled to them by virtue of Mr. Dunlop's Proclamation. Thirdly, they aver that the trees having been once felled in 1862 they are entitled to the aftergrowth under certain Resolutions of Government by which the right to after-growth has been conceded to the occupants and fourthly, that under the Kabulayats they passed to Government they are entitled to one-third of the sale-proceeds of the timber for doing duty in connection with the watching of the jungle.' The District Judge held that the first contention failed as the Khots are not proprietors of the soil. That is indubitably true in this case, as the Khots do not occupy a position better than that of the Khot in the case of Tajubai v. The Sub-Collector of Kulaba (1866) 3 B.H.C.R. 132.
7. He held on the evidence that the third contention was not made out. I think that the evidence is almost conclusive that there was not a previous cutting in the lands in suit in or about 1862 or at any other not very remote date. This part of the case was realized by the appellant's pleader to be very weak and was not for it could not be strenuously pressed.
8. The main contest both in the Court below and here turned on the application and effect of Dunlop's Proclamation. In the trial Court the decision was against the Khots.
9. The alternative claim also was rejected not as I gather on the merits but on the technical ground that due notice of the claim was not given.
10. So the suit was dismissed with costs and one of the Khots has appealed.
11. As I have already indicated the only matters which demand our further serious consideration are: (1) the application and effect of Dunlop's Proclamation; (2) the effect of the Kabulayats both as to the main claim and as to the alternative claim; and (3) the question of notice.
12. I will deal with the second contention first and will assume that the appellant has a reasonable chance of establishing that in virtue of Dunlop's Proclamation the right to the trees was his. Nevertheless the right was not an established but an uncertain right and in any event was a right which the Khots could bargain away. It scorns to me that they did for the time being bargain it away or surrender it when they signed the Kabulayat; for the legal relations between the Khot and the Government for the time being are those established by the Kabulayats. It is, however, said on behalf of the appellant (the Khot) as was said in the case of The Collector of Ratnagiri v. Antaji Lakshman I.L.R. (1888) Bom. 534, 548, that 'the Kabulayats... can only be regarded as formal agreements by which the Khot engages to make good the fixed sum at which the revenue is assessed.
13. There may be cases in which the Kabulayats are mere formal documents, but there are others in which they are not: witness the case of Nagardas Sanbhagyadas v. The Conservator of Forests, Bombay I.L.R. (1879) Bom. 264, which went up to the Privy Council, and also the case of Secretary of State for India in Council v. Sadashiv Abaji Bhat (1911) 14 Bom. L.R. 77. The latter seems to me to be a case of the greatest importance- though it is not reported in the I.L.R. and was not referred to in argument until wo ourselves called attention to it.
14. In the case before us Kabulayats wore signed annually by the Knots for many years ; they are the only written evidence of the conditions on which the plaintiffs have the Khoti management of the village. The terms of the later scries of Kabulayats were arrived at after the Survey Settlement of 1865-G6 and we are told have not since been materially varied. For practical urposes the Khots cannot exorcise the management of the village unless they sign the Kabulayat, for, on refusal to sign, the Government have the power to attach and usually do attach a Khoti village. On their side therefore the Khots obtain the management of the village and so much of the dues paid by the cultivators as are Khoti Faida; on the other the Government receive from the Khot the assessment and secure to the cultivators certain valuable rights by reason of the conditions stated in the Kabulayat. The Kabulayat is the result of consideration of their rights by each side and each side has something to gain and lose in the matter. If he so choose the Khot can refuse to sign the Kabulayat and can stand on his own rights as Sadashiv Abaji Bhat did (The Secretary of State v. Sadashiv Abaji Bhat (1911) 14 Bom. L.R. 77. But if he signs the Kabulayat he is bound by its terms so long as it is in force. There was a Kabulayat in force when the trees were sold and cut. That Kabulayat by Clause 11 provided that as to teak trees in lands such as those in suit one-third share of the proceeds was to go to the Khots, They had thus bargained their dubious right to the whole proceeds for a certain one-third. It was argued that the Khots' right to the trees remained unaffected by the Kabulayat. But it is not, as it seems to me, open to a party to an agreement to repudiate the arrangement, because he thinks it is turning out unfavourably to him. I do not myself doubt that the agreement as to trees was intended to and did cover the case of trees on the lands described as Varkas ; indeed to me it seems that the Kabulayat was intended to prevent such a dispute as that which has arisen in this case. Therefore as between the Khot and the Government the matter in dispute is in my opinion concluded by the Kabulayat and the Khot cannot in this case obtain more than one-third of the proceeds of the sale of the trees.
15. This, however, is a very small part of the case as argued and I now turn to the first matter, the application and effect of Dunlop's Proclamation. There is a great mass of evidence and there have been days of argument directed on the one side to show that the Khots wore under this Proclamation the owners of the trees; on the other that the Government was the owner. There is a third possibility: that the Khatedars are the owners. The evidence and circumstances were all carefully considered by the District Judge but as I have said, in my opinion, the matter is concluded by the Kabulayats and therefore it is unnecessary for me to embark on a consideration of this lengthy and difficult aspect of the case.
16. It is contended that the claim of the Khots to the one-third must also be dismissed because the notice of suit was defective. No doubt it was in a way defective; but all the same there was substantial notice of the claim and on the circumstances appearing, wo cannot in my opinion dismiss the claim to one-third on so technical a ground. That claim is good and must be awarded. I would therefore award the claim to the extent of one-third and order that the parties bear their own costs throughout.
1. The plaintiffs in this case, who are the Khots of the villages of Girne and Nanavali in the Mangaon Taluka of the Kolaba District, seek to recover the price of certain teak trees realised by the Government by the sale thereof to the occupants of the lands, on which the trees stood in 1909, or in the alternative one-third of the amount. In the lower Court they based their claim, firstly, on the ground of the proprietorship of the soil, secondly, on the allegation that the trees in question were really the subsequent growths of the original teak trees which were cut in 1862 or thereabout and that they belonged to the Khots according to certain Government Resolutions, thirdly, on Mr. Dunlop's Proclamation and, lastly, as regards the alternative prayer on the Kabulayats. The defendant, the Secretary of State for India in Council, resisted the claim principally on the ground that the lands were Varkas lands, that the plaintiffs were not the proprietors of the soil, that the trees were not cut before as alleged by the plaintiffs, that Mr. Dunlop's Proclamation had no application to the lands in question, and that if at all the occupants and not the Khots should have the benefit of that Proclamation, that the rights of the Khots to the trees were regulated by the terms of the Kabulayats, and that the claim to one-third of the price of the trees could not be allowed for want of a specific notice.
2. The District Court of Thana, which tried the suit, has disallowed the plaintiffs' claim.
3. One of the Khots has preferred the present appeal.
4. It has been argued at length before us, and though all the four grounds in support of the Khots' claim have been urged, the first two grounds have not been seriously pressed.
5. These are Varkas lands and whatever the extent of the Khots' interest either as Khots or occupants in the particular lands may bo, it is clear that they are not the proprietors of the soil. The question has been fully dealt with in the case of Vasudev Bhaskar Pendse v, The Collector of Thana (1879) P.J. 274. Mr. Nijsure did not press the point in view of this decision.
6. The second ground of the plaintiff's' claim is equally untenable. Not only is it not shown that the teak trees in question are the subsequent growths but it is shown that most of the teak trees could not be the subsequent growths as alleged by the plaintiffs. The trial Court has dealt with the evidence on the point; and no good reason has been shown by the appellant why the trial Court's conclusion on this point should not be accepted.
7. The third ground of the plaintiff's' claim relates to Mr. Dunlop's Proclamation. The main controversy between the parties has ranged round this part of the plaintiffs' case in the appeal. It will be convenient to note here a few facts bearing on this point, which are either proved or admitted. The villages of Girne and Xanavali are within the area, to which Mr. Dunlop's Proclamation applies. Those villages were originally surveyed in about 1855 and the Survey Settlement was first introduced in 1865-66 The Revision Survey Settlement was introduced in 1902, and at the date of the sale of the trees, the Revision Settlement was in force. The lands in question are described as Varkas and particular survoy and Falni Numbers are given to the lands in question in the Settlement Register of 1865-66. They are described as Khoti nisbat land. The occupants or tenants in whose names these lands are entered have to pay a certain fixed assessment and Fayda to the Khots. Sections 37 and 38 of the Bombay Survey and Settlement Act (I of 1865) are applicable to them. The present. Khots and their predecessors-in-title have been Khots of these villages since the times of the Peshwas. Their position as Khots was recognised when the British Government acquired this territory. Prior to the first settlement they used to pass Kabulayata, and after 1870 they have passed annual Kabulayats to the Government, of which Exhs. 47 and 72 are types. Though their position as hereditary Khots is not admitted by the Government Pleader, it is clear to my mind that for the purposes of this case they must be treated as Khots, whoso rights from long standing have become hereditary, and who represent the same class of Khots as the Khots in the case of Tajubai v. The Sub-Collector of Kulaba (1866) 3 B.H.C.R. 132.
8. Mr. Dunlop's Proclamation was published in 1824; and it is common ground now that in spite of the attempt to cancel the grant in 1851, it is still in force.
9. The Khots sought to establish their claim against the occupants in the first instance but failed. The occupants are not parties to the present suit, and in this appeal we are not directly concerned with their rights, if any, to the trees. The Khots had to pay a certain -fixed amount in respect of the Varkas lands of these villages every year to the Government, and they used to recover the customary duos from those who used or were in occupation of the Varkas lands prior to the settlement of 1865-66. After the settlement the duos payable to the Khot by the occupants in respect of the Varkas land were the fixed assessment and the Fayda.
10. These are the important facts which relate to the contentions of the parties as to Mr. Dunlop's Proclamation.
11. The appellant contends that the Khots have sufficient interest in the lands to invite the application of the Proclamation in their favour, that the persons in whose names the lands are i entered are really their tenants, and that their claim under the Proclamation is independent of and not affected by the terms of the Kabulayats. The learned Government Pleader contends that the Proclamation can have no application to the Varkas lands, that the Khots have no such interest in the lands in question as would enable them to take the benefit of the Proclamation, that the occupants in whose names the lands are entered are not shown to have been the tenants of the Khots prior to the settlement of 1865-66, that even if the occupants, in whose names the lands were entered in 1865-66 were to be treated as having been in occupation of the lands in 1824 in their own right they, and not the Khots, would be entitled to the benefit of the Proclamation, and that the rights, if any, of the Khots under the Proclamation, are modified and regulated by Kabulayats which the Khots passed from year to year.
12. I shall first deal with the argument that the Proclamation cannot apply to the Varkas lands. I am unable to accept this argument. It is proved in this case that the Khots had to pay a certain amount every year to the Government in respect of the Varkas lands. Undoubtedly the Khot is a farmer of the village. But as pointed out in Tajubai's case the right to cultivate such waste or other lands as may be at the Khot's disposal or to give them out in cultivation under such terms as may be most to his advantage must be viewed as a recognised mode of his remuneration for the services rendered, and that whenever he ceases to be the Khot, he becomes liable for the full amount of the assessment as an ordinary cultivator in respect of lands which he may have brought under cultivation or disposed of for his own benefit. It follows that it would be open to the Khot to dispose of plots of Varkas lands in a manner as may be most to his advantage, of course subject to the rights of other tenants already in occupation of the Varkas lands, and to acquire such interest in the lands as would enable him to retain the lands subject to his paying the full assessment or customary dues when he ceases to be the Khot of the village. It is open to him to acquire the interest practically of an occupant in any plot of Varkas land. Such an interest, if proved, would entitle him to the benefit of the Proclamation on the principle recognised in In re Antaji Keshav Tambe I.L.R. (1893) Bom. 870 and in Secretary of State for India in Council v. Sitaram Shivram I.L.R. (1899) Bom. 518. No doubt both these cases related to the Khoti Khasgi lands. But it seems to me that the principle of the decisions is not necessarily confined to the Khasgi lands. Fulton J., while referring to the Proclamation observed in In re Antaji Keshav Tambe as follows: 'The correspondence preceding the issue of this document shows that it was intended to be of wide application, and it is difficult to imagine to what class of lands it was intended to apply, if it did not include thoso of which the Khot was entitled to the permanent occupation so long as he paid the assessment due on the village.' If a person-not necessarily a Khot-can prove that he- was in permanent occupation of a plot of Varkas land in his own right, 1 do not see any reason why he is not the person, whose land it is, within the meaning of the last sentence of the Proclamation. I have not set forth the whole Proclamation here ; but it has been fully set forth in both these cases, and the material part is quoted in Marathi by Parsons J. in his judgment in Secretary of State for India v. Sitaram Shivram. Of course any person who claims the benefit of the Proclamation must prove that the land, on which the trees stand, is his in a popular sense, i.e., it is sufficiently marked out as being in his permanent occupation in his own right so as to make it properly describable as his land.
13. The learned Government Pleader has relied upon Vasudeo Bhaskar Pendse's case in support of his argument. But that was a case in which the basis of the claim was the proprietorship of the soil. It was not a case, to which Mr. Dunlop's Proclamation could apply. The point was not considered and could not have been decided. The general conclusions of the learned Judges at page 286 have reference to the proprietorship of the soil and have no application whatever to Mr. Dunlop's Proclamation. The only other case relied upon in support of this view by the Government Pleader is the unreported case of The Secretary of State for India in Council v. Ballkrishna Antaji Bhagwat F.A. 73 of 1910 decided on 24th March 1914 (Unreported). I have read the interlocutory judgment . of this Court in the case. I do not think that the point could be treated as decided in favour of the Government. At the most it may be treated as an instance in which if the land was proved to be Varkas it was assumed that the trees would not belong to the Khot. But even as to that I am very doubtful. The possibility of the Proclamation being applicable to ordinary Varkas land was recognised by the Court, the plaintiff in that case having been expressly permitted to adduce evidence on the point. I am, therefore, of opinion that the Proclamation may apply even to the Varkas land, provided the necessary facts are established.
14. The second general argument, which I propose to deal with, elates to the Kabulayats. Assuming for the sake of argument hat the Khot has a right to the trees on a certain plot of Varkas land under the Proclamation, I do not think that the right is affected by these Kabulayats. It seems to me that the purpose of Clause 11 of the Kabulayats, with which we are concerned, is to define the rights of the executants as Khots, and not to include within its scope such rights as may be independent of the Khotship, though they may have been acquired in consequence of the Khotship. For instance the trees on the Khoti Khasgi lands would belong to the Khot in spito of Clause 11. In the case of Secretary of State v. Sadashiv (1911) 14 Bom. L.R. 77 Clause 10 of the Kabulayat in which corresponded to Clause 11 of the Kabulayats in the present case, the decision of the District Judge that Dunlop's Proclamation applied in respect of the trees growing on the Khoti Khasgi lands was accepted by the High Court. Similarly, if Dunlop's Proclamation applies to trees on Varkas lands proved to be in the permanent occupation of a person, I do not see how Clause 11 can be used to deprive a Khot of the rights to trees, if he is proved to have such rights. I quite agree that such rights to trees as a Khot enjoys only as a Khot, and which would come to an end if he ceased to be the Khot, would be regulated by the Kabulayats. I do not think that this view conflicts in any way with the decision of their Lordships of the Privy Council in Nagardas Sanbhagyadas v. The Conservator of Forests, Bombay I.L.R. (1879) Bom. 264. It seems to me that the learned District Judge's view on this point is right.
15. The next question is whether the Khots are proved to have such interest in these Varkas lands as would bring them under the terms of the Proclamation. This is entirely a matter of evidence. The oral evidence is no; of much use. It is necessarily vague and indecisive, when we have to deal with the state of things as it obtained prior to the settlement of 1865-66. There is no register. There are only the appraisement papers, which show that certain lands were cultivated by the persons who were entered in 1865-66 in the settlement Register as occupants, or their predecessors. But the lands are described by the names, and it is not shown whether the lands mentioned in these papers refer to the particular plots with which we are concerned. The plaintiffs have not been able to show that any of the occupants or their predecessors were in occupation of the Varkas land as the tenants of the Khots and not in their own right liable only to pay the customary duos to the Khots. The appraisement papers merely show that they cultivated the lands. But the nature and extent of their rights in relation to the lands are not shown. The plaintiff's have produced a number of rent notes; but they have not proved that a single one of them was executed by the present occupants or their predecessors. Under these circumstances it seems to me to be quite impossible to hold that the Khots were in permanent occupation of the lands in question or that they had such interest in the lands as would enable them to obtain the benefit of Dunlop's Proclamation. I have not discussed the evidence in detail. It was discussed at length before us. On no essential points it could bear examination ; and it is unnecessary to deal with it at any length.
16. In view of this conclusion it is unnecessary to examine the further argument that the right to the trees is vested, if at all, in the tenants or occupants and not in the Khots. The learned District Judge has expressed a strong opinion that the Khatedars have the same rights over the lands in their Khatas except the right of alienation otherwise than by inheritance as the Khots have in respect of their private lands (Khasgi lands). This is not a claim by the Khatedars against the Government; and it is not necessary to express any opinion as to their rights to the trees.
17. It remains only to deal with the argument of Mr. Nijsure based on Sections 37 and 38 of the Bombay Survey and Settlement Act, I of 1865, and Section 40 of the Land Revenue Code of 1879. No doubt after the settlement the rights of the occupants and the Khot are regulated by Sections 37 and 38 of the Act of 1865. The Khot has the right of reversion, and the occupants' rights of transfer are restricted. It may be that the occupants are the tenants of the Khots within the meaning of Section 38. But I do not think that that consideration affects the question of the ownership of the trees apart from Dunlap's Proclamation, Section 40 of the Land Revenue Code, which relates to the rights of the occupants to trees, cannot help the Khots. In the first place the Khots are not the occupants within the meaning of Section 40. Even assuming that they are the occupants it is clear from the Proclamation of 1870 (Exhibit 70), and the Proclamation of 1902, which has been admitted in evidence in appeal with the consent of parties, that the teak trees on the Varkas lands were reserved by the Government. The Khots have no claim to the teak trees under Section 40 of the Land Revenue Code, and they have failed to prove that they are entitled to the benefit of Dunlop's Proclamation in respect of the Varkas lands in question.
18. As regards the alternative claim to one-third of the price of the trees, it is resisted mainly on the ground of the want of a proper notice. There is no answer to the claim on the merits; and the terms of Clause 11 of the Kabulayats are clear. The notice, though not explicit, is sufficient in my opinion to cover this claim.
19. I, therefore, concur in the decree proposed by my learned brother.