Stanley Batchelor Kt., Acting C.J.
1. The suit out of which this appeal arises was filed by an Inamdar to eject the defendants. One of his pleas was that the defendants Nos. 1 to 3 were his yearly tenants. The plaintiff's position as an Inamdar was conceded, but his claim to own the Mirasi or occupancy rights in these lands was denied by the defendants, and the only question which we have to decide is whether the plaintiff's claim to these Mirasi rights should be allowed.
2. The first Court held against the plaintiff upon this point, but that decree was reversed on appeal, and the present appeal is brought by the defendants 2 to 5. It seems clear that prior to 1880, the plaintiff's position as Inamdar was accepted, and gave rise to no disputes. But in 1880 the Survey Settlement was introduced into this village, and in the Settlement Register the present appellants were entered as the Khatedars. Since 1880 admittedly they have been cultivating the lands, paying only a sum equivalent to the annual assessment.
3. The contention for the defendants is that, by virtue of the provision of Section 217 of the Bombay Land-Revenue Code, the effect of the introduction of the Survey Settlement in 1880 was that thereafter the defendants had the same rights in respect of these lands in their occupation, as holders of land in un-alienated villages had, and have, under the provisions of the Bombay Land-Revenue Code.
4. It is not denied by Mr. Rao on behalf of the respondents that, if Section 217 is to be applied to the facts of this case then the defendants' contention must prevail. But Mr. Rao urges that Section 217 is not applicable to the present facts, because the village in question is not an alienated village within the meaning of that expression as it is defined in Clause (20) of Section 3 of the Bombay Land-Revenue Code.
5. The sole question, therefore, for our determination in this appeal is whether the village is or is not an alienated village within the definition. The definition runs in these words 'alienated' means '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.' Now the fact which we have found for us here is that, by the grant of this village to the plaintiff's predecessor-in-title. there were transferred to him not merely the Government's rights to receive the land-revenue, but the entire property in the soil. That being so, the learned pleader for the respondents contends that the transfer was not such a transfer as is referred to in the definition, but was a transfer in excess of the definition.
6. The actual point before us was considered by my learned brother Beaman in Pandu v. Ramchandra Ganesh I.L.R. (1817) Bom. 112 : 20 Bom. L.R. 16. The decision there being the decision of a single Judge is of course not binding upon us, but equally of course it is entitled to careful consideration at our hands. In that judgment my learned brother referred to the argument that in the definition of 'alienated,' the greater must include the less, and I must confess that I have never been able to escape from the weight of this argument. It appears to me that the words 'transferred in so far as the rights of Government to payment of the rent or land-revenue are concerned,' prescribe a certain minimum requirement, and where that minimum requirement is satisfied, the definition also is satisfied, notwithstanding that the transfer may cover certain other interests over and above those contained in the minimum requirement.
7. Adapting the words of the definition to the facts of our present case, it seems to me strictly true to say that in the case of this village there were transferred to the plaintiff's predecessor the rights of Government to payment of the rent or land-revenue. And I am myself unable to see how that statement becomes less true because over and above those rights other interests were also conveyed. I cannot but think that if the object of the draftsman had been to exclude all those cases where the transfer involved other interests than those which I have described as the minimum requirement, he would have altered the phraseology of the clause, as, for instance, by the insertion of the word 'only' after the words 'in so far,' or, better, by the addition of clear words expressly excluding the case where other and larger interests were transferred. It appears to me, therefore, on the best consideraation that I can give to the actual words of the clause, that those words are in favour of the defendants' argument.
8. It may also be observed that the Land Revenue Code appears to recognise only two classes of property of this description, namely, 'alienated' and 'unalienated.' Unquestionably the village in this case is not an unalienated village. I think, therefore, that within the meaning of the Land Revenue Code it mustbe regarded as an alienated village. That that was the view of the Government itself seems to be beyond all doubt, for, in 1880, as I have said, the Survey Settlement was introduced into this village under the provisions of Section 216 of the Bombay Land-Revenue Code as into an alienated village. It has not been suggested to us in argument that Government would have had any title or pretext for introducing the Survey Settlement into this village, except on the footing that the village was an alienated village within the definition in the Land Revenue Code. And though I feel the force of my brother Beaman's argument as to the scope and character of the Land Revenue Code, it may, I think, be fairly stated that the Code, 'whatever may have been its original intention,is not now confined to a scheme for regulating the rights of Government as against the agricultural payers of assessment. There are many sections of the Code which indicate a somewhat larger object, and among them I may notice Sections 83, 86 and 88.
9. On these grounds, it appears to me that the weight of the argument is in favour of the view that this is an alienated village, notwithstanding that the whole property in the soil was granted by Government to the plaintiff's predecessor. If that is so, then admittedly Section 217 applies to the case, and the decree under appeal must be reversed. I would, therefore, reverse that decree and restore the decree of the trial Judge with costs throughout.
10. I agree. The question in this case is whether the suit lands are in an alienated village within the meaning of the Land Eevenue Code. That in its turn depends on the definition of 'alienated' in Section 3, Sub-section (20) of the Code which runs as follows: ''Alienated' means 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.
11. Now in fact in the present case the rights of Government to payment of land-revenue have been transferred to the ownership of a person. Therefore, the definition has been satisfied in the present case, if one regards it as imposing a mimimum requirement for 'alienation'' within the meaning of the Code
12. But the rights of Government to the rent or to the soil itself have also been transferred. It is, accordingly, said by the respondents that the above is not the correct view of the definition, and that the intention of the Legislature is to impose not a minimum, but an absolute, requirement. The alienation must be of the land-revenue neither more nor less. Consequently the definition must be read just as if the word 'only' had been introduced into it so that it would run 'in so far only as the rights of Government to payment, etc., are concerned'. In my opinion, this view of the respondents as to the meaning of the definition is not correct. I think the definition in its ordinary language merely imposes a minimum requirement, and as that minimum requirement has been satisfied in the present case, it is immaterial that further rights in addition to the mere land-revenue rights were also granted.
13. It is, however, said that this is contrary to what the Government or the Legislature must be presumed to have intended. I think the best way of gathering those intentions is to pay close attention to the exact language which is used. But supposing one goes outside the language of the Code, and sees what view Government has taken in practice, one finds that so far from Government thinking that it had no further interest in lands where it had granted the land-revenue rights as well as the rights to the soil and that consequently the Code was not to apply to such lands, Government introduced in 1881 at the request of the Inamdar the Settlement Survey under the Code into this very village. Therefore, so far as the intention of Government (if not of the Legislature) can be ascertained, one sees in their acts that they applied, and thought they were entitled to apply, this Code to this particular village, and I think it is an obvious inference that they thought that this particular village was an alienated village within the meaning of the Code.
14. I think there is also some substance in what Mr. Coyajee has urged before us as to the use of the word 'rent' or 'land-revenue'. But I do not base my judgment on that. I rely, so far as the words of the Code are concerned, on the Code itself.
15. I think it is also noticeable that the plaintiff himself has acted as if the Code applied to this land, for he has put in force certain powers under the Code, or has applied to the Collector to put in force certain powers under the Code, which, as I understand the facts, could not be done unless the village was an alienated village within the meaning of the Code.
16. One may also observe that, as my Lord the Chief Justice has pointed out, one cannot say that the Code is merely confined to Government lands. At any rate, as a result of later amendments, we have the Record of Rights which applies to all lands. Possibly that point does not apply here, because the material date here is, I suppose, 18S1. But as pointed out by Mr. Coyajee, there are certain other sections in the Act which would still apply to land in which the Government would not necessarily retain any rights.
17. As regards the case of Pandu v. Ramchandra Ganesh I.L.R. (1917) Bom. 112 : 20 Bom. L.R. 10, I have given it my best consideration, but I think the learned Judge really took the same view, at any rate in the first instance, as we take of the words of the Act. As I read his judgment, he was only perhaps over-persuaded by the possible results that might follow from adopting what is 1 think the literal interpretation of the Act. Personally I think it is safer to adopt a literal interpretation of the Act. And if we are really erring in thus ascertaining the intention of the Legislature, then it will be for the Legislature to make an appropriate amendment. If any such amendment is made, or even, if no such amendment is made, I hope the authorities may at some comparatively early date see their way to have a reenacting Code which collects in one single Act of the Legislature all those various amendments which have been made since 1879. It is now extremely embarrassing for the ordinary practitioner to try and find his way through these various Acts and amending Acts that have taken place over all these years. And one is almost bound to rely on some text-book which has done this work, which, in my opinion, is more properly done by a consolidating and amending Act. This is, I think, none the less necessary, because the Act seems to me to be a particularly difficult one to construe, at any rate, as regards some of its provisions.
18. I agree that this appeal must be allowed, and that the order of the trial Judge must be restored with costs throughout.