Norman Macleod, C.J.
1. The plaintiff sued to recover Rs. 12,390 odd and costs of the suit on the strength of a deed of mortgage dated November 20, 1884. He also prayed that if default of payment were made he should be allowed to recover the amount by sale. A deeree was passed in favour of the plaintiff that the defendant should pay the mortgage amount, and in default the pro-perty should be sold.
2. The defendant has appealed. The first objection is that the lower Court erred in holding that he was not an agriculturist. He is a sharer in the Jahagir of the village under a Sanad Exhibit 71 which had already been the subject-matter for interpretation in a proceeding between the present parties in a suit filed by the Jahagirdars against the Secretary of State. Unfortunately, that suit was filed in the Second Class Subordinate Judge's Court, and consequently the question decided there could not be res judicata in this suit.
3. Now it is clear that the defendant's income was partly due to the assessment of the village and partly due to what he earned from the inhere land and from various lands that had lapsed to the Jahagirdars. We think that the income derived from the assessment is not agricultural income. By the definition in Section 2 the Dekkhan Agriculturists' Relief Act, 'Agriculturist' shall be taken to mean a person, who by himself, or by his servants or by his tenants earns his livelihood wholly or principally by agriculture. Under Explanation (b) an assignee of Government assessment or a mortgagee is not as such an agriculturist within this definition.
4. It was contended for the defendant that he was the grantee of the soil, and so the assessment was agricultural income. That question with regard to Inamdars was decided in Kashi-nath v. Vinayak. : (1911)13BOMLR242 There were certain Inam lands belonging to the applicant. The gross income yielded was Rs. 900. Out of that sum the applicant had received Rs. 457 on account of his Inam Hak less Nazarana Rs. 28-9-0. The balance was the agricultural income. The Court said:--
The question that we have to decide in this case is whether the income derived from tenants by an Inamdar which is to a certain extent attributable to the fact that he is the assignee of Government revenue and therefore does not have to pay over a portion of that income to Government and may keep it for himself, can be taken into consideration in estimating whether or not he earns his livelihood wholly or principally by agriculture and therefore is an agriculturist within the meaning of the Dekkhan Agriculturists' Belief Act.
5. They concluded:--
In the case before us, therefore, the receipts of agricultural income attributable to the position of the applicant as Inamdar must be excluded from consideration.
6. Here in the same way the income attributable to the defendant's position as Jahagirdar, that is to say, what he received as assessment, must be excluded from the calculation of his agricultural income. Assuming he was the grantee of the soil he might be able to earn certain income which otherwise he would not be able to do, if the grant was merely confined to the share of the royal revenue, but that could not make his income from assessment agricultural income. It surely was never intended that a Jahagirdar relying entirely upon the income derived from the assessment which would be recovered by the village officers from occupants or tenants, should be considered as an agriculturist earning his livelihood from agriculture within the meaning of the Dekkhan Agriculturists' Relief Act, and consequently if a part of his income is derived from assessment that is not agricultural income. The rest of the defence raised by the defendant was clearly dishonest.
7. As regards the plea of limitation taken, the Judge has shown conclusively that interest had been paid within twelve years of the suit. The appeal, therefore, fails and must be dismissed with costs.