John Beaumont, C.J.
1. The only question which has been argued in this appeal and the only question on which it is necessary to express an opinion is a very short one. The land in suit was admittedly bhagdari land prior to 1874. In the year 1874 that land was alienated and it is not disputed that the alienation was void under Section 3 of the Bhagdari Act (Bom, Act V of 1862).
2. The land, however, has not been restored to the original owner, as it might have been, by the Collector under the powers conferred upon him by Section 3 of the Act. The question raised in the appeal is whether the land in the hands of the persons who acquired it, whatever their interest may be, under the void alienation of 1874, is subject to the customs affecting bhagdari land or is free from those customs. The appellants contend that it is free from the customs, the particular custom relevant to their case being a custom as to the succession of bhagdari land. On the face of it the proposition contended for by the appellants seems a rather extravagant one. The only interest which could be acquired under the void conveyance would, I take it be a title by adverse possession against the original alienor, and the contention of the appellants really comes to this that the alienee has acquired by adverse possession title to some thing different from that of which he dispossessed the original owner. The land of which he dispossessed the original owner was bhagdari land, and it is suggested that what was acquired is non-bhagdari land. The contention of the appellants is supported by one case and one case only. That is the case of Parshotam Bhaishankar v. Hira Parag ILR (1890) 15 Bom. 172. The head-note in that case is that the alienation of an undivided portion of a bhag or share in the bhag to a person who is not a bhagdar is void under Section 8 of the Bhagdari Act. It is obvious, therefore, that the actual decision in that case does not coyer the question with which we have to deal. But Sir Charles Sargent C.J. in the course of his judgment in discussing whether alienation of an undivided portion of a bhag was prohibited by the Act or not points out that the parson who acquires a title to an undivided share in a bhag would necessarily get the right to sue for partition and he says (p. 175):-
There is no section in the Act, which, without straining its language, could be construed to have the effect of prohibiting such an alienee from suing for partition ; and the lands allotted to him on such partition would not be subject to the bhagdari tenure, which is not a quality of the lands or else there would have been no necessity for the Act.
3. I confess that I feel some difficulty in seeing exactly what the learned Chief Justice meant by that dictum. I should have thought that bhagdari tenure or any other form of tenure was a quality affecting the land and not the particular individual who holds the land. Mr. Thakor for the respondent suggests that what the learned Chief Justice meant was that inasmuch as a title acquired by partition might be said not to be acquired by means of an alienation there would be nothing which the Collector-could set aside under Section 3 of the Act It may be that the learned Chief Justice had something of the sort in his mind, but if he intended to say that the land in the hands of a particular holder ceased to be bhagdari tenure I can only say that I do not agree with that dictum and it seems to me inconsistent with the decision in Jijibhai v. Nagji (1909) 11 Bom. L.R. 693, in which it was held that the prohibition against alienation of an unrecognised subdivision of a bhag provided by Section 3 of the Bhagdari Act applies to the person in possession of the bhag though he may not be the bhagdar Mr. Abhyankar for the appellants admits further that the land in his clients' hands remained subject to the right of the Collector to set aside the alienation under the power conferred by Section 3 of the Act and at any rate to that extent he admits that it is bhagdari land, But, in my opinion, the broad principle is that a person who acquires land of a particular tenure by adverse possession holds the land subject to the incidents of that tenure and not free from those incidents, I think, therefore, that the learned District Judge's judgment confirming the learned Subordinate Judge's judgment was perfectly right and that the appeal must be dismissed with costs. Rule also discharged with coats.
4. I agree.
5. The fact that the land is admittedly still liable to resumption by the Collector under the Bhagdari Act is in itself an indication that the land continues to be bhagdari. Although the cases on this subject in this Court are numerous, no case has ever laid down that bhagdari land after alienation ceased to be such, and if a title to it is acquired by adverse possession by a person who is not a bhagdar, that does not affect the conditions under which he holds the land, which remains the same as before the alienation. I agree that the appeal should be dismissed with costs, as no objection has been taken to the existence of the custom on which the plaintiff bases his case.