1. The only question raised on this appeal is, whether the respondents, as Khots of the village of Bele Budruk in the District of Ratnagiri, are entitled to occupy and cultivate lands left dry in the river-bed as far as the middle of the bed opposite their khoti village. The District Judge, who tried the suit brought by the respondents against the appellant (the Secretary of State for India in Council), has found upon that question in the affirmative.
2. But his finding is assailed before us upon the ground that the river in question, being admittedly neither tidal nor navigable, is, under Section 37 of the Land Revenue Code, the property of Government and that the respondents cannot claim any right to the lands left dry in its bed as far as the middle of the bed, because they are not owners of any land adjoining the bank of the river, but are, as Khots, mere farmers of the land revenue of the village.
3. The District Judge has not found, nor has it been argued before us by the respondents' pleaders, that they are Khots having a proprietary interest in the soil of the village. They must, therefore, be regarded as Khots of the description mentioned by Sargent C.J. in his judgment in the Collector of Ratnagiri v. Antaji Lakshman ILR (1888) 12 Bom. 534. They are mere farmers of the land revenue having 'only an hereditary right of farming the village.' Now, as regards such khots it was held by this Court in the case of Tajubai v. The Sub-Collector of Kulaba (1866) 3 Bom. 132 that the khot settles with Government for 'assessment of the village as a whole ' and that 'he may let out for cultivation, or himself cultivate, without making any additional payment to Government on that account, any waste or uncultivated land of the village.' And it was held in that 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, consequently, be viewed as the recognised mode of his remuneration for the services rendered.' This view of a Khot's rights was concurred in by Couch C.J. and Melvill J. in Ramchandra N. Mahajan v. The Collector of Ratnagiri (1870) 7 Bom HA.C.J. 41 where they said :-'His occupation of the land without making any additional payment is really part of the fruits of the Khot-ship and is only provisional upon its continuance.'
4. If, then, the respondents are hereditary farmers of the land revenue of the whole village of Bele Budruk, with a right to let out for cultivation, or themselves cultivate, any waste or uncultivated land of the village, they would have a right to occupy and cultivate the lands which are now in dispute, provided they form part of the village lands and fall within the description of waste or uncultivated lands. It is not disputed that the bed of the stream in question to the middle of it is part of the village of which the respondents are Khots. The lands under it left dry have been so treated for nearly a hundred years ; and it is unquestionable that when the bed of the stream is left dry, the land formed by alluvion would be waste or uncultivated land-All this has not been disputed before us by the learned Advocate General, nor does it appear to have been in dispute in the Court below.
5. But it was said that Section 37 of the Land Revenue Code was a bar to the right claimed by the respondents. That section, however, has been held by this Court in Hanmantrav v. The Secretary of State for India ILR (1900) 5 Bom. 287 and in Suran-nanna Devappa Hegde v. The Secretary of State for India ILR (1900) 24 Bom. 435 not to take away rights which existed when it became law. No doubt the words in the section are 'are and are hereby declared to be...the property of Government:' and there are authorities, according to which in the case of a law which is in its nature declaratory, 'the argument that it must not be construed so as to take away previous rights is not applicable.' (see the judgment of Pollock C.B. in Attorney-General v. Theo-bald (1890) 24 Q.B.D. 557. citing Attorney-Genral v. Marquis of Hertford (1849) 3 Ex. 670. But in Harding v. Commissioner of Stamps for Queensland  A.C. 769 the Judicial Committee of the Privy Council, in dealing with the argument that the expression 'it is declared ' in an enactment is prima facie retrospective, observed that 'the use of the expression it is declared to introduce new rules of law is not incorrect and is far from uncommon. The nature of the Act must be determined from its provisions.' Section 37 itself provides that the ownership of Government thereby declared is subject 'to the rights of individuals legally existing.' Before the Land Revenue Code cam0e into force, the law relating to the ownership of such lands was presumably the common law, according to which' where the soil is covered by the water forming a river in which the tide does not flow the soil does of common right belong to the owners of the adjoining land; and there is no case or book of authority to show that the Crown is of common right entitled to land covered by water where the water is not running water forming a river but still water forming a lake. ' (Per Lord Blackburn in Bristow v. Cormican (1878) 3 App. Cas, 641 at p. 666). Accordingly, upon the theory prevailing in British India that, generally speaking, the State is the owner of all land and that its holders are occupants, even before the Land Revenue Code, Government was entitled as owner to all land formed by alluvion in the bed of a river in which' the tide did not flow. But even upon that theory, there was nothing to prevent Government from appropriating such land to any person and creating private rights derogating from their owner' ship or right as the State landlord. As was said by Wightman J. in Marshall v. The Ulleswater Steam Navigation Co. (1863) 3 B. & Section 732 at p.742 'whether the soil of lakes, like that of fresh water rivers prima facie belongs to the owners of the land or of the manors on either side ad medium filum aquae, or whether it belongs prima facie to the King in right of his prerogative (Com. Dig. Prerogative, D. 50; Hale de jure marls, C.Z.), it is not in this case necessary to determine ; for it is clear upon the authorities that the soil of land covered with water may, together with the water and the right of fishing therein, be specially appropriated to a third person, whether he have land or not on the borders thereof or adjacent thereto.' Such appropriation to the Khots of the soil must be held to have been made when they were constituted hereditary farmers of the whole village, with the right to bring into cultivation all waste or uncultivated land in the village. Section 37 of the Land Revenue Code declares that Government are the owners of such lands and so they had been before that section became law. So they are now. But that is not decisive of the right claimed by Government so as to deprive the respondent Khots of the right acquired by them in virtue of the Khotship to cultivate the lands. The evidence in the case shows that from 1801 to 1879 the Khots exercised that right without let or hindrance on the part of Government. That evidence has been believed by the District Judge and before us the learned Advocate-General, who appeared for the Government in support of this appeal, has not discussed it or questioned the District Judge's appreciation of it. This long and uninterrupted user supports the right claimed by the Khots and would of itself be sufficient to raise the presumption in their favour and against Government of their limited title-that is, their title, not indeed as owners or landlords, but as khots of the whole village.
6. On these grounds we must confirm the decree with costs.