1. This appeal is preferred by the defendant in a suit by the plaintiffs for a declaration that they were entitled to recover assessment of the suit lands from the defendant.
2. The facts leading to this case are shortly as follows:- The suit lands are jat inam sheri lands and one Narayan Vishram was their owner. He mortgaged them on June 16, 1875, to one Govind by which all the rights which he had in the mortgaged lands were given in security. The mortgagor was to pay the judi to the Government in the first instance,. and if it was not paid, the mortgagee had to do so. Thereafter, there were three other mortgages of the same property in 1888, 1889 and 1893 to the same mortgagee and after his death, his widow. In October, 1914, the mortgagee obtained a decree on all the mortgages and applied to execute it. In May, 1915, a proclamation of sale of the mortgaged property was issued, and it was stated therein that the right, title and interest of the defendant, i.e. the inamdar, in the property was to be sold. In the next month the mortgagee purchased the property with the permission of the Court, and in 1923 she got possession in execution. Thereafter the mortgagor inamdar sought to recover assessment of the lands in possession of the mortgagee on the ground that his right as inamdar to recover assessment of the inam lands had not been sold to the mortgagee, but what was sold was only his right as occupant. A distinction was sought to be made between the two capacities of the inamdar, i.e. inasmuch as the inamdar was himself in possession of the land and was getting it cultivated by his tenants, he was the occupant of the land, and inasmuch as he was an inamdar, he had a right to recover the assessment of the lands in the village including this particular land. That contention was negatived by the Collector who held that in the mortgage-deed as well as in the decree and the proclamation of sale what was mortgaged as well as ordered to be sold was the whole of his interest as inamdar and not merely as occupant. The Collector was of the opinion that there was nothing in the wording of the decree or the proclamation of sale to suggest that the right, title and interest put to sale was restricted to the inamdar's occupancy interest in the land or that it excluded his interest in the royal share of the revenue. The inamdar's application was, therefore, rejected. It was on account of this order that this suit was brought by the inamdar and his son for a declaration that they have a right to recover the assessment from the defendant on the ground that the right to levy the assessment had not been sold in the auction.
3. The trial Court held that the whole of the right, title and interest of the inamdar had been brought to sale together with all the rights and powers regarding the management of the income which the inamdar would legally exercise for his benefit as stated in the proclamation of sale, and that description carried with it the full inam rights which were put to sale and purchased by the mortgagee. On behalf of the plaintiffs reliance was sought to be placed upon two unreported decisions of this Court in which it was observed that the law does not recognise two distinct kinds of liability with regard to sheri inam land, namely, the liability to pay to Government and the liability to pay to the inamdar; that the liability was one and indivisible, and therefore, if the whole or a part of the assessment, i.e. judi, was paid to the Government, that liability could not be sold. Those two decisions were distinguished by the learned trial Judge on the ground that there the inamdar's themselves were paying the whole assessment to the Government as the inam had been resumed by the Government and at the date when the auction-sale took place, they were not full-fledged inamdar's and were paying not merely the judi but the full assessment on the land.
4. On appeal by the plaintiffs, however, the learned District Judge has reversed that decision, and has held, relying mainly upon those two decisions, that the right, title and interest of the inamdar in his capacity as inamdar to levy assessment on the land had not been sold and what has passed was only his right as an occupant of the land. The learned District Judge refers to the argument of the defendant-mortgagee, namely, that when the Government alienates part of the revenues in an inam village to the inamdar, the inamdar gets a right to recover proportionate assessment from all the land in the village including sheri inam land, which again can be said to be an interest of the inamdar in the land, and that this interest can be sold. The learned Judge concedes that there is something to be said for that view, but he rejects that argument because he felt bound by the two decisions of this Court.
5. It is, therefore, necessary to see what exactly has been decided in those two cases. The second of the two decisions simply purports to follow the First one as it was in respect of the same kind of land in the same village. The facts in the first case were that in 1859 the Government had resumed the inam and in 1864 the right, title and interest of the inamdar and his sons were put up by the Court for sale and purchased by one Ratnappa. In 1882, the inam was restored to the inamdar. In 1895 and 1902 the purchaser sold the land in two parts to the defendants. The question was whether the defendants had acquired all the inamdar's rights. In 1864 when the sale took place full assessment was being paid by the inamdar to the Government. So that as inamdar he was not paying it to himself, and no such separate right of paying to himself existed and could be sold. The decision of Madgavkar J., who decided the appeal, is based upon the finding that at the time when the sale took place, the inamdar himself was paying assessment to the Government on account of the resumption of the inam and therefore, what could be sold would be only his right, title and interest as the occupant of the land and not as inamdar, because his capacity as inamdar was not in existence when the sale took place. However, the learned Judge makes certain general observations which, in my opinion, were not necessary for the purpose of the decision in that case. His observations are as follows:-
Ordinarily land in this Presidency, is the subject of a right to occupy on the part of the occupancy tenant with a liability to pay assessment. In the case of inam lands this assessment is paid not to Government, but to the inamdar, who in his turn pays a portion of it usually l/8th as judi to Government. In the case of sheri inam land, the liability to pay assessment still remains, but the inamdar in his capacity as occupancy tenant levies it on himself and retains 7/8th as inamdar.
6. He then stated that the law did not recognise two kinds of liability, namely, liability to pay to Government and liability to pay to the inamdar. The learned District Judge in the present case seems to have been pressed by those observations to hold that although the inamdar continued to be the inamdar at the date when the auction-sale took place, still as he was paying judi, viz., one-eighth of the assessment to the Government and the remaining seven-eighths he was keeping in his capacity as inamdar, and as these two kinds of liability were indivisible, the liability to pay the assessment to himself cannot be sold in execution proceedings at all. In my opinion, this view of the learned Judge does not necessarily follow from the observations of Madgavkar J. But even if it does, those general observations were obiter as they were not necessary for the purpose of the decision. In fact Madgavkar J. himself says that in the case before him on account of resumption of the inam the inamdar was paying assessment to the Government, and that being so, there is no doubt that what could be sold in execution would be only his right as occupancy tenant, and not his right as inamdar. In the present case at the time of the sale proclamation and the auction the inamdar still continued to be the inamdar of the land and only paid judi to the Government. It cannot be said that the right which he had as inamdar in the land was inalienable and could not be sold in execution of a decree. I have not been able to find any authority for the proposition that such a right would be inalienable, nor has Mr. Jahagirdar for the respondent been able to cite any. In my opinion, when the whole right, title and interest of an inamdar in the land is brought to sale, it includes not only his right as occupant in the land but also his right as inamdar to recover assessment from the tenants. The distinction between his rights as inamdar and as occupant with respect to the same land is only a notional distinction and is not a distinction in fact. Besides, the circumstance that the judi amounts to one-eighth of the assessment cannot, in my opinion, mean that the inamdar pays a part of the assessment to the Government and the rest of it to himself and that the liability for those two payments cannot be separated. I know of no authority which says that the entire interest of the inamdar in the inami land cannot be sold in execution. The trial Court and the Collector in the first instance were right in holding that the full right of the inamdar which was mortgaged as well as brought to sale in the auction included not only the inamdar's right as occupant but also his right as inamdar in the land.
7. In my opinion, therefore, the appeal should be allowed. The order of the lower appellate Court is reversed and the decree of the trial Court is restored with costs throughout.