1. These are appeals by Government in two companion suits by the representatives of the two branches of the Vinchurkar family to recover certain sums which Government have deducted from the revenue of the plaintiffs' saranjam villages in the Nasik District for eleven years before the suits. The original grant to plaintiffs' ancestors was in 1763. But in 1892 Government resumed the saranjam and restored one-half of it only including the villages in suit to the plaintiffs. Both the original grant and the re-grant in 1892 were subject to the liability to pay certain allowances called kadim hakks and other village expanses. For the payment of these charges six per cent, of the revenue of the villages, after deduction of remission if any, is set apart. This fund is called the chillar. If any balance remains after payment of the hakks and expenses it is called the ain chillar or net chillar. The sums which plaintiffs claim to recover in these suits amounting in the one case to Rs. 10,438 and in the other to Rs. 12,909 are in respect of items of ain chillar from 1916 to 1927.
2. The way in which these moneys came to be deducted by Government from the revenues of the plaintiffs' villages was this. Prior to 1897 Government appear to have taken the view that the holders of alienated villages whether inamdars or saranjamdars were entitled to receive the whole revenue collected by the village officers, to pay thereout the kadim allowances and other village expenses and to keep the balance if any of the fund earmarked for the purpose. But in 1897 there was a Government Resolution which directed that the practice should be changed and that the village officers should deduct the kadim allowances before paying the revenue to the inamdars or saranjamdars and remit the amount to the Government Treasury. It is by no means clear that this would in any way affect the item of ain chillar, which, as already stated, was the balance of the six per cent, of the revenue after payment of the expenses. In any case the orders contained in the Government Resolution were not carried out, at any rate in the villages of this saranjam, and until the year 1916 the whole of the revenue continued to be paid to the saranjamdars who expended what was necessary for the kadim allowances and other village expenses, and presumably kept the balance, the ain chillar, for themselves. In 1916, however, the Collector issued orders to the village officers that the balance of the chillar fund remaining after payment of the kadim hakks was not to be paid to the jahagirdars but remitted to the Government Treasury. Several inamdars brought suits challenging this order and were successful, this Court holding in Vasantrao Narayanrao v. Secretary of State for India ((1922) First Appeal No. 29 of 1921, decided by Macleod C. J. and Goyajee J. on February 7, 1922. The judgment was as follows :-
Macleod C. J. The plaintiff is the Jahagirdar of the village of Sukena which was originally granted to his ancestors as personal inam by Holkar's Government in 1797. The Inam Commissioner reported on the Inamdar's claim to be exempted from the payment of revenue under Act XI of 1852 in 1857. He decreed that the village of Sukena in the Chandore taluka of the Ahmednagar Collectorate less the Mokasa and Sahotra Umals, Juma Wassoul and ancient hakks and inams should be continued in inam for so long as there night be in existence any male descendant in male lineage of the late Amroot Row Ballai his son Ram Row being considered in the light of such a male descendant, his adoption having been sanctioned by Government.
That decision was binding on Government. It was not until 1866 that the sanad in respect of this inam was made out, and it was not until 1875 that it was handed over to the Inamdar. The sanad purported to be issued under Section IV and Section XVI, clause B, of Act II of 1863, which was the Summary Settlement Act, and it appears that with reference to the village of Sukena there is a statement of the village expenses which was prepared for a summary settlement for the year 1860-61, which is exhibit 60, and that contains various deductions which had to be made from the assessment including one item called chilhar at the rate of Rs. 6 on the assessed amount. It is admitted that chilhar means miscellaneous expenses incurred for village purposes.
Then in the sanad, exhibit 33, under the heading ' alienations mare ancient than the grant of the village ', the total amount payable is Rs. 904-2-11 and it is admitted that that amount includes what comes under the heading of chilhar. We may take it as a fact that until 1917 this B amount was not deducted from the assessment paid to the inamdar, but was received by him and disbursed by him for various village purposes.
In 1917 there seems, to have been an order that chilhar expenses should be collected through the village officers, and should be credited to the treasury. An application was made by the Inamdar for cancellation of that order. But on May 25, 1917, the Collector directed that as chilhar was of the nature of a Kadim allowance, the Inamdar could not claim it as a perquisite of his own.
An application to the Commissioner was ineffectual, and consequently this suit was filed in order that the plaintiff might continue to administer the fund, as he had been allowed to do previous to 1917. The learned Judge has dismissed this suit relying, so far as we can see, on the sanad. As chilhar was included in the sum which was excepted therein, the Judge thought the Jahagirdar had no claim to administer it. It seems to us that sufficient attention has not been paid to the decision of the Inam Commissioner, and unless the Commissioner had decided that chilhar should be administered by Government, the Inamdar was entitled to do so himself, and that seems to us the short point in the case. It may be that Government suspect that the Inamdar does not administer the fund as he ought to do, but then it is for the persons who are entitled to the benefit of that fund to take action against the Immdar. It has not even been suggested that the allowance for chilhar was deducted before the grant by Holkar, and unless that could be decided, then it may be presumed that the deduction was made after Holkar's grant and before the sanad was issued. Therefore it was not an alienation more ancient than the grant of the village. The fact that chilhar was included in the sanad in Rs. 904-2-11, which represented the total of such alienations, cannot debar the plaintiffs from showing that they are entitled to administer that fund under the decision of the Inam Commissioner. The appeal, therefore, succeeds. There must be an injunction restraining the Collector in future from interfering with the plaintiffs' administration of this fund and there must be a decree for the plaintiffs for Rs. 486-12-0 for each of the two years 1916-1917 and 1917-18, in respect of chilhar. Any amount which has not been spent by Government since the date of the suit must be paid to the plaintiffs. The appeal is allowed with costs throughout.
In the companion First Appeal No. 45 of 1921 there will be a decree for the plaintiff for Rs. 171-14-0 in respect of 'chilhar' for two years, 1916-17 and 1917-18. There must be an injunction restraining the Collector in future from interfering with the plaintiffs' administration of the chilhar fund. The appeal is allowed with costs throughout. Any amount which has not been spent by Government since the date of the suit must be paid to the plaintiff.
1 (1923) F, A. No. 244 of 1921, decided by Macleod C. J. and Crump J., on April 6, 1923 (Unrep.).) that the inamdars were entitled under their grants to administer the chillar fund. On the other hand a suit, by a saranjamdar, that of Jalalpur in the Nasik District, was not successful. This Court held in Shrimat Dhairyasheelrao Yeshwanlrao Powar v. The Collector of Nasiff that he had no rights over the chillar fund because the re-grant of the saranjam to him was silent on the point and because the practice of the saranjam, which in the absence of any other evidence was the best index to the meaning of the grant, had been inconsistent with his claim. In 1923 there 1 was a new Government Resolution ordering a return to the old practice in the case of inam villages. But the orders were not modified in the case of saranjam villages, and the amount of ain chillar was remitted to the Government Treasury and not paid to the saranjamdars. Plaintiffs failing to get redress from Government then brought these suits, one in 1926 and the other in 1928.
3. The plaintiffs claim to recover the sums which they allege have been wrongly credited to Government and also pray for an injunction against the, recovery by Government of these sums in future. The basis of their claim is that they are saranjamdars, the grantees of the revenue of the villages. They do not allege any kadim hakk in respect of the chillar, nor need they do so. The ain chillar is not a specific grant like a kadim hakk. It is, as I have explained, merely the balance of the six per cent, fund left after payment of hakks and expenses. How and when the practice of setting apart six per cent, of the revenue for these purposes arose there is no evidence at all to show. But though it is clear that the saranjamdars were under a liability to pay the kadim hakks, and although they may also have been liable to incur expenditure on other village expenses, there is no evidence whatever to show that they were under any liability to set apart six per cent, of the revenues of their villages for these purposes.
4. The suits were defended by Government, firstly, on the ground that they are barred by Clause (f) of Section 4 of the Revenue Jurisdiction Act, secondly, on the ground that the chillar fund was excluded from the grant to the plaintiffs in 1892. It was also contended that in any event the plaintiffs cannot claim arrears of ain chillar for eleven years.
5. On the merits, according to the ratio decidendi in Shrimant Dhairyasheelrao Yeshwantrao Powar v. The Collector of Nasik, the plaintiffs' claim would seem to be clear enough. It is true that there is nothing in the grant of 1892, exhibit 178, about the right to administer the chillar fund, but that silence under the circumstances is in the plaintiffs' favour. Government rely on the fact that the kadim inams were deducted from the gross revenue of the villages in calculating the value for division. That of course had to be done if an equal division of revenue was intended, as it manifestly was. The kadim inams were liabilities, not assets. It is contended that the figures of the average revenue of the various villages, given in the correspondence prefixed to the Government Resolution, were arrived at after deduction of the whole chillar fund of six per cent, and not only after deduction of the amounts of the kadim inams. I am not sure that the evidence is sufficient to make that clear, but even assuming that that was the case, it does not in my opinion make any difference; for what was granted to the plaintiffs was not the amount of revenue mentioned in the Commissioner's letter, but half the saran-jam consisting of twenty-four villages. To suppose that Government intended to reserve to itself any portion of the revenue of those villages would be contrary to the whole tenor of the correspondence and of the Government Resolution. Indeed no such idea can have been in the mind of Government at all at that time. It was not until 1897, five years after the grant of the saranjam, that orders were issued about crediting the amount of the kadim hakks in the Treasury, and it was not till 1916 that it occurred to the Collector to question the saranjamdars' right to the ain chillar. From 1763 to 1916 the saranjamdars administered the chillar fund, so that the practice of the saranjam, ' the best index of the meaning of the grant,' is entirely in plaintiffs' favour.
6. Section 4 (f) of the Revenue Jurisdiction Act bars the jurisdiction of the civil Courts to entertain claims against Government to hold land wholly or partially free from payment of land revenue, or to receive payments charged on or payable out of the land revenue. The learned trial Judge was apparently of opinion that the case might come under this clause but that it was taken out of it by the provisos to Section 4 and also by Section 5, Sub-section (a). In my opinion neither the provisos to Section 4 nor Section 5 (a) have any application to the present case. The plaintiffs are not claiming to hold land. They are grantees of the revenue, not of the land, and these suits have nothing to do with land revenue claimed from or paid by the plaintiffs. But the point is that Section 4 (f) itself cannot apply. The chillar fund may no doubt be said to be payable out of the land revenue, but when this clause refers to claims against Government to receive payments payable out of the land revenue, it must mean payable out of the land revenue which is itself payable to Government. The clause cannot have been intended to bar a suit by an alienee of the land revenue to recover sums wrongly deducted from the land revenue payable to him. If so, Government might order the whole of the plaintiffs' revenue to be credited to Government and they would have no redress. As Mr. Coyajee who appears for the respondents has pointed out, land revenue is denned for the purposes of the Act in Section 3 as meaning all sums and payments received or claimable by or on behalf of Government. There is, therefore, no ground for holding that these suits are barred by the Revenue Jurisdiction Act.
7. That leaves only the question of the number of years for which the plaintiffs an; entitled to claim arrears. The contention on behalf of Government is that they are entitled to arrears for three years only under Article 62 or 63 of the Indian Limitation Act. It has not been necessary to go into this question because Mr. Goyajee on behalf of the plaintiffs has stated that he agrees to accept the contention of Government that arrears for three years only should be decreed.
8. The result is that the decrees of the lower Court will be modified by reducing the amounts awarded to the arrears for three years before suit. The appellants must pay the plaintiffs their costs in both Courts in proportion to the amounts decreed. Cross-objections are dismissed with costs.
9. I agree.