1. This is an appeal against the decree of the District Judge of Ratnagiri dismissing the plaintiff's claim for a declaration that he has a Sardeshimuki right to recover two per cent. on the revenue of certain villages in Devgad and Malvan talukas in the Ratnagiri District. The plaintiff is the Chief of Bavda in Kolhapur State, and by a sanad granted by the Maharajah of Satara in the year 1704 A. D, he is given the right to collect Government dues in respect of certain villages in the Devgad and Malvan talukas and to take two per cent. of the collections. This right was recognised and continued by the British Government, but in 1889 the Collector of Ratnagiri recommended that the basis of payment should be permanently fixed at the average five years' receipts. This was after the service was commuted, Government collecting the revenue directly. The Collector's recommendation was accepted by the Commissioner, who passed an order accordingly, which was ultimately approved by Government. The effect is that the two per cent. of the collections given to the plaintiff are based on the old revenue as it stood before the introduction of the survey. In Malvan there has been a survey and a revision survey. Government had allowed the plaintiff two per cent, on the survey assessment but not on the revision survey assessment, while in Devgad, where there has yet been no revision survey, they refused to allow plaintiff two per cent. on the survey assessment, the result being that while the revenue rose, the amount received by the plaintiff remains unaltered, and he therefore seeks in this suit a declaration that he is entitled to two per cent. on the actual revenue. He also claims Rs. 10,358-0-8 as arrears. There is no dispute as to the correctness of the calculation. The defendant, the Secretary of State, raised an issue of limitation, and pleaded that the plaintiff was not entitled to claim the amount calculated either on the original or on the revised revenue settlement, but on the mamul jamabandi only, viz., the original assessment. The District Judge of Ratnagiri held that the suit was not barred by limitation, but that the plaintiff does not prove his right to have the amount of his claim calculated on the revenue as fixed by the survey settlement and the revised survey settlement. The plaintiff appeals.
2. It is admitted that when the services of the plaintiff along with otherhereditary District officers were dispensed with, which appears to have been about 1887, there was a commutation of five annas and a half in the rupee, which reduces the plaintiff's two per cent. to Rs. 1-5-0 per cent., but that is not in dispute in the present case. The only question in the present appeal is whether the plaintiff is entitled to a percentage of the revenue actually fixed, by the survey settlement or revision survey settlement, or whether he is only entitled to recover it on. the basis of the original assessment fixed before the introduction of the survey in the taluka in question. There is no dispute as to the plaintiff being granted the right to recover two per cent. of the revenue by the sanad of 1704, subject now to a deduction of five annas and a half in the rupee as already indicated. And the question is whether Government have the right to fix the amount on which the plaintiff's percentage is based. The point is that revenue has a tendency to be increased on each revision survey, and while the amount collected goes up, the amount received by the plaintiff remains stationary. The powers of Government to impose this condition on the right of the plaintiff are based, according to their case, on Bom. Act VII of 1863, commonly known as the Summary Settlement Act. It is under that Act that the Government resolution, Exhibit 64, was issued. Rules were made under it, and it is contended that the opinion of the Collector and the Commissioner and the final order of Government are all referable to that Act, and therefore the point for consideration in this case is whether the terms of Act VII of 1863 give power to Government to restrict the percentage claimable by the plaintiff to what is called the mamul jamabandi, i.e., the original assessment of the lands at the introduction of the survey settlement. The rules above referred to are made under the Act, but if the Act itself does not apply, then clearly rules made under it cannot strengthen Government's position. I will, therefore, first deal with the point as to the applicability of Act VII of 1863 to the circumstances of the present case.
3. Put very briefly, the contention of the plaintiff is that that Act deals with exemptions from land revenue, and not to a case of the present character where Government are bound under a grant made by their predecessors to make a certain payment to the plaintiff. The relations between Government and the persons contemplated by the Summary Settlement Act are those of creditor and debtor, the subject being bound to make certain payments to Government by way of land revenue and the like, and the Act being concerned with questions relating to exemption from that obligation, whereas in the present case the Government are in the position of a debtor bound to make certain payments to the creditor-plaintiff, and therefore the Act has no application, while it is contended on behalf of the Government that, in view of the definition of land in Section 32 of Act VII of 1863, the Act will cover the case of an allowance like that made to the plaintiff, and therefore under the Act and under the rules made thereunder, Government have the power to impose such conditions as they thought proper upon the recipient of the allowance. It will be, therefore, necessary to go in some detail into the provisions of Bombay Act VII of 1863. The Act is entitled The Exemptions from Land-revenue (No. 2) Act, 1863, and the heading is,
An act for the summary settlement of claims to exemption from the payment of Government land-revenue, and for regulating the terms uponwhich such exemption shall be recognised in future, in those parts of the Bombay Presidency which are not subject to the operation of Act XL of 1852 of the Council of India.
4. Then the preamble is:-
Whereas in districts which are not subject to the operation of Act XI of 1852 it is expedient to provide, with certain exceptions, for the summary settlement of all claims to hold land, wholly or partially exempt from payment of land-revenue, and for regulating the terms on which such exemption shall be recognised in future so as to preclude alt doubt in regard to the relative rights of Government and the holders of such lands, and further to make provision for the exceptions aforesaid ; It is hereby enacted,' etc etc.
5. The object of the Act, therefore, was to settle the claims of persons claiming to hold land wholly or partially exempt from the payment of Government land revenue, and by Section 32, Clause (B), the word ' Lands ' shall, for the purposes of this Act, be understood to include villages, portions of villages, shares ofthe revenues thereof, and landed estate of every description. But this definition must be read along with the other provisions of the Act relating to exemptions from land revenue. The whole scheme of the Act is that the holders of land are in the position of debtors, inasmuch as they are liable to pay land revenue to Government, and the Act provides for the settlement of their claims to hold their lands wholly or partially exempt from that payment. The present plaintiff is not a holder of land in British India, nor does he hold villages, portions of villages, or shares of the revenues of villages, What he holdsis the right to two per cent. of the gross collections of revenue in certain villages. It has been contended by the learned advocate for the defendant that under Section 2, Clause (2), Sub-clause 3rd, lands held for service include under the definition in Section 32 shares of the revenues held for service, and under Clause 3rd of the same section shares of the revenue held for service are resumable or continuable under such general rules as Government may think proper, from time to time, to lay down. But I do not think this contention is correct. It has further been contended on behalf of the plaintiff that even supposing Government did make a settlement with the plaintiff under the rules framed under the Act, the settlement which they have made is the commutation of five anas (sic) in the rupee, and that the rules do not (sic) of the basis on which the plaintiff's two per cent. (sic) at the average of five years' collections prior (sic) on of the survey settlement. Interrogatories we (sic) plaintiff to the defendant, and the answer is at (sic) 61. Government rely on paragraph 5 of Government (sic) No. 8260 dated September 15, 1887, issued under the rules made under Section 2, Clause (3), Sub-clause (3), of Act VII of 1863, and say, in accordance therewith the Commissioner by Exhibit 35 (sic) that the non-service settlement should be made applicable (sic) the amount to be paid should be fixed on the average of five years.' Government Resolution No. 6260 is Exhibit 54, p. 45, and there is not one word in it about fixing the basis of plaintiff's (sic) per cent. on the average of five years' collection prior to the survey settlement. It only refers to the commutation of (sic) on payment of five and a half annas in the rupee, and can (sic) no basis for the Commissioner's order at p. 26. It will (sic), therefore, that Government have exercised their power under Section 2, Clause (3), Sub-clause (3), of the Act in relation to the plaintiff' liability to service by directing a commutation of five and a half annas in the rupee, but in the proceedings relating to the commutation of service they did not deal with the question of the basis on which the plaintiff's percentage should be calculated. The order of Government confirming the order of the Commissioner at p. 36 is not on record. But that order has no relation to the proceedings regarding commutation, As has been already pointed out, the plaintiff does not at present dispute the reduction of five and a half annas in the rupee on the liability to render service being commuted. After consideration of the provisions of Act VII of 1863, I am of opinion that theycan not apply to a right of the nature claimed by the plaintiff in so far as the fixing of the basis on which his two per cent, is calculate is concerned. I attach no importance to the argument that the plaintiff has no claim to share in theincreased revenue collection. By the sanad he was given two per cent, on the Diwan Das, which is the Government assessment, whatever it might be and in the event of the revenue falling for any reason, such as (sic) or suspensions, he would be liable to bear his share of (sic) loss. So in fairness he should be equally liable to get his share (sic) the increase. The whole case depends on the applicability of (sic) VII of 1863, and from the preamble and heading of the Act and the provisions given above, I am of opinion that the Act (sic) only with payments to be made by the subject to Government, and has no reference to payments to be made by Government to the subject. Or to put it briefly, throughout the Act Government is regarded as a creditor while in the present case Government is in the position of a debtor. I am, therefore, of opinion that the view of the lower Court is wrong, and should be set aside. No question of limitation arises for the reasons explained by the learned District Judge, viz., that the plaintiff did not know of the increase in the revenue caused by the settlement until Government after a great deal of delay furnished him with the figures, and it was not till 1915 that the case was finally decided against him, and he then sued at once in 1916, the present suit being brought after he obtained his certificate under the Pensions Act, which was held by this Court to be necessary in the former suit. As a matter of fact the point of limitation was not very seriously pressed by the learned special Government Pleader.
6. The decree of the lower Court will be consequently reversed, and the plaintiff's claim decreed with costs in both Courts. The correctness of the amount of arrears claimed is not disputed.
1. I agree. The question as regards limitation may be shortly disposed of. It is true that the amount payable to the plaintiff was fixed in 1893, but the basis on which this amount was fixed was not communicated to him until after considerable delay. This will be found from Exhibit 32, replies to interrogatories administered by the plaintiff to the defendant. It is admitted in answer to question No. 8 that the information asked for in 1892 was given on August 9, 1897. Thereupon the plaintiff protested and appealed to the higher authorities and his request was finally turned down in the year 1915 (see answer to question No. 10 in the same exhibit). The plaintiff could not have rushed to the civil Court without exhausting his rights of appeal. Otherwise his suit might have been held barred under Section 11 of the Bombay Revenue Jurisdiction Act. I, therefore, agree that the plaintiff's cause of action accrued after the final orders of Government were communicated to him in 1915 and the suit is not barred by limitation falling as it does under Article 131 of the Indian Limitation Act. Article 14 has no application to the present case as the plaintiff is not seeking to Bet aside any order of a Government officer, his grievance being the refusal to give him his due percentage out of the revenue of the said talukas.
2. The real dispute in the case is as to the rights of the plaintiff under his Sanad on the one hand and of the Government under Act VII of 1863 on the other. The plaintiff's ancestors were given the Sanad Exhibit 47 in the year 1704 A. D. for services rendered to the Maratha kings. These services are recounted at great length in the document and with respect to the villages in question it is stated that the hak has been fixed at two per cent. of 'the Diwan Dast'as regards the villages of Tarfa Khare patan. The earns does not seem to have been expressly stated in the Sanad as regards the villages in Tarfa Salashi, but they appear to have been treated as part of the same watan (vide answer No. 1 to interrogatories Exhibit 65). The Government, however, claimed that under Bombay Act VII of 1863 they have the power to decide whether the watan, i.e., the Sardeshmukhi right shall be resumed or continued under such general rules as Government may think proper from time to time to lay down : vide Section 2(3), 3rd paragraph. They maintain that in accordance with this power they introduced what they call a non-service settlement in the year 1887 in the Ratnagiri District and that the said settlement was permanent and not liable to revision, Accordingly they fixed the amount payable to the plaintiff in respect of the right in dispute on the amount of the mamul assessment which was in force in Deogad.As regards the Malvan taluka they agreed in 1913 as a matter of grace to fix it on the survey assessment at the plaintiff's request.
3. It seems to me extremely doubtful whether this claim is sustainable. Act VII of 1863 was 'an Act for the summary settlement of claims to exemption from the payment of Government land revenue, and for regulating theterms upon which such exemption shall be recognised in future.' Its preamble recites that it is expedient to provide for the summary settlement of claims to hold lands wholly or partially exempt from payment of the land revenue, and for regulating the terms, etc. It is, therefore, an Act to deal with claims in which Government is a creditor and the Inamdar has to pay something to Government in respect of which he claims exemption. In the present case, the plaintiff is in the position of a creditor of Government having by ancient grant the right to obtain a certain percentage of the revenues of certain villages. To this it is replied that in Section 32 (B) of the Act it is enacted that the word 'lands' shall, for the purposes of this Act, be understood to include among other things shares of the revenues of villages, and landed estate of every description. It is urged that this Sardeshmukhi right is a share in the revenues of certain villages, and is, therefore, included in the word 'lands'. Looking, however, to the object of the Act, as stated in the title and in the preamble, it cannot be denied that what the draftsman had in view was the case of a claim made by a subject to hold land wholly or partially free from payment of Government land revenue. No doubt it may have been the intention to obtain the power of applying a summary settlement in certain circumstances to the case of a holder of a share in the revenues by making a rough deduction from the share without undertaking an elaborate inquiry into the right claimed, and for that purpose the definition of 'lands' may have been framed widely in Section 32(B). But it does not follow that the word 'lands' in Section 2(3), 3rd paragraph, is to be interpreted as necessarily including claims of the description we are now dealing with.
Where a term is interpreted in a statute as ' including' &c;, thecomprehensive sense is not to be taken as strictly defining what the meaning of the word must be under all circumstances, but merely as declaring what things may be comprehended within the term where the circumstances require that they should. ': Emperor v.Desouza : (1911)13BOMLR494
4. The principle has been taken from the following English cases: The Queen v. The Justices of Cambridgeshire (1838) 7 Ad. & E. 480 Meux v. Jacobs (1875) L.R. 7 Eng. & Ir 481 and Mayor, &c;, of Portsmouth v. Smith (1885) 10 App Cas. 364
5. In view of this principle it is for the Court to decide whether the expression ' lands held for service' in Section 2, Clauses (2) and (3), must be interpreted in the present case as applying to shares of revenue of villages or Amals. It is to be noted that where such Amals are intended to be dealt with they are expressly referred to as in Section 6, Rule 2, para. 2. It is also to be noted that the ' lands' referred to in at least two other paragraphs of cls. 2 and 3 of the section, namely, first, lands held under a treaty, and, secondly, lands granted or held as a Saranjam, the reference Is undoubtedly to lands in the physical sense and does not naturally apply to shares of revenue. The term is used, I think, in the same sense in paragraph 3.
6. Assuming that I am wrong in this view and that the expression 'lands' includes a right of the description in suit, it has yet to be considered whether the words of Section 2, Clause (3), paragraph 3, clothe the Government with the power they claim here. The paragraph runs as follows : ' Lands held for service shall be resumable or continuable under such general rules as Government may think proper, from time to time, to lay down.' Accordingly reading 'Amal' for lands it may be said that an Amal held for service is resumable or continuable under general rules that Government may lay down.
7. The general rules which Government claim to have made under this section are to be found in Government Resolution, Revenue Department, No. 1364, dated March 15, 1878, Exhibit 64. Even f those rules are applied it is not at all clear that the Government's contention in the present case should succeed. Rule 2 runs as follows:-
Lands originally held for service, and which have been continued, or may hereafter be continued, under Section 15, Bombay Act III of 1874, on condition of payment of a certain portion of the assessment thereof in commutation of service, shall continue to be held in accordance with the terms of the sanad issued or hereafter to be issued, in confirmation of the said commutation settlements.
8. This is the rule that would seem to be applicable to the present case inasmuch as it is claimed that a commutation settlement has been effected under the orders contained in Government Resolusion, Revenue Department, No. 6260, dated September 16, 1887. The last sentence of that Government Resolution is as follows:-
The Collector is therefore directed to enforce the non-service settlement on the basis of commutation of five annas and a half in the rupee, and to submit... for the entertainment of competent establishments from the proceeds of. . in each taluka of the district.
9. All that this Resolution authorises the Collector to do, therefore, is to excuse the watandar from the performance of the services which in this case was that of helping Government officers in the collection of land-revenue, and in return for this concession to reduce the payment due to him by five annas and a half in the rupee. It did not authorise the Collector to decide what the original payment (out of which the five annas and a half per rupee were to be deducted) should be, or to fax the amount of it in perpetuity or to increase or to reduce it in any other manner. What that payment was to be must necessarily depend on the terms of the original grant. It might have been open to Government under the rule to exact service up to the full value of the watan as stated in paragraph 2 of this very Government Resolution. They might perhaps have fixed the value of the commutation at any amount up to sixteen annas instead of five annas and a half in the rupee. They could, for example, have stated that the watandar could get only eight annas in the rupee and should be made to forego eight annas in respect of the exemption from helping in the revenue collections. But it was not open to Government under those powers to declare what was the original sum to which the watandar was entitled. That amount could only be determined on the terms and conditions of his watan, in this case to he found in the Sanad, Exhibit 47.
10. Under Section 2, Clause (3), therefore, all that can fairly be said is that, if it applies, Government have been invested with the power under the rules to discontinue taking the service and to fix by what amount the payment to the watandar should be reduced in respect of the exemption granted. Itgives possibly a power to the Government to extinguish an Amal but not to change its nature; they may reduce it but cannot, save by consent, change it from a sum capable of increase and decrease to a fixed sum. If the original grant is of Blackacre the Act does not empower Government to change it to a grant of Whiteacre.
11. Even if the proviso to Rule 4 of the rules mentioned in Government Resolution No. 1364 dated March 15, 1878, be held to be applicable to the present case, I do not see how the Government's case would be materially improved. Under that proviso no doubt the Government may direct the 'resumption of such lands or the continuance of the same, subject to such new conditions as they shall deem fit to impose, or the resumption of a portion of such lands and the continuance of the rest thereof, subject to such conditions as aforesaid.' But this does not empower them to change the nature of the original grant so long as any portion of it is continued. The new conditions must be conditions for the continuance of the original grant, and not changes that alter its nature. If the rule meant to give any such power it would be ultra vires as the Act does not contemplate the giving of any such power, as I have explained above. And in fact all that they have done is to direct the resumption of the portion represented by five and a half annas in the rupee and they have allowed the continuance of the remaining portion as before. What that remaining portion is, must be determined by the terms of the original grant.
12. We have, therefore, to consider the question what it was that was granted under the Sanad. The words there used are ' two per cent, of the Diwan Dast' which words indicate the Government assessment or jamabandi (see Molesworth and Candy's dictionary.) The Government assessment has always been a variable demand (except in the permanently settled districts of Bengal), and when you grant to a certain person a portion of the assessment, it must, I think, mean assessment as fixed from time to time. If it were otherwise, there would be no meaning in giving a share of the assessment but a grant of a fixed sum could be made in perpetuity. That was not what was purported to be granted to the plaintiff, and I do not see how Government could claim to restrict or alter the grant in any such manner. It is immaterial that they could reduce the grant to the point of extinction by increasing the amount of commutation for exemption from service. So long as they refrain from doing that and so long as any portion of the original grant is claimable by the grantee, the question as to what that original grant was, must necessarily be determined on the terms of that grant. I think, therefore, that the attempt to substitute the mamul or old assessment in place of the assessment for the time being was unauthorised by any provision of Act VII of 1863 and tantamount to a partial repudiation of the obligations accepted by Government.
13. In support of the view that Government have not in fact decided that the Sardeshmukhi is to be continued only on condition of its being calculated on the mamul or old assessment, reference may be made to answer 5 in Exhibit 65. Government's case is there based on the Resolution No. 6260 of 1887 and it is stated that in accordance therewith the Commissioner by Exhibit 35 decided that the non-service settlement should be made applicable and the amount to be paid should be fixed on the basis of the average for five years. An examination of the Government Resolution in question shows that it does not contain anything to support the last clause of this answer which I have underlined. What the GovernmentResolution No. 6260 authorised the Collector to do was to enforce the non-service settlement and to fix five and a half annas in the rupee as the amount to be paid by the watandar in lieu of exemption from service. It was the Commissioner who in Exhibit 35 directed that the average of five years' receipts should be taken as the basis of fixing the future payments to the District Hereditary officers which should be declared permanent. There is no authorisation by Government in the G. R. in question for determining in this way the amount on which the share of the watandar was to be calculated. Nor was there any authority in the GovernmentResolution for stereotyping such amount as permanently fixed and not liable to variation with a change in the assessment. It is immaterial that the Collector's orders were approved or ratified subsequently by Government. No such ratification appears on the record, and Government have deliberately based their case on the Government Resolution of September 16, 1887. They must, therefore, fail if it does not support their contention.
14. The matter might be looked at from another point of view. It may happen that on a revision the assessment may be reduced. In such a case the percentage thereof payable to the watandar would, according to the original grant, also be reduced in proportion. If such a contingency had occurred and if Government had come forward and said that the Commissioner had no authority to make a permanent settlement with the watandar on the strength of the Government Resolution referred to above, I think that the claim would have succeeded. It follows, therefore, that the Commissioner's order in the converse case is equally invalid. What the Act authorises is resumption in accordance with general rules framed by Government and not partial resumptions under arbitrary conditions imposed in individual cases by subordinate authorities and subsequently approved by Government as appears to have happened in the present case.
15. I, therefore, hold that the plaintiff is entitled to claim the amounts calculated on the revenue assessment for the time being and not on the old rates or on rates fixed arbitrarily at any particular time on the basis of five years' or any number of years' average.
16. I accordingly agree with the order proposed by my learned brother.
17. At the time of delivery of judgment the plaintiff's advocate asks that he may be given interest on the amount awarded from the date of the suit. Although interest has not been specifically claimed in the plaint, under Section 34 of the Code read with Order VII, Rule 7, it is within the discretion of the Court to award it. The Special Government Pleader says that the matter was not free from difficulty, and interest was not claimed in the plaint, and therefore the Court should not exercise its discretion by granting it. In this case the suit was filed on March 28, 1923, and the plaintiff has been kept out of his money for eight years. The amount awarded by the decree will carry interest at six per cent. per annum from the date of the suit till realisation.