1. The main point argued in this appeal is whether Section 217 of the Bombay Land Revenue Code applies when a survey settlement is introduced into an alienated village with the consent of the alienee under Bombay Act I of 1865 and when the period of the settlement has expired after the Land Revenue Code of 1879 came into force. It is conceded that if this point is decided against the appellant, the other points decided against him by the lower Court need not be gone into. We have, therefore, heard the pleaders on this point only; and as we have come to the conclusion that Section 217 would apply to such a village, it has not been necessary to hear the appellant's pleader on the other points.
2. The facts relating to this point are few and undisputed. The survey settlement was extended to the village in question on the application of the Inamdar in the year 1870 under Bombay Act I of 1865 which was then in force. The period of this settlement expired in the year 1888. In 1879 the Land Revenue Code came into force. The Inamdar holds the village under a Sanad granted under the Summary Settlement Act (Bombay Act II of 1863). The plaintiff recovered from 1895 to 1910 higher assessment than that allowed under the survey settlement which expired in 1888. The Commissioner objected to his doing so in 1910, and hence the suit to establish his right to charge higher assessment.
3. It has been argued on behalf of the appellant that Section 217 of the Bombay Land Revenue Code is not applicable as the survey settlement was introduced prior to the Land Revenue Code of 1879 and not under Section 216 of the Land Revenue Code, or under any other law after the passing of the Land Revenue Code. In effect the contention is that the words 'when a Survey Settlement has been introduced' in the beginning of the section really mean 'when a survey settlement shall be introduced' and that Section 217 has no application to the Survey Settlements introduced into alienated villages prior to the enactment of Section 217. Taking, however, the words of the section in their plain and natural sense, I am satisfied that Section 217 applies not only when a settlement is introduced into an alienated village after the Land Revenue Code of 1879 came into force either under Section 216 but also when a Survey Settlement is introduced prior to it under the provisions of any law for the time being in force, like the settlement in the present case under Act I of 1865, No authority is cited on either side touching this point; and in the absence of any authority to the contrary I think that the section must be held to apply, as the words indicate, to a survey settlement which was introduced prior to 1879 and which expired long after the Land Revenue Code came into force as it would apply to a survey settlement indroduced under Section 216 after the Land Revenue Code came into force. It is clear, therefore, that in 1895 when the Inamdar levied higher rates than those allowed under the settlement with the permission of the Collector, he acted in derogation of the lawful rights of the holders of lands in his Inam village.
4. It is not contested, and it seems to me clear, that in virtue of the provisions of Section 217 the holders of lands in an alienated village into which a survey settlement has been introduced are liable to pay like the occupants in an unalienated village only the assessments fixed at the first survey settlement even after the expiry of the period of the settlement so long as a revised survey settlement is not introduced.
5. The terms of the Sanad do not make any difference in the position of the Inamdar. If Section 217 applies, I do not think that under clause 3 of the Sanad the Inamdar can levy rates higher than those which are lawfully leviable from the holders of the lands subject to the provisions of Section 217. All the lawful rights of the holders of lands are expressly saved by the clause. The plaintiff's contention, therefore, on this point must be disallowed.
6. In holding that Section 217 applies to this alienated village I have not overlooked the view taken by Mr. Justice Beaman in Pandu v. Ramchandra Ganesh ILR (1917) 42 Bom. 112 : 20 Bom. L. R. 16 that the section does not apply to an alienated village where the grant is of the soil and not merely of the royal share of the revenue. That view, however, has not been accepted in the case of Dadoo hin Bhatoo v. Dinliar Vishnu ILR (1918) 43 Bom. 77 : 20 Bom. L.R. 887 , in which it has been held that an alienated village, whether the grant be of the soil or merely of the royal share of the revenue, would be within the scope of Section 217. We are bound by this decision, and I agree with the view taken in that decision that the application of Section 217 to an alienated village is not dependent upon the grant being merely of the royal share of the revenue.
7. The result is that the decree of the lower Court is affirmed and the appeal dismissed with costs.
8. The appellant is the Inamdar of the village of Bondaa. The survey settlement was introduced into his village under Section 49 of the Survey Settlement Act I of 1865 in the year 1870. The period for which the Settlement was guaranteed was eighteen years. This expired in the year 1887-88. There was a clause in his Sanad which was issued to him under the Summary Settlement Act in 1879 which guaranteed all the rights and privileges of the minor Inamdars, cultivators or sub-tenants, after the expiration of the survey settlement. The Inamdars nevertheless raised their assessment in the year 1895 and continued to levy the increased assessments up to the year 1909-10. This had been allowed with the approval of the Collector, hut was then decided to be illegal and was prohibited by the Commissioner whose order was confirmed in 1911 by the Governor-in-Council. The appellant has contended that he was free to raise the assessments after the expiration of the period of the Survey Settlement and that would no doubt be the case if all the rights and privileges of the minor Inamdars, cultivators or sub-tenants ceased with the expiration of that period. It has been necessary, therefore, to consider what those rights and privileges were at the expiration of the period of the survey settlement under the law relating to land revenue. It has not been disputed that the result would be the same whether the Inamdar was the alienee of the soil or merely alienee of the land revenue as decided in the case of Dadoo bin Bhatoo v. Dinkar Vishnu.
9. The rights and privileges of holders of land in unalienated villages would seem to be the same to all practical intents and purposes under the Survey Settlement Act I of 1865 as under the later Act, the Bombay Land Revenue Code of 1879. Those rights and privileges have been discussed at length in the case of The Secretary of State for India v. Sadashiv Abaji ILR (1911) 30 Bom. 290 : 14 Bom. L. R. 77, and the sum and substance of the discussion was this that they were entitled to continue in possession of their lands at the assessment already settled pending sanction to a revision settlement being granted by the Governor-in-Council. If the holders of lands were bound by the same rules in the alienated village of Bondan, then they also would be entitled to hold their lands on the assessment under the old settlement pending sanction being granted to revised rates by the Governor-in-Council. No such sanction was obtained. On the contrary it was expressly repudiated in 1911 by the Governor-in-Council. The question whether the holders of lands in this alienated village of Bondan have the rights and privileges of holders in unalienated villages would depend upon the correct interpretation of Section 49 of the Survey Settlement Act I of 1865 and the substituted Section 21.7 of the Bombay Land Revenue Code of 187 9. It seems to me that they were entitled to rights and privileges similar to those of holders in unalienated villages both under the proviso to Section 49 of Bombay Act I of 1865, and under the provision of Section 112 read with the wide expressions used in Section 217 of Bombay Act V of 1879. The words used in the opening clause were: 'When a survey settlement has been introduced under the provisions of any law for the time being in force into an alienated village'. Those words would in their ordinary meaning include a survey settlement introduced previously under a previous law in force as well as a survey settlement introduced subsequently under a subsequent law for the time being in force. The words used in the following clause were: 'The holders of all lands to which such settlement extends shall have the same rights in respect of the lands in their occupation as holders of lands in unalienated villages have under the provisions of this Act.' The plain meaning of those words would be that they would from the time of the introduction of the Act have the same rights and privileges as holders in unalienated villages under the Act. That would include the right to hold their lands upon the assessments previously settled under the previous Act which would be deemed to be in force by reason of the provisions of Section 112 of the new Act pending sanction to revised rates of settlement being granted by the Governor-in-Council under the new Act. If that view be correct, then the levy of the increased assessments without such sanction was illegal and was rightly forbidden by the Commissioner and his order rightly confirmed by the Governor-in-Council. It should also be mentioned that were the other view held, it would only have effect up to the year .1914, because in that year a revision survey was formally sanctioned on the application of the Inamdar to Government under Section 216 which would in any case be governed by the provisions of Section 217 of the Bombay Land Revenue Code of 1879.
10. It seems to me, therefore, that the appeal ought to be dismissed with costs.