1. The question in this appeal is whether the plaintiff appellant Khot is entitled to levy from the defendants respondents tenants the amount of rent as fixed in the last Survey Settlement, or whether he is entitled to recover ardhel (half the gross produce) in respect of rice lands and tirdhel (one-third produce) in respect of varkas lands, according to the mamuli vahivat or custom prior to the Survey Settlement. The trial Court held in favour of the Khot, the lower appellate Court in favour of the tenants. The plaintiff Khot appeals.
2. The parties belong to the village of Salshet in the Maugaon Taluka, Kolaba District. The original survey settlement was from 1864 to 1892. In 1869, the appellant's predecessor took a lease under Section 37 of the Khoti Leases Settlement Act (Bombay Act I of 1865). In 1902, the revised settlement came into fores but the demands of the Khot were not fixed under Section 38. Accordingly, the plaintiff appellant filed the present suit for rent from Shake 1839 to 1844.
3. It is argued for the appellant that in spite of the new revision survey of 1902 the Settlement Officer failed to fix the demands of the Khot, and the latter therefore was entitled to fall back on the demands prior to the previous survey of 1864. For the respondents, reliance is placed on the decision of Beaman J. in Secretary of State for India v. Sadashiv Abaji I.L.R. (1911) 36 Bom. 290 : S.C. 14 Bom. L.R. 77, and the 'ratio deeidendi at pages 302 and 303. It is argued that Government could not possibly have desired to relegate the tenants to the ante-quafced and oppressive system of payment of ardhel and tirdhel and enable the Khot to realise from the tenants sums considerably in excess of the assessment plus the faida or profit given to the Khot under the previous settlement.
4. It is unfortunate that the rights of the Khot are still so uncertain as to necessitate litigation of this character. In the present case, had the Settlement Officer exercised his right under Section 38 to fix the demand of the Khot and obtained sanction of the Governor-in-Council, the present question would not have arisen. The omission, therefore, is responsible for the present litigation. Under Section 38 the terms of the fixed rent at the old settlement held good for the period for which that settlement was sanctioned, that is to say, until 1892. In the case of Secretary of State for India v. Sadashiv Abaji, Government failed to provide for the expiry of the period of the old settlement and to have a fresh settlement in sufficient time. The question was whether, on the expiry of the old settlement and in the absence of a new settlement, the Khot was entitled to go back to the mamuli vahivat of the half share of paddy and one-third share of paddy in the varkas lands or whether he was confined to the rates under the old settlement; and it was held that, notwithstanding the absence of a new settlement, the Legislature intended the rates of the old settlement to continue both on general principle and from the fact (p. 303) ' that immediately upon the expiration of the fixed period Government demanded the assessment from the Khot on the same terms as before.' The present case must be distinguished on two grounds: The first ground is that there is actually a new settlement in force revising the assessment due to Government from the Khot. The second ground is that there is actually no evidence whence the intention of Government can be inferred either way. Under these circumstances, we are of opinion that it is impossible to construe the concluding words of Section 38 ' for the period for which settlement may be sanctioned' in the same manner as though they stood ' until Government altered those terms,' for that is the effect of the argument for the respondents. There is nothing upon the record to show why having this power, Government through the Settlement Officer failed to exercise it. However unfortunate the effect in this particular case from the point of view of the tenants, we are constrained, on the plain wording of the law, to agree with the view of the trial Court and to differ from the view of the lower appellate Court, which appears to have been based on the misunderstanding that there had been no application of this revised settlement. This ground of the lower appellate Court that ' There is no evidence to prove in this ease that the revision settlement has been applied to this village' is inconsistent with the pleadings and the evidence. Similarly, for the view of the lower appellate Court regarding estoppel there is no basis. In fact there has been no such misrepresentation so as to operate an estoppel. In the absence of any exercise of their power tinder Section 38 or evidence of intention to continue the rates of the expired settlement, we are of opinion that the plaintiff's claim is correct and that Government having failed to exercise its power :>f limitation and the amount of the old rent being in law expressly enforced for the period of the old settlement and not enforced after the revised settlement, the plaintiff cannot, on the facts of this particular case, be prevented from falling back upon his right under the mamuli vahivat for the three years prior to suit.
5. We allow the appeal, set aside the decree of the lower appellate court, and restore the decree of the trial Court by modifying rent to three and not to four years prior to suit, with costs throughout on the respondents.
6. The period of the present settlement is due to expire shortly. We direct that a copy of this judgment should be forwarded to Government through the Government Pleader.