1. These are three appeals which arise out of three suits brought by the plaintiff to recover the amount of khoti dhara and khoti faida in kind for the years 1929-30 and 1930-31. The suits apparently were tried together and by consent of parties all evidence was recorded in Suit No. 601 of 1932, and it is agreed that the decision in appeal No. 133 of 1934 would govern the other two appeals.
2. The facts are, that Shirkes were the original knots of the village Medhegaon, District Kolaba. That village is what is called a kabulayat village. The plaintiff and his co-sharer khots purchased the khoti takshim belonging to the Shirkes by al registered sale-deed on February 9, 1924 (exhibit 35), and these suits were instituted by the plaintiff as the managing khot of the village. The claim as to the dhara was not disputed. The claim as to the faida for the years 1929-30 is now given up by the plaintiff, and the only question which arises in this appeal, and which was raised in the lower Courts, was whether the plaintiff was entitled to claim khoti faida in kind, or whether his only right was to recover the khoti faida in cash, as contended on behalf of the defendants. The trial Court rejected the plaintiff's claim, but in appeal the learned Assistant Judge reversed the trial Court's decision on that point, and the present appeal is taken from that judgment.
3. Two points are raised on behalf of the appellant. The first is that, on a true construction of the sale-deed under which the plaintiff and his co-sharer knots became the khoti owners of the village, the plaintiff was not entitled to recover the khoti faida in kind.
4. The second contention is that, having regard to the provisions of Section 38 of the Survey Settlement Act, the plaintiff is not entitled to recover the faida in kind.
5. On the first question, both the Courts have, on a true construction of the sale-deed, exhibit 35, read as a whole, come to the conclusion that by the sale the plaintiff acquired all the rights, existing or future, which the Shirkes, as khots, possessed. The appellant's argument is that although that undoubtedly is true, this general grant in favour of the purchasers is limited by an express term in the sale-deed, which restricts the power of the purchasers as regards this particular claim, and the appellant relies on that term.
6. Now, the sale-deed recites that the vendors were conveying not only the village in question in its entirety but also the rights, privileges and perquisites which they were enjoying at that time, or which they would become entitled to enjoy, or which would be granted to them by Government in future also. Then follows the description of the various lands. Then the sale-deed recites the payment of consideration and provides that the purchasers were to pass every year a kabulayat to Government. Then there is a covenant for quiet enjoyment, and along with that the particular term on which Mr. Desai relies is set out. That term is, that in respect of the land the purchasers should take the khoti faida at the rate of annas eight per rupee of assessment.
7. Now, the evidence shows that at this time the question whether the khots in this particular taluka were entitled to recover the khoti faida in cash or in kind was being agitated in the Courts, and that is clear from the old kabulayat, exhibit 55, which expressly refers to the litigation which was then pending between the Government and the khots. It appears that the last survey settlement was in the year 1902, and there is not the slightest doubt that at that time Government took a kabulayat in a particular form from the khots. For some reason or another, the form of the kabulayat was changed in 1914. The khots, however, refused to sign the kabulayat, and the question arose whether the kabulayat was legal or illegal, and whether the khots were justified in refusing to execute in favour of Government a kabulayat as altered. That litigation came ultimately to this Court, and ended in favour of the khots. This appears from a decision of this Court in the case of Ganpati v. Secretary of State. : AIR1925Bom44 The same question again arose in the case of Ganpati v. Secretary of State : (1931)33BOMLR1039 and, as pointed out by Mr. Justice Madgaonkar, the judgment of the High Court was to be taken as a continuation of the judgment in Ganpati's case 26 Bom. L. R. 754, It seems to me that it was in these circumstances that this particular term as to the payment of the khoti faida in cash was inserted and referred to the rate which existed at the date of the sale and without prejudice to the contentions of the khots against the Government (see exhibit 55). When the litigation ended against the Government, the old kabulayat was restored, and the fact remains that the plaintiff passed a kabulayat to Government in the old form (exhibit 54), and that admittedly gives him the right to recover the faida in kind. Apart from that, it is difficult for me to differ from the view taken by the Courts below, on a true construction of the deed read as a whole.
8. On the second point, the position is in this way. The plaintiff relied upon a kabulayat which was executed by the plaintiff in favour of Government on December 23, 1925 (exhibit 54), and if that kabulayat cannot be objected, to in any manner and was binding on the plaintiff-khot, there is not the slightest doubt that he would be entitled to recover the khoti faida in kind upon the terms of kabulayat, and that is not denied. The kabulayat expressly states that the khots were to recover the faida in kind. Therefore, the whole argument of the learned advocate for the appellant was directed to attack the binding force of that kabulayat and, if I may say so, its validity also. The argument is this, that under Section 38 of the Survey Settlement Act (I of 1865) it is no doubt open to Government either to confer larger rights or to limit the rights of the khots as regards their claims against their tenants, but this grant, or the curtailment of it, can only be made at the time of the general survey of the District, and that it is not open to Government to change the terms of a kabulayat at their sweet will. Section 38 is in these terms :-
It shall also be competent to such officer, with the sanction of the Governor in Council, to fix the demands of the khot on the tenant at the time of the general survey of a district, and the terms thus fixed shall hold good for the period for which the settlement may be sanctioned.
Therefore, Mr. Desai says that once the terms were fixed, they could not be altered during the period of the settlement, and he says that if there is any doubt, the case should be remanded for the trial of the question as to whether this kabulayat was taken at the time of the general survey of the district, or whether it was taken apart from any general survey. For, he says, that if it is proved that it was taken when there was no general survey of the district, then the kabulayat is bad. In my opinion this argument is not relevant to the question which arises in this case. The facts are that every year the khots had, to pass a kabulayat. That kabulayat fixed their rights and their liabilities, their rights as against the tenants, and their liability not to vary from or depart from the terms fixed by Government, and unless the kabulayat was illegal, they themselves could not resist, and could not claim anything from their tenants which was not sanctioned by the kabulayat. No question of illegality of the kabulayat was raised in the lower Courts, and apart from anything else, that question cannot now be allowed to be raised; But it seems to me that there is no substance even in this argument. I have set out the facts as to what happened in this taluka, which are clearly supported by the decisions in the two cases to which I have referred. When this Court held that the new kabulayat taken in 1914 which provided for the payment of the faida in cash was illegal, Government changed the form of kabulayat and restored the old form which they had adopted in 1902, and there is not the slightest doubt that that kabulayat provided that the payment of the faida was to be in kind and not in cash. If the kabulayat is illegal, then it is open to the appellant to take such action as he may be advised. So long as the kabulayat passed by the khot to the Government stands, it is difficult to see how the khot can go beyond the terms of the kabulayat and how the tenants can resist the terms of the kabulayat, and this seems to be clear from the observation of Mr. Justice Madgaonkar at pages 764-765, 26 Bom. L. R. It is clear from the rulings of this Court that once Government have taken a kabulayat in a particular form from the managing khot, he becomes entitled to recover the faida in accordance with the terms of the kabulayat. If any occupant is dissatisfied with the terms of the kabulayat, it is for him to take such steps as he may be advised against Government, or approach Government to get the kabulayat changed, but until that is done, I am unable to see how the managing khot can go beyond) the terms of the kabulayats, so long as it stands. It is well known that the practice of taking kabulayats was introduced to limit the demands of khots against their tenants. In this view, therefore, the appeals must be dismissed with costs.