Basil Scott, Kt., C.J.
1. The plaintiffs are tenants of certain rice lands in the alienated village of Ramraj in the Thana District. The defendant is the Inamdar of the village, being owner of a share of 14 annas and 6 pies and mortgagee of the remaining interest.
2. The plaintiffs sue for a declaration of their title to the varkas lands described in the plaint and to restrain the defendant from obstructing their enjoyment thereof and for restoration of possession if it be held that possession was with the defendant at the date of suit. In the first Court the plaintiffs' suit was dismissed but in the lower appellate Court the District Judge, though agreeing with the lower Court upon the questions originally raised, held that by reason of certain proceedings of the Revenue authorities taken on the introduction of the survey settlement to the village of Ramraj, the plaintiffs were occupants of the lands they claimed and entitled to hold them in perpetuity subject to payment of assessment to the defendant-Inamdar.
3. The rights of tenants of rice lands over adjoining waste land of their superior holder is, by custom in the Thana District, confined to the use of portions of the waste for obtaining the manure without which the rice lands could not be cultivated or the assessment on the rice land earned and paid. Upon the evidence the Subordinate Judge held, and the learned District Judge agreed, that the presumption that the user by the rice lands tenants of the varkas land was with the leave and permission of the Inamdar was unrebutted, that no permanent tenancy was proved and that the claim to hold the varkas lands as part and parcel of the rice lands was excluded by the pleadings and could not be sustained.
4. The learned District Judge in reversing the decree of the lower Court reasoned as follows.
5. The survey settlement was declared in the village on the 9th of July 1894. In the Register of occupants under that settlement the defendants were entered as occupants of the varkas lands in dispute. Section 217 of the Land Revenue Code provides that when a survey settlement has been introduced into an alienated village, the holders of all lands to which such settlement extends shall have the same rights as occupants in unalienated villages under the provisions of the Act. Therefore, the plaintiffs are entitled to all the rights of occupants of the lands in suit.
6. It is true that the entry of the plaintiffs' names was contrary to an order of the Revenue authorities passed on the 15th of October 1892 after hearing the plaintiffs and the Inamdar, it is true that on the 9th of July 1894 the very day of introduction of the survey settlement the Inamdar protested again the mistake which had been made, it is true that after inquiry the Revenue authorities rectified the Register by entering against the lands in suit the name of the Inamdar; but the learned Judge answers, that the order of the 15th of October 1892 was untenable on the face of it and that the inquiry held by the Revenue authorities was ultra vires and their rectification of the Register unauthorised.
7. In considering whether the plaintiffs can claim the benefit of Section 217 of the Land Revenue Code it is necessary to consider whether they were ' holders' of the lands in suit at the date of the introduction of the survey settlement.
8. Now 'holder' under the Code is defined by Section 3 (ii) as signifying the person in whom a right to hold land is vested. We have only to turn to the finding of the Subordinate Judge, which was concurred in by the District Judge, to convince ourselves that the plaintiffs were not' holders ' of the lands in suit:-their claim as occupants cannot therefore be supported by Section 217 of the Code. It is the only ground upon which the decree was passed in their favour. The defendants' appeal must therefore succeed.
9. We think it desirable however to examine the reasons of the learned Judge for holding that the rectification of the Register was unauthorised.
10. It is to be observed that he gives no reasons for stating that the order of the 15th of October 1892 was untenable. As regards the inquiry instituted by the Revenue authorities on the defendants' complaint, it was a departmental inquiry for the purpose of ascertaining why the order of the 15th of October 1892 had not been obeyed. Upon the explanation of the classier it appeared that the entry of the defendants' names instead of that of the Inamdar was due to a misunderstanding of the order. This seems to us a cause of error of the same nature with ' oversight' and one falling within the description of errors in Section 109.
11. As the order of the 15th of October had been passed hearing both the defendants and the Inamdar, we prepared to hold that the rectification of the Register so as to bring it into accord with the order was contrary JP s0 as justice. It was a case in which the Revenue Officer concerned was authorised under Section 197 to dispense with judicial or quasi-judicial inquiry. It is to be noted that inquiries of the latter nature are only imperatively prescribed by the Code Sections 59, 85, 87, 91, 93, 125, 129, 142, under all of which orders have to be passed of a very different nature to correcting a mistake in a Register.
12. We reverse the decree of the lower Court and restore that of the Subordinate Judge. The prayer for injunction relates apparently to the assertion of a permanent title by the plaintiffs and does not seem to be necessary in relation to the undisputed facilities accorded to the plaintiffs of taking 'rab' from the varkas lands. The plaintiffs must pay the defendants' costs throughout.