1. The plaintiffs sue to recover possession of certain lands in the Kolaba District, on the ground that they were entitled so to do by reason of their occupancy tenants having assigned those lands to other persons without permission of the plaintiffs, who were the khots.
2. The learned Trial Judge has cited a number of decisions, which establish that alienation by a khoti tenant of his khoti lands in the Kolaba District works as a forfeiture.
3. The lower Appellate Court, accepting that custom as established, discusses a counter-custom set up by the defendants to the effect that khoti tenants were entitled to transfer their holdings, and he holds the Custom is not proved.
4. The learned Pleader for the appellants argues that although the custom may be established that a khoti tenant cannot transfer his occupancy holding without the permission of his khot, it does not follow that the khot can upon such transfer enter upon the land to the prejudice of the transferee. It may be that the expression forfeiture' is inappropriate to the consequences which result from an unauthorised transfer of an occupancy holding, but the result must be that the khot is entitled to re-enter for the reasons stated by Sir Richard Couch in the analogous case in Bengal of the zemindar and his occupancy tenants. In Narendra Narayan Roy Chowdhry v. ishan Chandra Sen 13 B. L.R. 274 : 22 W.R. 22, the learned Chief Justice says: If a ryot having a right of occupancy endeavours to transfer it to another person, and, in fact, quits his occupation, and ceases himself to cultivate or hold the land, it appears to me that ho may be rightly considered to have abandoned his right, and that nothing is left in him which would prevent the zemindar from recovering the possession from the person who claims under the transfer.' That decision was applied by a Bench of this Court' to the case of an unauthorised' sale of land by a khoti tenant: see Nagardas Sobhagyadas v. Ganu Balu (1891) P.J. 107. The remedy appears to be appropriate, even if it be taken that prior to the passing of the Khoti Act of 1880, no khot was anything more than a farmer of revenue, for he was under an obligation to pay a certain revenue to Government, and if the occupancy tenant, to whom he looked to render his share of the revenue, transferred the land to some one whom the khot did not approve of, the remedy of the khot would be to go on to the land and collect the produce for himself so as to be able to discharge his obligations to Government. The finding, however, of custom in favour of the plaintiffs does not dispose of the case, because the receipt book shows that the transferees have paid khoti profits to the khot which have been accepted. The contention of the defendants in appeal to the lower Appellate Court was that they had paid dhara and fayda since 1897, and the plaintiffs knew of their possession under the transfer, but accepted the dhara and fayda at their hands, and, therefore, had indirectly consented to the alienations, and had no right to maintain the suit The learned Trial Judge disposed of that point by saying that the fact of plaintiffs' knowledge of the transfers was not proved by the defendants. The learned Judge with appellate powers, however, notwithstanding the reference to the point in the judgment of the Trial Judge, says: 'The appellant did not urge in the Court below that the plaintiff knew of the alienation to him, and it is now too late to urge that plea.' He appeal's to have overlooked the reference to the point in the judgment of the lower Court. But it is necessary for the decision of the case that that point should be decided. We must, therefore, remand to the lower Appellate Court for decision the issues---When the plaintiffs first knew of the alienations by the khoti tenants to the other defendants, and whether with such knowledge they accepted payment of dhara or fayda from the transferees, and whether such conduct amounts to a waiver of forfeiture or ratification of the transfer? The finding to be returned within one month. No further evidence to be taken.