Norman Macleod, C.J.
1. [After setting out the pleadings his Lordship said:-] Exhibit 471 is a memorandum dated the 12th November 1864 written by Col. Etheridge as Alienation Settlement Officer S.D. in reply to the Revenue Commissioner's endorsement of the 6th September. That document is not forthcoming but it would seem as if an inquiry had been made regarding certain lands which are set out in the memo. Items 16 and 17 are the 120 Mars now in suit. The memo para 4 says:-
These items were all settled to be Kadim in 1862 by Major Etheridge upon the evidence then forthcoming which although defective was the best procurable. There was no evidence available from the Peshwai records. It is remarked, however, that the land rolls referred to in the para preceding show that the Heblikars at the date of the acquisition of the village did not receive the items 15, 16 and 17 occupying 200 Mars as bona fide Khalsat but as Kamavishi, though as it appears from an order dated 1792 from P.R. Patwardhan a competent authority to Trimbakrao Anna, the Subedar of Dharwar Taluka, that the Kamavishi management at that date still remained as before and as there is nothing to show that any subsequent period even up to the present time had been altered with the exception of 71/4 Mars 13 bighas which at some time unknown had reverted to the Nadgirs, it may be allowed that the Kamavishi management of the remaining 1921/2 Mars and 6 bighas has assumed a permanency of tenancy which cannot be justly interfered with.
2. Major Etheridge then recommended that 71/4 Mars and 3 bighas should be made amenable to settlement as held from Government when the orders for the settlement of alienated villages should be authorised. The remainder Major Etheridge thought should belong to the Heblikars.
3. With regard to this document the learned Judge remarks:-
Exhibit 471 embodies the decision of the Inam Commissioner referred to in issue 10. The decision is in the form of a recommendation to Government. The decision is one under Bombay Act XI of 1852, although Col. Etheridge signed as Alienation Settlement Officer Col. Etheridge was both Inam Commissioner under Act XI of 1852 and Alienation Settlement Officer. The inquiry made under the Act in question related to claims against Government on account of Inam and other estates wholly or partially exempt from the payment of land revenue. It is hardly necessary to observe that the Act applied to the Watan lands of village officers and servants (See Schedule B, Rules VIII, X).
4. Unfortunately it is necessary to observe that by the 5th proviso to Rule VIII to adjudicate on Watans such as those in suit was expressly excepted from the powers of the Inam Commissioners, and that is probably the reason why Major Etheridge signed Exhibit 471 as Alienation Settlement Officer, making recommendations for the guidance of the Revenue Commissioner instead of recording a decision as Inam Commissioner: of Exhibit 312 which is the decision of the Inam Commissioner that the village of Hebli was Saramjam and not Sarva-Inam, Admitting that the advice of Major Etheridge was acted upon and that only 71/4 Mars and 3 bighas were entered as amenable to settlement, the question arises, not only whether Government was right in reversing that decision on the advice of their Revenue Officers in 1908, but also whether Government had the power to do so. The learned Judge considered that advice was based on an erroneous view of the effect of a judgment of the High Court in Civil Suit No. 83 of 1868, App. No. 3 of 1876, Ramchandrarao Raghunath v. Bhisto Shankar Nadgir (1877) P.J. 47. He then says: 'Upon issue 10 my finding is that the decision of Government upon Exhibit 471 is final.' But the issue was whether the decision of the Inam Commissioner and Alienation Settlement Officer was final. 'As far as I can gather from the evidence, that decision was passed not earlier than 1865 and was the only decision in the matter arrived at by Government under Act XI of 1852.' It will now be advisable to turn to the proceedings of the Revenue Authorities which culminated in the final order of 1908 so as to ascertain what view was taken by the High Court decision in R.A. 3 of 1876 and then I shall consider that decision so as to be able to form an opinion whether that view was correct. In 1875 after the passing of the Watan Act of 1874 the Nadgirs presented a petition to the District Deputy Collector asking that a Register of the Patilki and Kulkarniki Watan might be prepared. That officer Mr. Anding gave his decision on the 10th July 1884 (Exhibit 327). He said:
The Jaghirdars claim the Patil and Kulkarni's haks because they say there is no Kadim Watan for these offices...that the people now claiming cannot show enjoyment of office in their families and that they have carried on the duties through Karkoons employed by themselves. The Nadgirs on the other hand say that they have and hold Kadim Watan for the Patil and Kulkarniship. The points for consideration are.-
(1) Has there been a Kadim Watan for the Patilki and Kulkarniki office ?
(2) Have the individuals now claiming as Patils and Kulkarnis enjoyed the offices claimed in their families ?
The Nadgirs do not produce Sanads or other deeds of grant to show when they received the Watan claimed, but from the papers recorded in the case it appears that on account of the Nadgirs' Patilki and Kulkarniki of Hebli there was a grant of 200 Mars of land, that of this 73/4 Mars are still held for Patilki and Kulkarniki and that the rest of the land is with the Jaghirdars in Kamavisi because the Watandars did not pay up the judi due to the Inamdars as Mamool &c.; &c.;
From the papers recorded it seems to me that the Jaghirdars have conducted the duties of the Patil and Kulkarnis' offices for a long time through Karkoons in their pay.
For all these reasons I decide that the claims of the Jaghirdars and of the Nadgir claimants are both inadmissible and that the Patilki and Kulkarniki of Hebli are both Amani. The nominations to office should in future he made by Government and the Potagi should be paid by the Jaghirdars from the revenue derived from the Watan land in their possession.
5. The Collector's decision (Exhibit 326) was not recorded until the 14th February 1890. He agreed with Mr. Anding that the two offices should be treated as Amani or stipendiary, but he did not think it would be just or equitable to deprive the Jaghirdars altogether of their right of nomination, The parties concerned should be left to establish inter se their respective rights in a Court of law. Until they did so, no right of nomination should be allowed to either party.
6. On the 31st October 1890, the Commissioner S.D. (Exhibit 325) forwarded the papers to Government suggesting that they should revise the order of the Collector as it was the duty of the Collector under Section 25 of the Watan Act to determine the custom of the Watan as to service and what persons should be recognized as representative Watandars for the purpose of the Act and to register their names.
7. The Commissioner pointed out that there was a Patil and Kulkarni Vatan held at one time by the Nadgir family, consisting of 200 Mars which with the exception of 71/4 Mars 3 bighas had passed into the possession of the Hebli Inamdars and was entered as Kamavishi. The Nadgirs made several attempts to regain possession of portion of the estate but ineffectually until Bhisto Shankar obtained by suit restoration of 22 Mars from the heirs of Ramchandra Raghunath the decision being confirmed by the High Court in R.A. 3 of 1876. Their judgment made it superfluous to cite the numerous documents put in in the course of many years' correspondence between the applicants, the Commissioner's Office, and that of the Alienation Department which were held to be equally worthless. As the judgment turned chiefly on the interpretation of the term Kamavishi it might be held to apply for the purposes of the then inquiry to the whole of the Vatan which was entered under that heading and it went against the contentions of the Inamdars that the Vatan had passed absolutely into their possession. The Commissioner, therefore, advised that the Collector should be directed to hold a fresh inquiry and to pass an order on the evidence that might be produced before him according to law. Annexed to that letter was the precis of 38 documents produced by the Nadgirs and 23 produced by the Jaghirdars in support of their respective claims. Exhibit 324 is a Government Resolution of the 22nd November 1890 that the orders passed should be reversed and the Collector should be directed to hold fresh proceedings.
8. The Collector's decision dated the 30th August 1893 is Exhibit 323. After setting out the issues for decision No. (1) what is the custom of service No. (2) who are the representative Vatandars? the Collector proceeds:
Before addressing myself to decide these issues I must dispose of the preliminary issue, are the Nadgirs or the Jaghirdars Vatandars? This question I am not competent to decide. I refer the parties to a Civil Court for its adjudication. No doubt the High Court's interlocutory decree (in a suit between one family alone of the Nadgirs and one family alone of the Jaghirdars) alluded to above shows conclusively that the Nadgir family are Vatandars. The decision raises a strong presumption that the Jahagirdars as a whole are non-Vatandars and the Nadgirs as a whole are Vatandars. But then I cannot leave the questions for the determination of the Civil Court.
9. Then he recorded that the offices of Patil and Kulkarni formed part of one and the same Vatan, and as the village was a large one four officiators were required.
10. Nothing further appears to have been done until the 13th August 1904 when the Commissioner S.D. wrote (Exhibit 321) to the Collector: 'I have the honour to request that you will kindly hold proceedings on the hypothesis that neither side will have recourse to the Civil Court, and submit the case with your opinion as to whether either of the two parties is entitled to the Vatan (including lands and rights of service) and if so which.'
11. The Collector referred the question to the District Deputy Collector for disposal and that officer on the 30th June 1905 (Exhibit 319) sent to the Collector the proceedings he had held in the matter with a memorandum (Exhibit 320) which would serve as a report.
12. Mr. Moghe's opinion was that the Nadgirs and not the Jaghirdars had the Vatan rights of service. In G.R. No. 1532 of 8th March 1900 Government had accepted the opinion of the Commissioner S.D. that the decision of the High Court with regard to 22 Mars should be respected and so Government on the basis of that decision might be asked to modify their orders passed on the recommendation of the Alienation Settlement Officer's letter of the 13th November 1864 and to direct that the whole of the 200 Mars should be recognized as Kadim. If that was done 80 Mars for Patil Vatan and 40 Mars for Kulkarni Vatan would be available for service. The Alienation Settlement Officer's letter alluded to was based on the Sanad produced by the Jaghirdars but that document had been found unreliable by the High Court. As the High Court had held that the Jaghirdars had realised all their arrears of judi due on the 22 Mars while in their possession and that the Nadgirs were entitled to recover the land without payment, he suggested that the remaining Mars should be resumed by Government and regranted to the ousted family of Nadgirs.
13. The memorandum makes it clear that although the Collector in 1893 said he was not competent to decide who were the Vatandars, he had recorded two notes which do not appear in Exhibit 323. In the first he found that in his opinion the Nadgirs alone were Vatandars. Both divisions of the family should serve in future contemporaneously, if they were held to be Vatandars. The heads of families alone to serve inter se in turns. If the Jaghirdars were held to bo Vatandars it would appear that the custom was for them to serve by deputy. In the other note he set out who would be the heads of the families according as the Nadgirs or the Jaghirdars were held to be Vatandars.
14. On Mr. Moghe's report the Collector passed an order on the 28th November 1906 Exhibit 316. It is headed 'Proceedings held by the Collector of Dharwar for the formation of Hakdar Patraks of the Patilki (both revenue and police) and Kulkarni office Vatan of Kasbe Hebli under Bombay Act III of 1874.' The order with regard to representative Vatandars as decided by Mr. Moghe as entered in the two Vatan Registers was admitted to be correct and directions were given as to how the services were to be taken.
15. On the 17th July 1907 the Commissioner S.D. recorded his decision on appeal, Exhibit 315. The points for decision were (1) whether there was a Vatan still existing, (2) if so, who were the Vatandars, the Jahagirdars or the Nadgirs. The Commissioner found that there was originally a Vatan in the Nadgir family and that Vatan had never been conferred on the Jahagirdars. Accordingly he confirmed the Collector's decision in determining members of the Nadgir family to be representative Vatandars. But the entry of only so much of the Vatan land in the register as was thought necessary for the emolument of the officiators was altered and the whole of the Vatan lands was directed to be entered in the register as such, although it would not be necessary to take steps to recover for the Vatan from the Jahagirdars in possession any more than was required for the emolument of the officiators.
16. On the 4th June 1908 the Jahagirdars petitioned Government that the order of the Collector, confirmed on appeal by the Commissioner S.D., might be cancelled. It was answered by G.R. 10129 of the 7th October 1908 (Exhibit 318).
17. Government were of opinion (1) that the Collector could determine whether a particular individual was a Vatandar or not, where a finding on that point was necessary for finally deciding upon the right to offiiciate. His finding, however, was open to be revised and set aside by the Civil Courts; (2) that it was not a case in which the Collector could take action under Section 6 of the Watan Act; (3) that the Collector's decision determining members of the Nadgir family to be representative Vatandars should be accepted. The Jaghirdars, if so advised, could file a suit in the Civil Court; (4) that the Commissioner's order that the whole of the Patilki and Kulkarniki Vatan lands shown in the Alienation Settlement Officer's letter of the 9th June 1864 should be entered as such in the Vatan Register and that so much as was required for the emolument of the officiator should be recovered from the Jaghirdars in possession, should be upheld. The learned Judge says that the Vatan Register was prepared in 1908 and refers to Exhibit 297 which is a copy of the Vatan Register kept in the Mamlatdar's Office. There is a note at the bottom as follows: ' The Vatan Register was framed by the Collector on 28th November 1903 and was upheld by the Commissioner in appeal on 17th July 1907.' It is signed by the Mamlatdar and the date is 8th June 1908. Apparently the Judge must have taken the date on which the Mamlatdar made his note as the date on which the Vatan Register was prepared, but this is an obvious error. It was not until the 12th April 1913 that a contribution was levied against the Jaghirdars at the rate of Re. 1-9-0 per Mar. The Judge concludes:
I think these executive orders were passed under a complete misapprehension of the effect of the decision of the High Court reported in P.J. 1877, p. 47, and generally in ignorance of the legal position as it stood in 1884 when the inquiry was started. By that time the Nadgirs had been oust d by adverse possession from both the lands in the possession of the Jahagirdars and the offices of Kulkarni and Revenue Patil. As regards the effect of the Inam Commissioner's recommendation made in 1864 and recorded in Exhibit 471 I have come to a different conclusion from their Lordships because the evidence before me is more ample and proves that the Governor-in-Council upon that decision adjudicated upon the rights of the Jahagirdars and the Nadgirs inter se and that the Inam Commissioner's inquiry was carried on with the fall knowledge of the Nadgirs and after giving them every opportunity of leading evidence and putting forward their claims.
18. I am now in a position to deal with the proceedings in Suit No. 83 of 1868 and R.A. No. 3 of 1876. The plaintiff Nadgir claimed that 22 Mars appertained to his Vatan in the village of Hebli of which 33/4 Mars were in his possession, the remaining 181/4 being held in trust by the defendants Jaghirdars since 1832. The defendants replied that they were in possession of the land ever since the grant of the village in Jaghir to their ancestors.
19. The issues and the answers thereto were:-
(1) Is the land in dispute part of the Vatan property of the plaintiff Answer-yes.
(2) Is it held in trust by the defendants Answer-yes.
(3) Has the suit been properly valued Answer-yes.
(4) Is the claim barred by lapse of time Answer-No.
20. The trial Judge said on issues 1 and 2:
The fact that the plaintiff is the Vatandar Nadgir Patil and Kulkarni of Hebli is not denied by the defendants. From the documents (numbered) it is conclusively proved that the land in dispute is Vatan judi land belonging to the plaintiff, that in consequence either of the plaintiff's minority or his inability to pay the judi due thereon it was taken charge of by the defendants or their ancestors for temporary management about 1832 and that the plaintiff is entitled to claim restoration.
21. It does not appear as if the defendant in the trial Court placed any reliance on Major Etheridge's recommendation of 1834.
22. In the judgment of the High Court on appeal the defendants' case is stated as being that the village was granted to their family in Jaghir in 1748 and that the Vatan of the Patil had previously been confiscated by the then Government, that the land so confiscated was included in the grant and had ever since been in the enjoyment of the defendants' family. It being admitted by the plaintiff that the defendants were Jaghirdars and it being admitted by the defendants that the land in dispute originally formed the Vatan of the plaintiff's family and it being agreed between the parties that the land was in possession of the defendants because the plaintiff or his ancestors failed to pay the judi, the point in dispute was whether the plaintiff's rights had become absolutely forfeited or whether he could still re-assert these rights on certain conditions. Very little reliance could be placed on the greater portions of the documentary evidence produced, but the plaintiff's case really rested upon two grounds: first, that the laud in dispute had, ever since it had been in the defendants' possession, been entered in their account as 'Kamavishi' a term said to indicate temporary or provisional arrangement, and, secondly, that the late defendant Ramchandra, the natural father and adoptive uncle, had made certain admissions amounting to a recognition of the plaintiff's right. With regard to the Sanad of 1748 of which only a copy was produced the judgment says:
The Sanad appears bo us to be of no real value. It is most probably a forgery. If it be genuine it does not really dispose of the question in dispute. The word translated 'confiscated' is 'jupti' or 'zupti' which may mean temporarily attached and not absolutely confiscated.
23. What purports to be the original has now been produced by the Jaghirdar plaintiffs, but their case is no further advanced thereby than it was when the copy was produced more than forty years ago.
24. Then, after various other documents are considered, the judgment says:-
The most that can be said is that the plaintiff's documents appear to be worth as much as those of the defendants. If reliance is to be placed upon them the conclusion to be arrived at is that between 1748 when the village is alleged to have been granted to the defendants' family and the year 1832 the land in dispute was some time in the possession of the Patils but that at any rate whenever it was in the possession of the Jahagirdars it was entered in the village accounts as 'Kamavishi' etc. It seems very clear that land entered as 'Kamavishi' is land which for some reason or other had come under the management of Government or its assignee, for the purpose of collecting revenue but which has not been incorporated with the Khalsat land which is the absolute property of Government or its assignee. So long as such laud continues to be entered in the accounts as 'Kamavishi' and to be distinguished from 'Khalsat' the inference fairly arises that some reservation of the rights of the former holders of the land must have been intended.
25. Then various other documents are dealt with, which appeared to support the plaintiff's case, including Exhibit 152, a statement made by the defendants' agent before the Inam Commissioner in 1856 to the effect that the land in dispute was entered as 'Kamavishi', though it was managed like Khalsat. On this the judgment says:-
The Inam Commissioner in his report Exhibit 3367 (sic) entered the land accordingly, not under the head of alienated land but as land of which the proceeds formed part of the Jahagirdar's income. This entry no doubt correctly described the existing state of facts and it is not clear that the Inam Commissioner arrived at the conclusion that the land was absolutely the property of the Jahagirdars. But even if such were his conclusions, the plaintiff is not bound by a decision made in an inquiry to which he was not a party and the object of which was simply to settle the respective rights of the Government and the Jahagirdars.
26. Evidently here the decision of 1858 is referred to and not the recommendation of the Alienation Settlement Officer in 1864. Though that document was exhibited it does not appear that any reliance was placed upon it or that the Court came to any conclusion as to its binding character as the learned Judge seams to think. If it was conclusive, it is difficult to imagine that the Court would have ignored it.
27. In those days the proceedings of the Inam Commissioners would be far more familiar to the Courts than they are now, and the proper inference to draw, in my opinion, is that it was realised that Major Etheridge's recommendation in Exhibit 471 had no bearing whatever to help the defendants' case, while it would seem very unsafe to suggest that the Court in this case has better materials before it on which it can come to a better conclusion as to its effect on the question at issue.
28. No doubt we are concerned in this case with the remaining 90 and odd Mars, but the entries in the village accounts showed that all the 200 Mars were entered as 'Kamavishi,' and therefore everything that was said by the Court in R.A. 3 of 1876 is applicable to the land in this case. But the learned Judge has held that before the Revenue Officers began their inquiry in 1884 the Jahagirdars had acquired a title by their adverse possession not only to the Patilki and Kulkarniki Vatan but also to the offices of Kulkarni and Revenue Patil, since whatever the High Court may have held as to the suit land in the suit of 1868, the Jahagirdars in 1868 left off entering the Vatan land as 'Kamavishi'.
29. But assuming that the Nadgirs were entitled either by agreement or by custom to get back their Vatan lands on payment of judi, time would not begin to run against them until they were made aware that the Jahagirdars were setting up a title to hold the Vatan lands in their own right and there is no evidence that the Nadgirs were aware of any alteration in the method of keeping the village accounts. Nor is it easy to see how the Jahagirdars could acquire the offices of Patil and Kulkarni by adverse possession. In any event the learned Judge has omitted to notice that the Nadgirs in 1875 petitioned the District Deputy Collector so prepare the Vatan Register of Hebli (see Exhibit 815) and to admit their rights to serve as Patils and Kulkarnis although no proceedings were held on that petition until 1884.
30. On the other hand it would appear as if the plaintiff's suit except as regards the claim to recover the money paid to the defendant No. 1 was barred by limitation as the plaint was filed on the 16th July 1913 and the Collector's order was passed on the 28th November 1906 and the Vatan Register was framed on the same day. I have already pointed out that the learned Judge was in error in thinking that it was framed in 1908. As the plaintiff cannot, therefore, now impugn the order passed in 1906 the contribution levied in 1913 in consequence of that order cannot be recovered. It may be noted that the plaint refers to the Commissioner's order of 1907 and not to the Collector's order of 1906 while the suit is filed just within six years of the Commissioner's orders.
31. In my opinion the decision of the learned District Judge must be reversed. It was based on a wrong conclusion as to the binding effect of Major Etheridge's recommendations in 1864, and a wrong appreciation of the facts on which he found that the Jahagirdars had acquired a title to the lands and the offices by adverse possession.
32. The Appeal No. 132 of 1918 must be allowed and Appeals Nos. 157 and 159 of 1918 dismissed. The result will be that the plaintiff's suit is dismissed with costs in both Courts. One set of costs to defendant No. 1 and one to the other defendants Nos. 2 to 7. Defendant No. 13 must pay the costs of his appeal.
33. I agree.