1. The questions which arise in the appeal are, first, whether the village of Nagaral is a watan village of which the defendant is a watandar and whether as such watandar he is a grantee of the soil of the village. The second question is, whether the paintiffs have acquired any occupancy rights under Section 217 of the Land Revenue Code by reason of the introduction of the survey settlement in 1898 into the village. It is clear from the evidence that several villages including the village of Nagaral were granted in inam to the defendant's family long before the beginning of the Peshwa rule ; and it is equally clear from the evidence that in the village of Nagaral itself there were twenty-one lands known as chavarat which had been granted as a watan to the family of the defendant even before the grant of the village itself.
2. The question then is whether the learned Judge was right in holding that the defendant had; established that he was the watandar of the village and that he was the grantee of the soil in the village. The learned Judge has very exhaustively dealt with the evidence led on behalf of the defendant on this question and as we are in agreement with the conclusion reached by him, I do not propose to refer to the evidence in detail.
3. The next question is whether the plaintiffs have become ' occupants ' of the lands in their possession by reason of the introduction of the survey settlement in 1898 under Section 217 of the Bombay Land Revenue Code of 1879. Section 217 of the Bombay Land Revenue Code, as it stood prior to the amendment in 1913, was in these terms :-
When a survey settlement has been introduced under the provisions of the last section or of any law for the time being in force, into an alienated village, the holders of all lands to which such settlement extends shall have the same rights and be affected by the same responsibilities in respect of the lands in their occupation as occupants in unalienated villages have, or are affected by, under the provisions of this Act, and all the provisions of this Act relating to occupants and registered occupants shall be applicable, so far as may be, to them.
'Holder' was denned in Section 3(II) of the Code before the amendment as follows :-' holder' or ' landholder' signifies the person in whom a right to hold land is vested, whether solely on his own account, or wholly or partly in trust for another person, or for a class of persons, or for the public, ft includes a mortgagee vested with a right to possession.
Occupant' was defined in Section 3(16) of the Code before the amendment as follows :- ' occupant' signifies a holder of unalienated land, or where there are more holders than one, the holder having the highest right in respect of any such land.
4. In 1913 the Code was amended and the only amendment made in so far as Section 217 is concerned was by removing the word ' occupants ' in that; section and substituting for it the words ' holders of land.' The amended section is in these terms :-
When a survey settlement has been introduced under the provisions of the last section or of any law for the time being in force, into an alienated village, the holders of all lands to which such settlement extends shall have the same rights and be affected by the same responsibilities in respect of the lands in their occupation as holders of land in unalienated villages have, or are affected by, under the provisions of this Act, and all the provisions of this Act relating to holders of land in unalienated villages shall be applicable, so far as may be, to them.
5. There was also alteration in the definitions of the two terms ' holder ' and ' occupant', and they are as follows :-
3(11). 'to hold land', or to be a ' landholder' or ' holder' of land means to be lawfully in possession of land, whether such possession is actual or not.
3(16). 'Occupant' means a holder in actual possession of unalienated land, other than a tenant : provided that where the holder in actual possession is a tenant, the landlord or superior landlord, as the case may be, shall be deemed to be occupant.
So that it is clear by the amendment that a tenant is not an occupant.
6. Now Mr. Thakor says that as the survey settlement was introduced in 1898, the rights of the parties must be governed by Section 217 as it stood then, and he says that his clients are not bound by the amendment of 1913, the argument being that certain rights had vested in them under Section 217, that is, in other words, they had become ' occupants ' with fixity of tenure and fixity as to the payment of assessment when the survey settlement was introduced in the village, and these rights could not be taken away by the amendment of 1913 by which of course a ' holder ' would still remain a ' holder ' within the meaning of the Bombay Land Revenue Code. In other words his argument is that the section has no retrospective effect. Secondly, he says that assuming that the section as amended in 1913 applies, even so, as has been held in Nilaji v. Nagindas (1932) 35 Bom. L.R. 150 the introduction of the survey settlement has not under Section 217 the effect of altering the contractual obligations between the parties and that the documents executed and orders passed by the defendant's father conferred upon the plaintiffs and their ancestors occupancy rights ; and that being so, those rights could not be disturbed. He. further says that the defendant is not entitled to recover possession of the property and the plaintiffs are entitled to the declaration sought for. On the other hand, it is argued by Mr. Desai on behalf of the respondent that Section 217 does not apply to property which is watan property within the meaning of the Bombay Hereditary Offices Act. If Section 217 does not apply, then the question as to whether the amendment of 1913 to Section 217 has retrospective effect or not need not be considered.
7. Now it is a clear principle of law that when there is a conflict between a special statute dealing with a special kind of property and a general statute enacted subsequently and dealing with all kinds of property, it is by the former that the rights of the parties must be governed with regard to the special kind of property. The principle is well expressed by Lord Hobhouse in Barker v. Edger (1898) A.C. 748 and the same principle is laid down by Maxwell in his well-known treatise, Interpretation of Statutes, 7th edn., at p. 153. in these words :-
A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus mm derogant, or in other words, ' where general words in a later Act are capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation...that earlier and special legislation is not to be held indirectly; repealed, altered or derogated from merely by force of such general words, without any indication of a particular intention to do so.' In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act, or, what is the same thing, by a local custom. Having already given its attention to the particular subject and provided for it, the Legislature is reasonably presumed not to intend to alter that special provision by a subsequent general enactment unless that intention be manifested in explicit language, or there be something which shows that the attention of the Legislature had been turned to the special Act and that the general one was intended to embrace the special cases provided for by the previous one....
8. The question therefore is, whether there is a conflict between the Watan Act and the Land Revenue Code. The Watan Act was enacted by the Legislature in 1874 and: the Bombay Land Revenue Code in 1879. The latter deals with every kind of property, the former only with regard to special kind of property known as the watan. The preamble to the Watan Act is in these terms :-
Whereas it is expedient to declare and amend the law relating to Hereditary Offices ; it is hereby enacted as follows :--
9. The preamble to the Bombay Land Revenue Code is as follows :-
Whereas it is expedient to consolidate and amend the law relating to Revenue officers, and to the assessment and recovery of Land Revenue, and to other matters connected with the Land Revenue Administration (in the Presidency of Bombay); it is hereby enacted as follows :-
10. The only question therefore is whether there would be a conflict between the two statutes, if the effect of Section 217 of the Bombay Land Revenue Code is as Mr. Thakor says. Now under the old Section 217, after a survey settlement is introduced into an alienated village, the holders of all lands are in the same position as occupants in unalienated villages under the Bombay Land Revenue Code.
11. The rights of an occupant in an unalienated village are laid down in Section 68 and 73. Section 68, so far as material, provides :-
An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited, or if the period is unlimited, or a survey settlement has been extended to the land in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same, according to the provisions of this Act, or of any rules made under this Act, or of any other law, for the time being in force, and on the fulfilment of any other terms or conditions lawfully annexed to his tenure.
Section 73 provides :
An occupancy shall, subject to the provisions contained in Section 56, and to any conditions lawfully annexed to the tenure, and save as otherwise prescribed by law, be deemed an heritable and transferable property.
So that the position shortly is that an occupant cannot be turned out of the lands he holds so long as he is willing to pay the amount due on account of the land revenue, and his holding is, subject to any conditions lawfully annexed to his tenure, heritable and transferable property.
12. Under Section 217, as amended by the Act of 1913, the position is that when a survey settlement is introduced in an alienated village, the holders of land therein, if they are tenants, will remain mere tenants liable to their tenancy being terminated in the manner provided by the Code, and they do not become occupants. Further, the holders, if tenants, will not be raised to the status of occupants having a right to pay to the inamdar nothing more than the survey assessment. In the former case there is fixity of tenure and liability to pay a fixed amount by way of assessment, in the latter, this is wanting.
13. If therefore a watandar transfers property, say by way of a permanent lease, and if the old section applied, then his successor cannot challenge the alienation and will be bound by it even on the death of his predecessor. But this clearly is contrary to the principle laid down in Section 5 of the Bombay Hereditary Offices Act. That section says :
Without the sanction of Government... it shall not be competent-(a) to a watandar to mortgage, charge, alienate or lease, for a period beyond, the term of his natural life, any watan, or any part thereof, or interest therein, to or for the benefit of any person who is not a watandar of the same watan...
Under that section therefore an alienation-and a permanent lease would be such an alienation-made by a watandar in contravention of Section 5 is not binding on the successor of the alienating watandar. If therefore the old Section 217 applies to watan property, then the alienation will be binding on the successor, and it is clear that the object with which Section 5 of the Hereditary Offices Act was enacted will be frustrated. It is well known that this section was enacted in order to ensure that the property which is attached to a watan or which formed part of a watan would be forthcoming for the purpose of the services attached to the office and that really is the object of Section 5. Whether services have ceased to be demanded or not, the law is that it is not competent to a watandar to alienate property beyond his lifetime. It seems to me, therefore, that a conflict will arise, and upon the general principle of law, to which I have above referred, Section 217 of the Bombay Land Revenue Code must be left out of consideration in the case of watan property. The result of accepting Mr. Thakor's argument would be that it would be competent to a watandar to transfer watan property from time to time and that property will go out of the watan family, and all that the watandar then may do to make his alienation binding on his successor would be to agree to a survey settlement being introduced. The result would be that the transferees would continue in possession so long as they pay revenue agreed upon notwithstanding the fact that the transferor is dead and is succeeded by his heir. I do not think that this result was intended or contemplated by the Legislature. There is not a single case forthcoming in support of this contention.. All the cases referred to are cases of mere inams which were not watans. The whole object of Section 217 is to ensure that the possession of a holder will not be disturbed so long as he is willing to carryout his contract with the inamdar. It is difficult to see how merely because he is willing to carry out his contract, that he could, in spite of the prohibition under Section 5, be allowed to override the rights which the Watan Act gives to the successor of the inamdar by whose act the property came to be in the possession of the holder.
14. I think, therefore,; the argument advanced by Mr. Desai that Section 217 could not have been intended to apply to watan property seems to be well founded. But assuming that the argument is not correct, even then having regard to the words in the concluding part of the section, it is clear that it is not in every case that all the rights which an occupant has in an unalienated village which as a matter of course will be conferred upon a holder in an alienated village. Section 217 does provide that the holder shall have the same rights and be affected by the same responsibilities in respect of the lands in their occupation as holders of land in unalienated villages have, or are affected by, under the provisions of this Act, and all the provisions of this Act relating to holders of land in unalienated villages shall be applicable 'so far as may be ' to them. So that in such cases the alienation is good during the lifetime of the alienor, and the result of the introduction of the survey settlement would be to make the alienee an occupant but only during the lifetime of the alienor. But it is difficult to see how after the death of the alienor his successor is bound.
15. Mr. Thakor next argues that even after the introduction of the survey settlement, the parties would be bound by contractual obligations subsisting between them. That no doubt is correct. It has been repeatedly held by this Court that the effect of Section 217 of the Code is to render the occupants in alienated villages subject to a settlement like the occupants in unalienated villages, but that the section does not take away any pre-existing legal rights between the parties. Where, therefore, there are previous contractual rights between the inamdar and the holders under him regarding the payment of the land revenue, these rights are not taken away even after the introduction of the survey settlement into the inam village. But I am unable to hold on the evidence that as the result of the alienations in favour of the plaintiffs and their ancestors, the latter obtained any occupancy rights. The alienations were nothing more than permanent leases of watan lands transferred subject to payment of assessment only, in spite of the fact that the lands were described sometimes as sheri and sometimes as rayatava and in spite of the fact that khatas of the transferees were opened. They remained what they were, merely permanent tenants.
16. This brings me now to the only remaining point, that is as regards the effect to be given to the amendment of 1913. There are four cases of this Court in which it has been assumed that Section 217 after the amendment of 1913 would apply to cases where the survey settlement has been introduced long before 1913. In other words the rights of the parties must be regulated by the section as it stood at the time the suit is brought. These are Suryajirao v. Sidhanath : AIR1925Bom435 , Kondi v. Vithalrao (1925) 28 Bom. L.R. 424, Nilaji v. Nagindas (1932) 35 Bom. L.R. 150 and Krishnarao Anandrao v. Secretary of State : AIR1935Bom265 . 'In all these cases it is clear from the facts that the survey settlement was introduced in the respective villages long before 1913 and yet it was held that the amended Section 217 would apply and would govern the rights of the parties. But it is said that the question which is specifically raised before us was not raised in that form in any of these cases, and that appears to be correct with regard to the first three of these cases. But the position is quite different in the last case, Krishnarao Anandrao v. Secretary oj State. It was argued in that case on behalf of Government that Government acquired certain rights in 1904 under the Code as it then existed, and that to construe the amendment in the Act retrospectively so as to take away vested rights would be to offend against well-settled canons of construction. Dealing with that contention the learned Chief Justice observed as follows (p. 353) :
In three cases in this Court on which Mr. Kane relies, Suryajirao v. Sidhanath, Kondi v. Vithalrao and Nilaji v. Nagindas, this Court seems to have assumed that the rights of the parties in a case of this sort have to be governed by Section 217 in its amended form, and I think that view is correct. The plaintiff alleges and proves that the tenants of the land held as tenants-at-will, and to answer that case Government have to assert that the tenants acquired some other right. To do that they must rely on Section 217 of the Bombay Land Revenue Code, and prima facie, they must reiy on that section as it existed on the date when the suit was started. In order to succeed, they would have to rely on the Code as it formerly existed, and allege that when the Code was amended their existing rights were maintained. I can see nothing in the Code to support that contention. I think, therefore, that even apart from the proviso to Section 68, they must also fail on the ground that their rights are governed by Section 217 in its present form.
17. These observations in my opinion seem to dispose of the argument now advanced on behalf of the appellants, and this decision is binding on us. But apart from that it seems to be difficult to hold that by the amendment of 1913 the rights of the subjects or persons concerned were saved when the amendment was made. There is nothing in the amending Act to suggest that the holders of lands in villages in which survey settlement was introduced before 1913 would remain occupants notwithstanding the amendment made in 1913. Government admittedly have the right to regulate relations between the holders of lands in alienated villages as in unalienated villages. If by their legislation at one time they conferred certain rights on the holders they cannot be precluded from taking away those rights by later enactment. Government were fully aware when the Amending Act of 1913 was passed that survey settlements had been introduced between 1879 and 1913 in many villages. If they had intended that the position of those who were affected by this survey settlement prior to 1913 would continue to be unaffected by the proposed amendment, it is quite clear that they would have said so. The amendment does not say that it should apply only to villages settled after 1913 nor does it save any rights acquired prior to 1913. That being so, I have no difficulty in holding that Section 217 must be held to have retrospective effect. In my opinion, therefore, the conclusion arrived at by the learned Judge that the plaintiffs had not acquired any rights of occupancy is correct.
18. In this view the appeal fails and must be dismissed with costs.
N.J. Wadia, J.
19. The principal point for consideration in this appeal is as to the nature and extent of the mam granted to the defendant's ancestor. The plaintiffs admit that the village of Nagaral in which the suit lands are situate is an inam village of the defendant. They contend, however, that only twenty-one chavarat lands which are mentioned in exhibit 81 are watan inam and that the rest of the village is not watan. With regard to the chavarat lands they admit that the grant to the defendant inamdar is a grant of the soil, but according to them the grant with regard to the rest of the village is a grant merely of the royal share of the revenue and not of the soil.
20. [After discussing evidence bearing on the question, the judgment proceeded :]
The conclusion arrived at by the learned Subordinate Judge that the suit lands were the service watan lands of the Desai and that the grant to him was a grant of the soil is therefore, in my opinion, borne out by the documentary evidence before us. Under Section 5 of the Watan Act such lands are inalienable without the sanction of Government beyond the lifetime of the watandar, and the defendant would be entitled to recover possession of the lands alienated by his father.
21. The next contention of the plaintiffs is that by reason of the introduction of the survey settlement into the village in 1898 they have acquired the rights of 'occupants.' The learned Subordinate Judge has dealt with the details of the grant of each land to each of the plaintiffs. For the purposes of this appeal it is not necessary to refer to these grants separately. They were all made by the defendant's father at dates between 1892 and 1910 to the plaintiffs or their predecessors-in-title. They purport to grant the lands hereditarily and in perpetuity on payment of assessment. The inamdar agreed that neither he nor his descendants would have any right to resume the lands or to increase the rents above the assessment. The learned Subordinate Judge has held that the position of the plaintiffs with regard to the lands was that of tenants and that the introduction of survey settlement into the village in 1898 would not have the effect of converting the plaintiffs into ' occupants ' as defined in the Land Revenue Code.
22. The contention of the plaintiffs that their case would be governed by Section 217 of the Bombay Land Revenue Code as it stood before the amendment of 1913 is no longer tenable in view of the decision of this Court in Krishmarao Anand-rao v. Secretary of State : AIR1935Bom265 . That decision to which I was a party held, following three earlier decisions of this Court in Suryajirao v. Sidhanath : AIR1925Bom435 , Kondi v. Vithalrao (1925) 28 Bom. L.R. 424 and Nilaji v. Nagindas (1932) 35 Bom. L.R. 150 that Section 217 of the Land Revenue Code as amended in 1913 had retrospective effect. It was argued that the position of the plaintiffs with regard to the lands was not that of mere tenants and that the grant to them by the defendant's father was one of permanent tenancy rights. Such a grant would clearly be an alienation prohibited by Section 5 of the Watan Act and would not be good beyond the lifetime of the watandar making the grant. It was argued that even if the amended section were made applicable, the plaintiffs would become ' occupants ' on the introduction of the survey settlement. Section 217 of the Land Revenue Code cannot in my opinion override the clear provisions of Section 5 of the Watan Act. If 3. 217 were held applicable to watan lands to which a survey settlement had been applied, it would have the effect of recognizing alienations of watan lands which were forbidden by Section 5 of the Watan Act. The Watan Act (the Bombay Hereditary Offices Act III of 1874) was passed before the Bombay Land Revenue Code of 1879. Where there is a conflict between the provisions of the two Acts, the provisions of the special Act must prevail against those of the later Act which is a general one, on the well-recognized maxim generalia specialibus non derogant. In my opinion, therefore, Section 217 would not apply in the case of watan lands governed by Section 5 of the Watan Act. It is to be noted that Section 217 itself provides that the provisions relating to holders of lands in unalienated villages shall be applicable to holders of lands in alienated villages to which survey settlement has been applied ' so far as may be.' The provisions clearly could not be applied to lands governed by the Watan Act which under that Act are inalienable beyond the lifetime of the holder of the watan without the sanction of Government. The plaintiffs therefore cannot acquire ' occupancy ' rights under Section 217 of the Bombay Land Revenue Code.
23. With regard to the individual grants to each of the plaintiffs there is no reliable evidence to show that survey Nos. 4 and 5 were kadim inam lands as contended by the appellants.
24. I agree therefore that the appeal should be dismissed with coste.