Norman Macleod, Kt., C.J.
1. These are three appeals in suit filed by the plaintiff Inamdar to recover possession of the plaint land from the defendant, or in the alternative for a decree for enhancing the rent. The important issues were (1) does plaintiff prove that he is the owner of both Inami and Mirasi rights over land in suit (2) is defendant an annual tenant; and (5) is plaintiff entitled to enhanced rent and at what rate. The trial Court found that the plaintiff was merely an Inamdar of the land in suit; that the defendant was not an annual tenant, but a Mirasdar not liable to eviction so long as he paid the dues; and that the plaintiff was entitled to enhanced rent at the rate of Rs. 12 annually in respect of plaint land. The question whether the plaintiffs were Inamdara of the soil or merely grantees of the royal share of the revenue does not seem to have been discussed, and it Beems to have been taken for granted that they were Inamdars of the Foil. Otherwise if they had been grantees only of the royal share of the revenue, then they would only be entitled to the assessment. The learned trial Judge was of opinion that the defendants and their predecessors had been paying dues to the plain tiff which were nearly equal to the assessment or akar of the land from ancient times. It Seems somewhat unfortunate to use the word 'dues' which is a colourless word, the use of which might lead to confusion, and it has done so in this case as appears from the argument of the respondents' pleader. Then the learned Judge having come to the conclusion that the defendants and their ancestors had acquired permanent occupancy rights as Mirasdars by reason of the antiquity of their tenure and by the continuity of possession for a number of years without any break under the tenure the origin of which was not traceable, applied the provisions of Section 83 of the Bombay Land Revenue Code and said : ' It is a well established principle of law that an Inamdar is entitled to enhance the dues or rent payable by a Mirasdar. It is also a well-established principle that an Inamdar is entitled to get a fair and equitable enhanced rent according to the custom of the country and quality of the land from the defendants. It is a well established custom in this part of the country that the rent leviable on Miras lands may be enhanced up to the limit of half the gross produce of the land. This custom is proved by the judgment, Exhibit 18, wherein other decisions of the Courts of this District on the point are referred to.'
2. In first appeal this decree was set aside on a preliminary objection that Section 216(b) of the Bombay Land Revenue Code operated as a bar to the plaintiff's claim for enhanced rent or assessment until the next revision survey, following the decision of this High Court in Second Appeal No. 618 of 1911. That decision was confirmed in appeal on the ground that the previous decision of the High Court covered the case. Afterwards a very similar case came for decision before Sir John Heaton and myself, and it was then decided that the plaintiff in that case, who was in very much the same position as the plaintiff in this case, that is to say, he was the Inamdar of particular fields in an unalienated village, was not the owner of a definite share of an unalienated village within the meaning of Section. 216(b) of the Bombay Land Revenue Code, so that when it was pointed out to me that this question had never really been considered in S.A. No. 618 of 1911, I granted the application for review of our decision in these three appeals. The decision in S.A. No. 618 of 1911 was really based on a matter of prejudice, as the learned Judges thought that if an Inamdar who was merely holding certain fields in an unalienated village was allowed to enhance the rent of the persons occupying those fields, jealousy would arise as between those tenants and the occupants of the unalienated portions who were paying assessment to Government. But it was never considered in that judgment whether the Inamdar of certain fields in an unalienated village was Inamdar of a definite share of the village within the meaning of Section 216(b).
3. Now it is common knowledge that in unalienated villages there may be many cases of grants of certain fields by Government to be held on certain terms either absolutely free from payment of revenue or merely on payment of a portion of the revenue, and I do not think that such lands were intended to be brought within the purview of Section 216 of the Bombay Land Revenue Code. Clearly this is an unalienated village to which the survey has been extended. It has not been found in this case whether the plaintiff was paying a portion of the assessment or none at all to Government. But with regard to the relationship of the plaintiff to the occupants of his lands, that must be proved by evidence, and so far the evidence shows that the defendants and their ancestors had been in occupation for so long that the origin of their tenure was lost in antiquity. They are, therefore, permanent tenants owing to the presumption which arises under Section 83 of the Bombay Land Revenue Code and the only question is whether the plaintiff is able to prose his right to enhance what has previously been paid by the defendant for the privilege of holding those lands. If the defendants can prove that they have been paying in past years a sum exactly equivalent to the assessment, then it would be open to the Court to hold that I the defendants were paying assessment only, and must, therefore, be in the same position as occupants of unalienated lands. If, on the other hand, the amount paid by the defendants was only approximately close to the amount which was paid for assessment by such occupants,. then it would be open to the Court to hold that the defendants had not indefeasible rights to continue to hold on paying what they had previously paid. Then would arise the question, plaintiffs having a right to enhance, to what extent the enhancement of the rent can be made? That would depend entirely on evidence with regard to the usage or otherwise of this particular District. Therefore in all these three cases the decrees of this Court will be set aside, and also the decrees of the lower appellate Court, and the cases will be sent back to be dealt with on their merits by the lower appellate Court, Costs costs in the appeal.
4. I certainly think the application for review should be granted. I do not suppose that there is a single unalienated village in this Presidency which does not contain some alienated lands, and it would be absurd to suppose that the Legislature intended the provisions of Section 216(b) of the Bombay Land Revenue Code to apply in such cases. The ordinary case to which that clause is applicable is one where there is an Inamdar who has been granted a definite shere (say or ) of a particular village, and who is accordingly entitled to a corresponding proportion of the revenue of the village, Government having the remainder. I agree, therefore, that the case must be remanded to the lower appellate Court. I would only add my personal opinion that, in considering what is the limit of enhancement permissible to the landlord under Section 83 of the Bombay Land Revenue Code, the Court is entitled to take into consideration not only the general usage of the District, but also what has been the particular usage in regard t(c) the lands in suit. If, for instance, it is proved that the permanent tenant has only paid a very little more than the assessment of the land for a very long number of years, then, although there may be a general custom allowing an Inamdar to enhance up to the limit of half the gross produce of the land, I should be inclined to say that that usage did not apply to the particular lands in suit. These, however, are questions which the lower Court will have to consider, and on which it is not necessary to come to any definite conclusion at present.