1. The position in this second appeal seems to me to be extremely simple. The facts are as follows. In the year 1918 Government decided that a new survey should be introduced in the city of Surat. (Resolution No. 7607, dated July 22, 1918). Accordingly proceedings under the Land Revenue Code for that purpose were taken. It appears that the survey was completed and sanads were prepared to be granted to the holders of the properties in the city in lieu of their old sanads. The plaintiff who is the holder of many properties in the city alleged that the survey was not properly introduced, so far as at least he was concerned and that the sanads were not the proper sanads to which he was entitled under the Land Revenue Code. Accordingly, he appealed to the Collector from the orders of the City Survey Officer, and proceedings in this connection ultimately went to Government. In the meanwhile, however, he received a notice from the City Survey Officer calling upon him to pay the survey fees and take away his sanads. His case being that the sanads were not in proper form inasmuch as they altered the tenure which he was entitled to, he refused to pay any fees and take away the sanads offered to him by the City Survey Officer. It appears, however, that in consequence of the notice to which I have referred the plaintiff paid Rs. 82-3-0 under protest. This sum included a sum of Rs. 21 as penalty for the default committed by the plaintiff in not paying the survey-fees and take away his sanads, under Section 133 of the Land Revenue Code. It appears from the record that some petitions were also submitted to Government by influential persons complaining about the procedure adopted by the survey officer and in particular about the new form in which the new sanads were issued. Whilst these proceedings were pending, the plaintiff, to be on the safe side, gave a notice as required by the Civil Procedure Code, Section 80, to the Secretary of State for India in Council and followed it up by filing a suit on December 3, 1926, out of which this appeal arises. While the suit was pending, as the result of the steps taken by way of representations made by the plaintiff and other influential persons, Government issued a notification on January 6, 1927, by which they admitted that it was never intended by them to affect in any manner the title of the holders of properties in the city or to alter their tenures. Thereafter some correspondence went on between the Collector and the pleader for the plaintiff in which the latter was asked by the former as to whether in view of this notification his client was prepared to withdraw the suit. The plaintiff refused to withdraw the suit. Then on March 27, 1928, Government issued another notification by their resolution No. 7792124 by which they stated that it was not necessary to issue fresh sanads but that it would be sufficient if correction slips amending the new sanads were attached to them so as to preserve the original rights of property holders, and they directed that this be done and the sanads should be amended by means of correction slips.
2. The suit came on for hearing before the Joint First Class Subordinate Judge at Surat. The learned Judge accepted the contention of the plaintiff and by his decree directed that the defendant should enter, at plaintiff's instance, measurements in all the sanads of the plaintiff free of charge, that the sanads in Court should be handed over to the plaintiff, that the defendant do refund to the plaintiff Rs. 19 for penalty and Rs. 2 for notice charges and that the defendant do pay the plaintiff's costs and bear his own. The defendant appealed to the District Court of Surat and the learned H Judge of that Court varied the decree made by the trial Court by declaring that the plaintiff was entitled to have his proprietary rights confirmed in the sanads in accordance with the orders laid down by Government in their resolution, Government Resolution, Revenue Department, No. 7792, dated January 6, 1927, and deleting from the decree made by the trial Court the order directing the defendant to enter the measurements in the sanads free of charge, the return of the sanads to the plaintiff and the refund of Rs. 21 for penalty and notice charges. He ordered the respondent to pay the appellant's costs. It is from this judgment that this second appeal has been brought.
3. Having regard to the facts to which I have referred, it is clear that the learned District Judge accepted the contention of the plaintiff that the sanad which was issued to him was not a proper sanad in accordance with the provisions of the Land Revenue Code. That being so, the only question; which survives is whether the plaintiff is entitled to a refund of the sum of Rs. 82-3-0 which he paid to Government under protest or any part of it. As pointed out above the trial Court considered that the plaintiff was not liable in any event to pay the penalty and notice charges amounting to Rs. 21. But for some reasons, which do not seem to be sound, he held that the plaintiff was not entitled to a refund of the survey-fees less penalty charges. The District Judge on the other hand thought that the plaintiff had properly paid the sum of Rs. 82-3-0 including the penalty and notice charges. In our opinion none of the views is correct. The position seems to me to be simple. Section 132 of the Land Revenue Code directs that when a survey is introduced in any city, every owner is liable to the payment of a survey-fee to be assessed by the Collector under such rules as may be prescribed in this behalf from time to time by Government, provided that the said fee shall in no case exceed ten rupees for each building site or any portion thereof held separately. Then the section provides that the survey-fee shall be payable within six months from the date of a public notice to be given in this behalf by the Collector after the completion of the survey of the site of the city or of such part thereof as the notice shall refer to. Section 133 provides that every holder of a building site as aforesaid shall be entitled, after payment of the said survey-fee, to receive from the Collector without extra charge one far more sanads, in the form of Schedule H, or to the like effect, specifying by plan and description the extent and conditions of his holding : Provided that if such holder do not apply for such sanad or sanads at the time of payment of the survey-fee or thereafter within six months from the date of the public notice issued by the Collector under the last preceding section, the Collector may require him to pay an additional fee not exceeding one rupee for each sanad.
4. It is clear therefore from this provision that the survey-fee is payable by the holder of a property in the city in which survey is introduced within six months from the date of the public notice given by the Collector, and if default is committed by such holder, that is to say, the survey-fees are not paid within six months from the date of the public notice, then the Collector is authorized to levy a penalty not exceeding one rupee for each sanad. The payment of the survey-fees and the grant of a sanad seem prima facie to be concurrent conditions. On the facts, therefore, the plaintiff was not liable to pay the survey-fee as the sanad which was offered to him was not in the form of Sen. annexed to the Code, nor was he liable to pay any penalty. The Assistant Government Pleader argues that the survey-fees are payble under Section 132. But the section requires public notice to be given and then only time will begin to run. There is no evidence here that any public notice as required by Section 132 was given. All that happened was that a notice to the plaintiff was given, but that is not what Section 132 contemplates, and unless a public notice is given as provided by Section 132, it is difficult to see how the Collector would be entitled to levy penalty under Section 133.
5. Then it is clear that on the payment by the holder of the survey-fees he is entitled to a proper sanad. Ex hypothesi in this case the sanad was not a proper sanad. That is not only held by both the Courts, but it is admitted by Government as the resolution to which I have referred clearly proves. That being so, in my opinion, the suit was justified and the plaintiff was entitled to obtain a refund of the whole sum of Rs. 82-3-0.
6. It is argued by the learned Assistant Government Pleader that the plaintiff never complained that the public notice required by Section 132 was not given. But that contention seems to me to be untenable in view of the cross-examination of the surveyor in the case. Apart from that it seems to me, on the facts of this case, that the burden to prove that the requirements of law were complied with was clearly on the Government. It was for them to prove that every condition precedent to the levy of the survey-fee and penalty was fully complied with.
7. Then it is argued that Government did ultimately direct the issue of proper sanads inasmuch as they directed that correction slips should be annexed to the sanads granted. Apart from the fact that this was after the suit was. instituted, I do not think that the addition of the correction slips which were not authenticated would cure the defect in the sanads. The sanads are valuable documents and evidence of title and it is at least conceivable that some years hence a question as to the authendcity slip may arise There is no reason why title of these people should be left in this state of obscurity.
8. The appellant has taken another point, and that is that Government should be directed to include measurements of the properties in the sanad as they were included in the original sanads, and the sanads which were offered to him after the introduction of the survey hardly complied with that requirement. His argument is that Schedule II clearly contemplates that the property should be fully described by its measurements, description and in other respects, and sanads given to him hardly comply with it. That contention has considerable force in it. It seems to me that it is the duty of Government, having regard to the form of Schedule H of the Land Revenue Code, to issue sanads describing not merely the plot or building in question, but also describing the property fully by its boundaries and its full dimensions, and it is difficult to see how Government can levy an extra charge of four annas without carrying out a duty which the law casts upon them. But it seems to me that the question whether we should in this case direct Government to comply with the Schedule H, does not arise. The sanads are now returned to Government and it is the duty of Government to issue proper sanads, and there is no doubt that they will, having regard to the observations which we have made, issue proper sanads under the Land Revenue Code and in conformity with Schedule H. We are, therefore, unable to hold that this question arises in this suit and that any specific directions should be given to Government in that behalf.
9. In the result, therefore, the appeal is allowed and the decree of the lower' appellate Court set aside. There will be a declaration that the plaintiff is entitled to proper sanads declaring the proprietary rights of the plaintiff in accordance with the provisions of the Land Revenue Code and in terms of Sch. H of the Code. There will also be a decree in the plaintiff's favour for Rs. 82-3-0 with costs throughout. Interest on judgment at six per cent.
N.J. Wadia, J.
10. I agree.