Norman Maeleod, Kt., C.J.
1. The plaintiff as an Inamdar brought a suit No. S6 of 1918 in the Court of the Second Class Subordinate Judge at Wai for possession against the defendant on the ground that he was a yearly tenant and was liable to be evicted on being given a proper notice. The final decision of the High Court in that case was to the effect that defendant was a permanent tenant under Section 83 of the Bombay Land Revenue Code, and the point as to enhancement of rent was then left untouched as it was not originally claimed in the plaint.
2. The plaintiff has now brought this suit for enhancement of the rent at the rate of Rs. 125 a year together with Rs. 22 as unpaid rent for two years before suit. It was urged that the notice by the plaintiff to the defendant to enhance the rent was not according to law, but the Judge held that the notice was legal and proper. He also found that having regard to the usage and custom prevailing in the locality the plaintiff was entitled to ask for the enhancement of rent. And on a consideration of the evidence he directed the defendant to pay enhanced rent at the rate of Rs. 25 a year as well as the rent due for the previous two years before suit. It appears to have been urged before the Judge that the defendant was entitled to the rights of an occupant in an alienated village by virtue of Section 217 of the Bombay Land Revenue Code. It is not easy to follow the argument which is constantly being put forward in the Courts.
3. The same point was urged in appeal before the District Judge who, after referring to the amendment in 1913 of Section 217 of the Land Revenue Code, said :-
Since the amendment one cannot) rely of these decisions I.L.R. 34 Bom. 686 because the words ' holders of land' have been substituted for occupants '. The result) of the amendment is that holders in general have bha same rights in alienated villages after a settlement as they have in unalienated villages. A holder may be a mere tenant. If so, be has merely a tenant's rights, It is admitted that the present appellant is a tenant, the origin of whose tenancy owing to antiquity cannot be determined. he is not the Khatedar. Hehas rightly been held not to be an ' occupant'.
4. We think that this reasoning is correct. The defendant was a holder of land, for unders. 3 (11) to be a 'holder' of land means to be lawfully in possession of land, whether such possession is actual or not. Consequently, when the survey settlement was introduced into the suit village, the defend, ant had the same rights and was affected by the same responsibilities in respect of the lands in his occupation as holders of land in unalienated villages, If the village had been un-alienated, he would still have been a tenant and not an occupant. Under Section 3(16) of the Act an occupant means a holder in actual possession of unalienated land, other than a tenant. It cannot be suggested that the defendant was an occupant. He was a tenant with neither fixity of tenure nor fixity of rent, until the Court decided in the suit I have referred to that he was entitled to the presumption arising under Section 83 of the Bombay Land Revenue Code, The decree in that suit was his title, but the title so granted was subject to the right of the landlord if he had the same either by virtue of agreement, usage or otherwise, to enhance the rent payable or services renderable by the tenant. So that the defendant cannot rely upon the provisions of Section 217 as protecting him from any attempt the landlord may make to prove that he is entitled to enhance the rent.
5. We, therefore, dismiss the appeal with costs.
6. Cross-objections also dismissed with costs.
7. In this case the survey settlement was first introduced into this village with the consent of the Inamdar in the year 1901. And it is found by both the Courts that the and in suit has ever since then stood in the Khata not of the defendant but of the Inamdar, and also that during all these years the defendant has not been paying assessment, but rent slightly in excess of the assessment fixed at the survey.
8. The defendant relies on the provisions of Section 217 of the Bombay Land Revenue Code, and contends that by reason of the introduction of the survey settlement into this village, he has acquired, inrespect of the lands in his occupation, all the rights which belong to holders of land in unalienated villages. It may be conceded that the defendant is a holder of lands in an alienated village to which the survey settlement extends; for, ' to be a holder of land means to be lawfully in possession of land, whether such possession is actual or not' [section 3, Clause 11, Land Revenue Code]. In order to ascertain what rights belong to holders of land in unalienated villages, it is necessary to refer to Section 68, read with Section 3, Clause 16, of the Land Revenue Code, The material portion of Section 68 runs thus: ' 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 per petuity conditionally on the payment of the amounts due on account of the land revenue for the same, according to theprovisions of this Act, or of any rules made under this Act.' The defendant claims that by reason of the introduction of the survey settlement into this village he has become entitled to hold the lands which are inhis possession in perpetuity on the payment of the assessment fixed at the survey settlement. But these rights belong to an ' occupant.' Section 3, Clause 16, defines an 'occupant' as meaning ' 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 the occupant.' According to the findings of the lower Courts the defendant is in possession of the suit land as a tenant of the plaintiff, He is, therefore, not an occupant within the meaning of that word in Section 68. The learned pleader on behalf of the appellant has invited our attention to the decision of this Court in Nanabhai Bajibhai v. The Collector of Kaira I.L.R.(1910) 34 Bom. 686 : 12 Bom. L.R. 707 But, as pointed out by the learned District Judge, after the date of that decision Section 217 was amended, and the words 'holders of land ' were substituted for the original word ' occupants' by Bombay Act IV of 1913, That being so, it is clear that the introduction of the survey settlement into this village does not confer on the appellant the rights which belong to an occupant' in an unalienatedvillage.
9. For these reasons I agree in affirming the decree of the lower Court.