1. In this suit the plaintiff sought to recover Rs. 141-13-0 alleged to have been wrongfully recovered from him by the defendant as assessment on lands Survey Numbers 288 and 885 in the village of Bagni. He also prayed for an injunction restraining the defendant from recovering assessment in future. The plaintiff alleged that the defendant's ancestors had conferred upon his ancestors the 'Inam and Mirasi' rights in those lands and that by virtue of that grant the defendant was precluded from recovering from him any assessment.
2. The matter arose in the year 1908 owing to the extension of the survey settlement to the village of Bagni. It is not disputed that up to that date no assessment had been paid on the lands in suit. The defendant is the Saranjamdar of the Bagni village and as such is the alienee of the revenue of the entire village. He contended, in the first instance, that the alleged grant is not made out, and, secondly, that he was not bound by any grant made by his predecessors owing to the nature of his tenure. The other points raised are not material for the purposes of the present appeal.
3. In the trial Court the Subordinate Judge held that there had been a grant of the nature alleged; he relied upon Exhibit 23 which, was an extract of the village accounts of the year 1829 showing that an ancestor of the plaintiff held 11 bighas of land rent-free. He further relied upon the fact that admittedly no assessment had been charged upon the lands from time immemorial. It does not appear that the identity of the lands in suit, described in Exhibit 23, was disputed in the trial Court. The Subordinate Judge says that admittedly these were the lands in suit, and the plaintiff's evidence to that effect was not challenged in cross-examination.
4. In the lower appellate Court the Judge, whose reasons are not wholly easy to follow, held that no grant had been made out. He was of opinion that the identity of the lands set out in. Exhibit 23, with the lands in suit, was not established. His main ground, as I understand, his judgment, was that the assessment of those lands in that document was set out as being Rs. 66; whereas the Local Fund cess levied in 1871 shows that the lands in the possession of the plaintiff's ancestor would have been assessed at Rs. 46 only. Now that is an unsatisfactory, basis for any conclusion, so unsatisfactory that we do not feel able to accept it in Second Appeal. We do not know on what basis the Local Fund, cess in 1871 was calculated, and even if it be true that on the basis adopted by the lower appellate Court the lands belonging to the plaintiff's ancestor would bear an assessment of Rs. 46 only, it does not follow that those lands are not at least included among the lands specified in Exhibit 23. The most that could be argued would be, that in 1871 for some reason which is not apparent, a smaller area was in possession of the plaintiff's family than in 1829. It is nowhere suggested that the plaintiff's family held any other rent-free lands, and the lands which they did hold have admittedly been held rent-free from time immemorial. And even apart from Exhibit 28 the fact that the lands have been so held would indicate a grant in past times. But as regards Exhibit 23 the reasoning of the trial Court appears to be correct and there is no ground which we can accept as satisfactory for holding that those lands are other than the lands now in suit.
5. The lower appellate Court has also apparently considered that a grant such as is here alleged could not be established without the prod action of some document. I do not understand the exact reason for this view and it is clearly unsustainable in law. On both grounds, therefore, we find ourselves unable to accept what is apparently a finding of fact by the lower appellate Court, and we consider that the trial Court has rightly held that the plaintiff's possession of these lands must be referred to a grant of very ancient times.
6. Now if we approach the case on the basis of a grant, the first matter which arises for consideration is the nature of the tenure of this Saranjam. The history and origin of this Bagni Saranjam have been the subject of a decision of this Court in Ramchandra v. Venkatrao (1882) 6 Bom. 598. At page 611 the grant by the British Government is set out in these terms: 'The Hon'ble the Governor-in-Council is of opinion that it has been satisfactorily shown that the village of Bagni was held as a personal Saranjam by the family of Venkatrav Bhaskar for a century before the introduction of British Rule. It should now be pronounced a Saranjam of the first class, and be continued hereditarily to the representative of the first British grantee, Venkatrav Bhaskar.' This pronouncement of the Government was interpreted as indicating the intention of Government that the Saranjam should always descend to the eldest member of the family for the time being. It was incidentally decided in that case that the grant was one of the royal share of the revenue, but for the purposes of the present appeal that finding is not material. Starting with the fact that the grant is one which descends by inheritance to the eldest member of the family for the time being, we have to consider whether there is not an absolute interest in the sense in which the term is used by the Privy Council in Dosibai v. Ishvardas Jagjivandas (1891) 15 Bom. 222 and, if so, whether the grant made by the holder for the time being is binding upon his successors. In that case, their Lordships of the Privy Council say:
When a Jahagir is granted in indefinite terms, it is taken to be for the life only of the Jahagirdar. But where there is a grant to a man. and his heirs, and nothing to control the ordinary meaning of the words, the grantee takes an absolute interest.
7. In such cases, as that judgment shows, an alienation by the Jahagirdar is effectual as against his heirs because of the nature of the estate, that is to say, because the grantee took an absolute interest in the subject-matter of the grant. The principle is equally applicable whether the grant is of the soil, or of the royal share of the revenue.
8. That was the law on the date of that decision and it would follow from that decision that a grant by the holder would necessarily bind the successor. At the date of that decision there were no rules framed by Government regulating the nature of Saranjam tenure. The power of Government to make such rules is not in dispute and they have exercised that power in 1898. Those rules are now determinative of the rights of Saranjamdars on all those matters with which they fdeal; and though the rules are not wholly free from difficulty, the object is sufficiently clear having regard to decisions of this Court. I say there is some difficulty, because a 'Saranjam is first said to be hereditarily continuable to the eldest male representative and subsequently it is stated to be a life interest only subject to grant and resumption on the death of the holder for the time being. But this resumption which is dealt with by Rule 5 is a formal resumption only and the intention is not to interfere with the succession except in those cases which are specifically provided for by other rules, with which we are not now concerned, the object being to enable Government to hand on the estate unencumbered by any debts or charges. The nature of the succession to Saranjam estates has been discussed by this Court in two recent cases: (1) Trimbak Ramchandra v. Shekh Gulam Zilani (1909) 34 Bom. 329 and (2) Madhavrao Hariharrao v. Anusuyabai (1916) 40 Bom. 606. At page 341 of the Report of the former case, Scott C.J. says: 'The estate then is a guaranteed hereditary estate. The right to succession is in the family, but it is subject to regulation by Government.' And in the latter case, the same view is taken. At page. 611, Scott C.J. says: 'It appears from the Saranjam Rules, to which reference has been made, that the succession to the Saranjam is in the plaintiff's family, and the plaintiff would be entitled to succeed as the eldest lineal male representative in the order of primogeniture upon the death of his brother Laxmanrao.... The estate is an estate which is bound according to the rules to continue in that family, and although on the death of a holder it is provided under Rule 5 that there shall be a formal resumption and re-grant free from debts and charges to the next holder, there is no provision (as pointed out by the learned District Judge) for freedom from all tenures, rights, incumbrances and equities created in favour of any person other than Government such as we find in Section 56 of the Land Revenue Code as amended by Bombay Act VI of 1901. Subject to its being free from debts and charges, the new holder takes the estate as it was on the death of the previous holder, and he takes by virtue of his inheritance from the previous holder subject to the provisions of formal resumption and regrant by Government.'
9. Now the exact question which is before us was not before this Court in those cases. The passages which I have cited are however in point in the present case as indicating the nature of succession to a Saranjam estate. If the succession be of that kind, then it would follow that a grant such as we are dealing with here, which is not either a debt or charge such as is described in. Rule 5, would be binding upon the successor by virtue of the fact that he succeeds by inheritance and that there is nothing in the special rules laid down by Government to prevent that/grant binding him. We are in fact at present concerned with the Rules framed by Government and those rules alone. They are, as I have said, determinative of the points before and unless there is anything in those rules which would cause this grant to cease to have effect upon the estate passing by succession, the grant must be binding upon the holder after the death of his predecessor. Reliance has been placed in the arguments before us upon Rule 5, and the meaning of that Rule, I have already dealt with. If it means that which this Court has interpreted it to mean, then it does not in any way affect the legality of the grant in. this case and the grant remains binding upon each Saranjamdar so long as Government do not by rule determine that it shall not be so binding.
10. We have not here the exact nature of the re-grant in this case, but in the absence of any document showing the terms of the re-grant, we must take it that it was made in accordance with Rule 5. And that remark brings me to the case as it was put in the valuable argument which Diwan Bahadur G.S. Rao laid before us at the hearing. He argued that a formal resumption under Rule 5 put an end to the Saranjam estate which reverted to Government, and that by virtue of the resumption any Sub-Inams, so to speak, created by any holder would come to an end, and be merged.in the general resumption by Government of the Saranjam estate. Now that is a tenable view, though it is not the view as I have shown which has been taken in the decisions cited above. If it be so, then the question would be what it is that is re-granted by Government in each case, and in considering the nature of the re-grant, we come back again to the interpretation of Rule 5. Government re-grant that which they resume. They resume the estate as it stood at the death of the holder and they re-grant that estate as it stood at that moment. And if Ride 5 does not free the estate from Sub-Inams such, as this, and that is the interpretation which has been laid down and which we follow, the result is that the re-grant is subject to that Sub-Inam which continues, to exist as against the successor in precisely the same way as it existed against his predecessor. Therefore in either view of the case, the result would be the same and the successor would be bound by the grant made by his predecessor.
11. Therefore that grant is in this case a complete answer to any claim to levy assessment on the lands and by virtue of that grant the plaintiff would be entitled to the decree which the trial Court gave him.
12. It is, however, as well to deal fully with the case as it was placed before us, and therefore I propose to say a few words as to the point of limitation. If it be conceded that on the death of the holder the grant ceases to take effect, then we have to consider what is the result upon the rights of the parties of the continuous holding of the land free from any payment of assessment. It was conceded that 12 years' adverse possession against one holder of Saranjam would operate to bar a claim' on the part of a successor. That indeed was specifically decided in Madhavrao Hariharrao v. Anusuyabai (1916) 40 Bom. 606. But it seems to me well to deal somewhat more closely with the legal aspect of the point as it now presents itself before us. It will be observed that in the case last cited, the Article of the Limitation Act held to be applicable was Article 130. That appears from a consideration of the Report as a whole, but it is not so specifically set out in the judgment. It appears that a suit by the defendant to levy assessment upon these lands, which have been rent-free lands, falls. under Article 130, and must necessarily have been filed within 12 years from the date when the right to assess first accrued. Now, ex hypothesi, the right would have accrued upon the death of the Grantor, and therefore any suit by the Saranjamdar for the time being to levy -assessment upon these lands would have been time-barred many years ago. That being so, it is necessary to consider the effect upon the right to levy assessment of Section 28 of the Indian Limitation Act. That section says: 'At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished '. If a suit of the nature described, that is to say, a suit to levy assessment on rent-free lands is a suit for possession of property within the meaning of that section, the effect of the failure to institute such a suit within the time allowed would be the extinguishments of the right to levy the assessment. That a suit of the supposed nature would fall within the terms of Section 28 appears to me to following from the decision of the Calcutta High Court in Abhoy Churn Pal v. Kally Pershad Chatterjee (1880) 5 Cal. 949. At page 952 of that Report appears the following passage: 'A suit for rent is, I think, a suit for the possession of property within the meaning of that section, and no such; suit could be brought against the appellants until had been determined in a previous suit brought against them by the respondent that their shares were liable to assessment. If the previous suit is barred, the suit for rent must be so also.'
13. Upon this view, Section 28 of the Indian Limitation Act of 1877, which is identical in terms with Section 28, of the present Act, was held applicable and it is held that the right to re-grant was extinguished and could not be pleaded in defence for an action to hold the land rent free. I cannot distinguish that case from the case now before us and the conclusion must, I think, be the same. The same result follows from the decision of this Court in Keval Kuber v. The Talukdari Settlement Officer (1877) 1 Bom. 586. At page 590, Melvill Jisays: 'The plaintiffs and those through whom they I, claim...have had undisturbed possession for some forty years; and, at all events since Jiva's death, that possession must be regarded as adverse to the Talukdar. His right to resume or to assess the land is, consequently, barred by Act IX of 1871, Section 29, and Article 130, Schedule II.'
14. That is to say, that the right must beheld to have been extinguished by virtue of the statutory provision cited. If that is so, it follows again that the defendant cannot plead the right to assess the land which is extinguished as the defence to the plaintiff's suit to hold it free of assessment. In any view of the case, therefore, it would appear that the decision of the trial Court was correct and that of t he lower appellate Court erroneous. I would, there fore, set aside the decree of the lower appellate Court and restore the decree of the trial Court and direct that the plaintiff do recover his costs throughout.
15. I entirely agree. I desire to add a word with reference to the argument that was advanced on behalf of the respondent as to the question of limitation. It was urged that the right to assess the land in the present case accrued to the defendant afresh when the Survey Settlement was introduced into the village in 1908, in virtue of the terms of Section 217 of the Bombay Land Revenue Code. I am clearly of opinion, however, that Section 217 of the Bombay Land Revenue Code, which puts the holders of lands in an alienated village on the same footing as the occupants in an un alienated village so far as their rights and obligations are concerned, does not create any fresh right to levy assessment as contended on behalf of the respondent. The right to levy the assessment, whatever the assessment for the time might be, was there all along from the date of the first grant in favour of the plain tiff's ancestor; and under the circumstances the only result of the introduction of the Survey Settlement was to regulate the amount of assessment that was leviable as from that date. The section does not deprive any holder of land of the right to claim exemption on any special grounds such as we have in this case : and it does not affect the point of limitation in any way which has been dealt with by my learned brother.