1. This second appeal arises from a suit filed by the appellant for recovery of possession of among others survey No. 43/11 of Kadapur, Mangaon taluka, Kolaba district. The plaintiff's case was that this land was khoti khasgi land and upon the introduction of the Bombay Khoti Abolition Act, 1949, he became its occupant and he also became entitled to forfeit the tenancy in favour of the defendant as the defendant denied his title and claimed that he was himself the occupant. The defence of the defendant was that the lands in suit were khoti nisbat lands and upon the introduction of the Bombay Khoti Abolition Act, 1949, he became entitled to the occupancy of the lands and he could not be said to have denied the title of the appellant merely because he claimed such occupancy. The facts are not in dispute. It appears that this land was formerly in the possession of a tenant one Jija. She transferred this land to the defendant's father whereupon the plaintiff's uncle who was joint at the time of the transfer filed suit No. 34 of 1927 for possession of the land on the ground that Jija had transferred the land without his consent. He obtained a decree for possession and also obtained possession and subsequently let it to the transferee. It was the contention of the defendant that in these circumstances the land was khoti nisbat land as denned by Clause (ix) of Section 2(1) of the Bombay Khoti Abolition Act, 1949. One part of the definition, namely, Sub-Clause (b(i) of Clause (ix) applicable in the district of Kolaba defines khoti nisbat lands as:
(i) land in a khoti village which may have come into the possession of the Khotby lapse for failure of heirs of a tenant or by forfeiture on the tenant's failure to pay rent or by the resignation of the tenant.
The defendant contended that when Jija transferred the land to his father she resigned the land within the meaning of that term as used in Section 2(1), Clause (ix), Sub-Clause (b)(i), of the Bombay Khoti Abolition Act, 1949. On the other hand it was the contention of the plaintiff that that could not be the meaning of that word.
2. The learned appellate Judge has held, following the authority of this Court in Purshottam v. Ganpati (1925) 28 Bom. L.R. 750 that the word 'resigned' in Section 2(1), Clause (ix), Sub-Clause (b), Sub-Clause (i), meant transferred by a tenant without the consent of the landlord. He therefore held that these lands were khoti nisbat lands, and inasmuch as it is common ground that in the case of such lands under the provisions of the Bombay Khoti Abolition Act, 1949, the tenant became the occupant, the plaintiff was not entitled to a declaration of his title as an occupant. Nor was he entitled to its possession upon the footing that the defendant had denied his title.
3. The plaintiff has come in appeal and the question in appeal is with regard to the meaning of the word 'resignation' in this provision. Now, there has been a difference in the law applicable to khoti lands in the Ratnagiri district and that applicable to khoti lands in the Kolaba district. That was why in the Bombay Khoti Abolition Act, 1949, the words have separately been denned to mean different things in the two districts. But the law which was applicable to the Kolaba district formerly, that is, before the introduction of the Bombay Khoti Abolition Act, 1949, was Section 38 of Act I of 1865. Now, this Court had to consider that section as it stood in the year 1925 in the case of Purshottam v. Ganpati. It ran as follows:-
It shall also be competent to such officer, with the sanction of the Governor in Council, to fix the demands of the Khot on the tenant at the time of the general survey of a District and the terms thus fixed shall hold good for the period for which the settlement may be sanctioned.
But this limitation of demand on the tenant shall not confer on him any right of transfer by sale, mortgage or otherwise, where such did not exist before, and shall not affect the right of the Khot to the reversion of all lands resigned by his tenant, during the currency of the general lease.
This Court took the view that when a tenant transferred land to another, it must be taken that he had resigned the land within the meaning of that term as used in that section. Prior to the Bombay Khoti Abolition Act, 1949, so far as the Kolaba district is concerned the law was that if a tenant transferred land to someone else without the consent of the Khot, then the Khot was entitled to reversion of the land and could consequently obtain possession on the ground that when the tenant so transferred the land he had resigned it. Now, the Legislature must have been aware of the interpretation put upon the words 'to resign' by this Court in Purshottam v. Ganpati. It must, therefore, be taken that when it used the same words subsequently in denning the khoti nisbat lands in the Kolaba district as lands among other of which the landlord had come into possession by resignation of the tenant, it must be taken that it used the words to include among others lands transferred by the tenant without the consent of the Khot. It is obvious that if the word ' resign' were intended to be used in the sense of surrendering of a tenancy by a tenant, then knowing full well how the words have been interpreted the Legislature would have used words other than resignation of the tenant. It was obviously not difficult to use other words, for example, 'surrender'.
4. It is true that the words have been used in another Act relating to khoti lands this time in Ratnagiri district. They are to be found in Section 10 of the Khoti Settlement Act, Bombay Act I of 1880. Section 10 of the Act as it stood in 1907 came for interpretation before this Court in Ramchandra v. Dattatraya : (1907)9BOMLR320 . That section then stood as follows:-
If a privileged occupant resigns the land or any portion of the land in his holding, or if any such occupant's land lapse for failure of heirs, or other persons entitled thereto, or is forfeited on the occupant's failing to pay the rent due in respect thereof, the land so resigned, lapsed, or forfeited, shall be at the disposal of the khot as khoti land free of all encumbrances other than liens or charges created or existing in favour of Government.
But it shall not be competent to a privileged occupant at any time to resign a portion only of his entire holding except with the consent of the khot; and no privileged occupant shall be deemed to have forfeited his land on failure to pay rent unless such forfeiture is certified by the Collector.
It was held that the ordinary use of language does not permit the words 'to resign the land' being interpreted to mean to transfer the land to another on a sale deed and that it was impossible to interpret those words to mean it in view of the provisions of Sections 9 and 10 of the Act. The word 'resign' therefore was held consequently not to include transfer by a tenant without the consent of the landlord. It has got to be remembered, however, that even though the Legislature must be taken to have known that the words ' resign the land' in Section 10 of the Khoti Settlement Act, Bombay Act I of 1880, were held not to include lands transferred by a tenant without the consent of the landlord, that was in connection with khoti lands in the Ratnagiri district. One could have understood the argument that if in defining khoti nisbat lands in the case of Ratnagiri district the words 'resigning of the tenant' had been used; there would have been force in the argument that the interpretation which was put upon these words in Bamchandra v. Dattatraya was intended by the Legislature. But in this case the words have been used in denning khoti nisbat land in the Kolaba district to which a different enactment applied in which the words have been given a different meaning. In the second instance that it .was not the intention of the Legislature in using the word 'resignation' in defining khoti nisbat land in the Kolaba district to adopt the meaning given 'to the word 'to resign' inRamchandra v. Dattatraya, is quite clear from the fact that when khoti nisbat land has been defined in the case of Ratnagiri district the Legislature has been careful not to use the words 'resign the land'. The definition of khoti nisbat land in the Bombay Khoti Abolition Act, 1949, in the case of Ratnagiri district is :
land which in a khoti village before the coming into force of this Act has reverted to the khot under Section 10 of the Khoti Act...
The Legislature here could very well have reproduced the words of Section 10 of the Act in defining khoti nisbat land. It could have said for example that khoti nisbat land meant land which in a khoti village before the coming into force of this Act was resigned by the privileged occupant or has lapsed for failure of heirs or other persons entitled thereto, or was forfeited on the occupants failing to pay the rent due in respect thereof. But this would have created a confusion because the words were interpreted in two different senses in the Acts applicable to khoti villages in the two districts. The Legislature has, therefore, been careful and has used the words
land which in a khoti village before the coming into force of this Act has reverted to the khot under Section 10 of the Khoti Act.
That shows quite clearly that the Legislature did not want to use the words 'resignation of the tenancy' in the sense in which this Court has held that the 'word 'to resign' was used in Section 10 of the Khoti Settlement Act No. I of 1880.
5. The learned appellate Judge was, therefore, quite right in coming to the conclusion that when Jija transferred the land to the defendant's father she was resigning the land, and as upon such transfer the plaintiff's uncle sued Jija as well as the defendant's father and obtained possession of the land, the land was khoti nisbat land as defined for the district of Kolaba by the Bombay Khoti Abolition Act, 1949. In that case upon the introduction of that Act the defendant became occupant of the land and the plaintiff could not obtain a declaration that he was occupant, nor could the plaintiff get possession of the property merely because the defendant claimed that he was the occupant of the land.
6. It is said, however, that the land falls equally well in the definition of khoti khasgi land in the Bombay Khoti Abolition Act, 1949. In support of this contention reliance is placed upon Section 2(1), Clause (vii), Sub-Clause (b)(ii) :
land acquired since the original survey by the khot by purchase or other lawful transfer otherwise than in his capacity as a khot.
There is no evidence however to show that the Khot has acquired this land by purchase, nor is there any evidence of lawful possession taken by him otherwise than in his capacity as a Khot. The land was definitely therefore not khoti khasgi land, and the appellant did not become entitled to its occupancy upon the introduction of the Bombay Khoti Abolition Act, 1949.
7. The appeal must be dismissed. As the respondent has not appeared, there will be no order as to costs.