1. The plaintiff, who is the inamdar of three villages in the Gadag Taluka, sued for a declaration that the survey carried out by the defendants was illegal, and that it could not affect the plaintiff's right in any way, and for an injunction to the defendants not to recover the expenses for the said survey from the plaintiff.
2. On December 15, 1921, Government purporting to act under the powers conferred by Section 135A of the Bombay Land Revenue Code, 1879 (Bom. Act 5 of 1879) and in modification of Government Notification in the Revenue Department. No. 263, dated January 12, 1904, as subsequently amended, by which certain class of villages and lands were exempted from the operation of the Bombay Land Record of Rights Act, 1903 (Bom. Act 4 of 1903), was pleased to cancel the said order of exemption so far as it applied to the lands in the villages of the Dharwar district mentioned in the notification and to direct that the provisions of Chapter X-A of the said Code should apply to the said villages.
3. The three villages, of which the plaintiff is the inamdar, are mentioned in that notification. The Government had power to issue that notification, under Section 21 of the General Clauses Act (Bom. Act 1 of 1904) so far, at any rate, as the first part of it was concerned.
4. In pursuance of that notification, the Acting Superintendent, Land Records. Southern Division, under Section 135G. of the Bombay Land Revenue Code, issued a general notice, by which the inamdar was informed that the survey was to be made in the said villages in accordance with Chapter X-A of the Bombay Land Revenue Code for the preparation of the record of rights.
5. The survey was carried out in accordance with this notice, and at the end of it the Survey Officer assessed the cost of his operations and took steps to recover it as a revenue demand. The plaintiff thereupon brought this suit praying for the reliefs set out above.
6. The first defendant, the Secretary of State for India, first pleaded that the Court had no jurisdiction, relying upon Section 4(b) of the Revenue Jurisdiction Act (Bom. Act X of 1896), which enacts that no civil Court shall exercise jurisdiction as to any objections to the validity or effect of the notification to survey or settlement, or of any notification determining the period of settlement.
7. The District Judge held that he had no jurisdiction to try the suit, as he considered that the survey was carried out under Chapter VIII of the Bombay Land Revenue Code.
8. The plaintiff contended that the general notice, Exhibit 19, was not authorized by Section 96, because the operation of that section was excluded from his villages by Section 216. The learned Judge, considering that that was clearly an objection to the validity of the notification of survey, held that he had no jurisdiction. The rest of his judgment is somewhat inconsistent with that finding for he says:
I now understand that there is no objection to the validity pf the notification, Exhibit 18, by which Chapter X-A was made applicable to the plaintiff's village. It seems to me, therefore, that this survey is made not under Section 95 but under Section 135G. It is expressly stated that survey is made for the preparation of the record of rights. Chapter X-A, of which Section 135G is a part deals with the record of rights. Chapter VIII deals with surveys, assessments and settement of land revenue.
9. It has been conceded by the Government Pleader before us that the jurisdiction of the Court is not ousted by Section 4(5) of the Revenue Jurisdiction Act.
10. We must, therefore, consider whether the notification, that a survey was to be made in these villages, in accordance with Chapter X-A of the Bombay Land Revenue Code, was illegal so that the defendants were not entitled to recover the expenses of the survey from the inamdar. I do not think that Section 216 has any application to the present case. That section merely provides that the provisions of Chapters VIII to X are not to be applied to any alienated village except for the purposes of fixing the boundaries of any such village and for determining any disputes relating thereto.
11. We have now to deal with Chapter X-A, and under Section 135G the record of rights shall be maintained in every village, and such record shall show certain particulars. There is no exclusion of alienated villages from the application of the Chapter or any of the sections therein. It must follow that the Government were entitled to maintain the record of rights in alienated Villages without the consent of the inamdar, and 'that the provisions of Chapter VIII do (not apply in any way to the maintenance of the record of rights. The Government can, therefore, direct that (Section 135G(a))-
Any revenue officer or village accountant may for the purpose of preparing or revising any map or plan required for or in connexion with any record or register under this Chapter (X-A) exercise any of the powers of a survey officer under Rs. 96 and 97, except the power of assessing the costs of hired labour under Section 97 and (b) any revenue officer of a rank not lower, than that of an Assistant or Deputy Collector or of a survey officer may assess the cost of the preparation or revision of such map or plan and all contingent expenses, including the cost of clerical labour and supervision, on the lands to which such maps or plans relate, and such costs shall be recoverable as a revenue demand.
12. We think, therefore, that this survey instituted for the purpose of maintaining the record of rights was not a revenue survey for the purpose of assessing and collecting land revenue and that the provisions of Chapter VIII have no application. The plaintiff is not entitled to the declaration and injunction asked for, and the appeal must be dismissed with costs throughout.
13. I agree.