Sadasiva Aiyar, J.
1. Plaintiff is the appellant and the Secretary of State for India in Council is the defendant (respondent) in this second appeal.
2. The plaintiff applied for the darkhast grant of a certain land. This was so long ago as in 1892. The Tahsildar of Mangalore who had full authority to deal with the darkhast application and to make grant (See Board's Standing Order No. 15) referred the plaintiffs application and other similar applications to the Head Quarter Deputy Collector who, in his turn, applied for instruction to the then Acting Collector of South Canara, Mr. Vernon A. Brodie, well known as a fair-minded and sympathetic officer. Mr. Brodie, in September 1892, sent the proceedings, Exhibit L, to the Head Quarter Deputy Collector who communicated it to the Tahsildar. The proceedings under Exhibit L refer also to a petition of the plaintiff, addressed direct to the Acting Collector himself. The operative portion of the proceedings is as follows : Until it has been decided what alignment for the Railway will be selected, no patta can be granted : and the assessment proposed (that is proposed by the Tahsildar at Rs. 4 an acre), which seems fair, must be charged as Shivaijama. Should these lands not be required for Railway purposes, pattas will issue as soon as the alignment has been decided upon.' On the strength of this order of September 1892, the Tahsildar in March 1893 passed the order Exhibit C on the darkhast petition of the plaintiff and Ors. The material sentences in this order, Exhibit C, are as follows : The order of the Collector has been obtained in this matter. By that circular, it is ordered that until the Railway line is determined, no pattas shall be issued for the said lands and their beriz should be collected under shivaijama and that after it is determined that those lands are not required for the Railway, pattas may be granted.' 'For those lands, patta cannot be granted now. After it is determined that those lands are not required for the Rail-way, steps will be taken towards the issue of patta.' 'Rejecting the petition of all others, an order was issued to fix the beriz of the said land in the name of Ramaraya.' (That is the plaintiff). 'Beriz is fixed at Rs. 4 per acre. Order- is issued to collect the beriz under shivaijama from that Ramaraya according to the conditions mentioned above (sic)Fasli 1304.' Then on the 31st March
3. (sic) the Tahsildar of Mangalore passed an (sic) regards an excess area enjoyed by the plaintiff as appurtenant to the land for which shivaijama beriz had been entered in his name in 1893. This order of 1,896 is Exhibit D. It says : 'The Revenue Inspector recommends that for the excess lands also beriz may be fixed at the same rate' of Rs. 4 (as was fixed in 1893 for the principal extent) and also on condition that if that land is required for Railway, it shall be relinquished without remuneration. The beriz may be collected under shivaijama. The Collector too, as per proceedings No. 668 of '95, has ordered that accordingly the beriz will be fixed in the name of Ramaraya for that land.' Having carefully read these proceedings of 1893 and 1896 and especially the promise of Mr. Brodie 'that pattas will issue' as soon as the alignment of the Railway is decided upon, I am of opinion that the Tahsildar granted the plaint lands to the plaintiff to be held by him on temporary shivaijama tenure till the Railway alignment had been decided upon, that if some portion of the land was taken away, for Railway purposes, the plaintiff should not claim compensation for that portion and that as soon as the alignment is made and the portion required by the Railway is ascertained and deducted the plaintiff should be treated as grantee of the remaining extent to be held on the usual ryotwari tenure. The plaintiff evidently acted under the same impression ' and has effected vast improvements upon the plaint property, planted trees on a large scale' (see the District Munsif's judgment) and has erected buildings on the property. The Railway alignment was made about 1903. Then the plaintiff applied for the ordinary ryotwari patta as promised by the Tahsildar in 1893 and 1896., Another Tahsildar thought that the conditional grant made by the Tahsildar of 1893 was not binding on the Government and refused his application. Then there was an appeal to the Collector and then to the Board of Revenue by the plaintiff The Collector seems to have agreed with the Tahsildar and to have asked the plaintiff to obtain temporary lease of the land from the Government. The Revenue Board in their order of November 1910,. Exhibit F, said as follows : 'The Board sees no reason to lease the land. It should be assigned to appellant under the Darkhast Rules, subject to the payment of ground rent and subject to the condition that it should be surrendered without payment of compansation whenever required for a public purpose and that Government's decision that it is so required shall be final.' This order, as I said, was passed in November 1910. In this connection I might state the further fact that not only did the plaintiff act on the assumption that there was an irrevocable grant to him, though subject to certain conditions, but the Revenue Authorities also seem to have acted on the same assumption : for, when a portion of the land covered by the grants aforesaid was actually taken up by the Railway alignment, the Government granted compensation to the plaintiff in respect of the improvements effected by the plaintiff on that portion. The plaintiff, no doubt, did not claim any compensation in respect of the value of the site itself taken up by the alignment, but that was because the grants to him in 1893 and 1896 were expressly made subject to the condition that he should not claim compensation in respect of the sites taken by the alignment of Railway. Under these circumstances, I find myself unable to hold that the Government reserved to itself the power to refuse to recognise the plaintiff as ryotwari holder of the remaining lands not required for the purposes of the alignment of the Railway as soon as such alignment was made, or that they could initiate fresh darkhast proceedings as regards such remaining land after the alignment was made. 1 am, further, unable to hold that, in issuing patta to the plaintiff after such alignment for the remaining lands, they could impose the condition that he should not claim compensation whenever (that is, after any length of time) the Government requires the land, for any public purpose. If the Tahsildar of 1893 had not the least idea of getting the shivaijama assessment for any period between 1893 and the alignment of the Railway from anybody except the plaintiff or to make temporary grants to any person other than the plaintiff during that period, he also, it seems to me, had not the least idea that after the alignment the grant should (or could properly) be made to any person other than the plaintiff or that the patta which was intended to be issued to the plaintiff (after such alignment) for the remaining lauds was to be any other patta than the ordinary ryotwari patta. I think that there were completed, though conditional, grants in 1893 and 1898 by the Tahsildar of the plaint lands and of the lands taken up by the alignment, the lands in their entirety to be held by the plaintiff in the first instance on temporary shivaijama tenure till the alignment was made, and then the remaining lands, after excluding the portion taken up by the Railway, to be held from the date of the alignment on ordinary ryotwari tenure. The power to make a grant of a larger right involves and includes the power to make a conditional grant of a lesser right at first and the larger right on the happening of a certain event and when that event has happened, the conditional grant of the larger right vests the larger right in the grantee from the date of the happening of the event. The plaintiff in his plaint, howevert, prayed for a declaration not only that the plaintiff has become the owner of the plaint lands on ordinary ryotwari tenure, but he also prayed for a declaration that the Government is not entitled to levy from the plaintiff any assessment or rent in excess of the Rs. 4 rate mentioned in the Tahsildar's orders of 1893 and 1896 and for a further declaration that the Government is bound to issue a patta to the plaintiff mentioning the assessment as being only Rs. 4 per acre. He also prayed for a direction to the defendant to issue such a patta to the plaintiff. So far as the rate of assessment which can be imposed by the Government and the right to levy such assessment are concerned, the Government has uncontrolled power where the lands are ryotwari lands not held under a Revenue Settlement. The Civil Courts cannot interfere with their discretion to impose any assessments they like and though the Tahsildar fixed the assessment in 1893 and 1896 at Rs. 4 per acre, the Government are entitled to impose any assessment they choose even where no-proceedings have been taken for a fresh settlement of the entire lands in a whole District. (See Section 58 of Madras Act II of 1864). I was at first inclined to give a decree to the plaintiff merely declaring his right in the ' plaint lands as an ordinary ryotwari tenure-holder and a declaration (sic) he was not disentitled '.to claim compe (sic) under the Land Acquisition Act. (sic)
5. Government, in future, takes up any portion of the plaint lands under Land Acquisition Act. But as the plaintiff questioned the right of the Government to increase the assessment imposed upon his land, as he also prayed for a direction to the Revenue officers to issue patta to him (the Government being under no statutory obligation to issue any patta to a ryotwari land-holder for his holding), as the grant of a declaratory relief is a matter o discretion in the Courts, and as my learned brother takes a different view as regards the effect of the Tahsildar's proceedings in 1893 and 1898, I shall not interfere with the decree of the lower Appellate Court dismissing the plaintiff's suit as brought, though I have differed from the lower Court's conclusions on the question of the Government's rights to treat the Tahsildar's orders of 1893 and 1896 as conferring no title whatever upon the plaintiff. I agree with my learned brother in his direction that the parties should boar their respective costs throughout.
Seshagiri Iyer, J.
6. The plaintiff's case is that the property in dispute was his absolute property, that, when his right to it was disputed, ho applied under the darkhast rules for a grant of it to him, that the Revenue Authorities assigned the land by two orders in 1893 and 1898, stipulating that the plaintiff was to hold the land by paying an assessment of Rs. 4 per acre, subject to the condition that in case the land was required for Railway purposes he was to relinquish it without claiming any compensation, that the subsequent alignment of the Railway left this land untouched, that in pursuance of the order of 1893 he has been in possession making improvements upon the property, and that in the year 1910 he was called upon to surrender the land unless he was prepared to take it up on a lease of Rs. 50 per acre. Ho has, therefore, instituted this suit for a declaration that he is entitled to hold and enjoy the plaint plot in terms of the orders in Darkhast Case No. 13 of 1302 and Darkhast Case No. 209 of 1305 on the file of the Mangalore Tahsildar and that the defendant is not entitled to levy from plaintiff any assessment or rent in excess of the rate mentioned in those orders and is bound to issue patta thereof to the plaintiff.
7. The defendant denies that any patta was promised to the plaintiff or that there was any assignment of the land as contended for by the plaintiff, and states that the orders passed by the Revenue Officials have been misunderstood, and that the grant of the plaint plots to the plaintiff being only on 'shivaijama' his claim for the issue of a patta with respect to the same is untenable in law.
8. The District Munsif came to the conclusion that the plaintiff's claim for the patta was absolute under the orders of the Revenue Officials and that the condition about the land being required for Railway purposes not having taken effect, the Government was bound to issue a patta charging assessment at the rate of Rs. 4 per acre. On appeal the District Judge, reversing the decision of the District Munsif, decided that the rate of assessment is not a matter which the Civil Courts can inquire into. On the question of the nature of the grant, he said : 'in my opinion, what was granted in the grants of 1893 and 1893 was only temporary occupation at the rate of Rs. 4 per acre. It is clear that the soil did not vest in the plaintiff as he was distinctly made to understand that, in case the lands were required for the Railway, he would have to surrender them without claiming compensation the plaintiff, in my opinion, is not entitled to say that ho is liable to surrender the land only for the purpose referred to in Exhibits C and D. viz., for the Railway.'
9. It is contended by Mr. Sitarama Rao in appeal that the District Judge has misunderstood Exhibits C, D and L. The decision in this case depends upon the construction to be placed upon these documents and upon the view we take regarding the nature of the right secured by them. It is, no doubt, true that the non-issue of a patta will not take away the rights of the plaintiff, if otherwise there has been a grant to him. [Sea Secretary of State for India in Council v. Kasturi Reddi 26 Ma. 268 : 12 M.L.J. 453.]. It has also to be borne in mind in this case that, while in 1901 certain plots ware taken up for the extension of the Mangalore-Azhikkal Railway line, the plaintiff was paid the value of the improvements effected by him upon those plots. After giving my best consideration to these circumstances, I am unable to hold that, the plaintiff acquired any right to compel the defendant to grant him a patta. It is admitted that Exhibits 0 and D were the only orders communicated to the plaintiff. In Exhibit L, the, Collector stated : 'should these lands not be required for Railway purposes pattas will issue as soon as the alignment has been decided upon.' Even in this document the recommendation is that the assessment proposed should be charged as 'shivaijama.' This order of the Collector was never communicated to the plaintiff. It was only an instruction to the Deputy Collector.
10. Now turning to Exhibit C, I find in paragraph 5 a reference to a circular prohibiting the grant of lands which were situated at a distance of about half a mile from the Natravati river, and in paragraphs 7 and 8 it is distinctly stated that orders have been issued to collect the beriz under shivaijama from fasli 1301 (i.e., 1892).' The concluding statement is : After it is, determined that those lands are not required for the Railway, steps will be taken towards the issue of patta.' I cannot find in these words any grant or promise to make a grant. It is impossible to spell out of these sentences in Exhibit C any promise to make a grant on certain contingencies or any assignment which is to remain in force until the condition works out.
11. Exhibit D, the order of 1896, does not carry the matter any further. There also the conditions are that the beriz should be collected under 'shivaijama' and that the applicant should be told that he must relinquish without remuneration the land, if required for Railway purposes.
12. The real difficulty in this case arises from construing the word 'shivaijama.' In Wilson's Glossary the term is interpreted to mean 'extra collection.' In Order XV Rule 8 of the Standing Orders of the Board of Revenue, to which our attention was drawn by the learned Government Pleader, it is pointed that in all cases of unauthorized occupation rent will be charged shivaijama.' The term is somewhat loosely used, and so far as I have been able to gather, it includes cases where permission has been given to occupy land for a particular period for a particular purpose or where there has been unauthorized occupation which the Revenue Authorities do not consider objectionable. If unauthorized occupation becomes objection able, then penal assessment will he levied. Till then, the assessment will be taken, under the heading of shivaijama.' To my mind, the principle underlying these 'shivaijama' collections is that no property passes to the cultivator and the land continues to be at the absolute disposal of the Government.
13. I must advert to one other circumstance which appears from the evidence given by the plaintiff in this case. He said : 'I got a miscellaneous patta for the plaint property. I raised objections and stated that I should get warg patta similar to the one issued to Mr. Morgan, but my opinion was not heeded.' Unfortunately, this miscellaneous patta has not been produced in this case, but it is clear that a miscellaneous patta can be issued only in cases where there is a temporary occupation, or where the Revenue Officials find that, pending the final settlement with the cultivator, he should be given permission to cultivate the land. Therefore, I agree with the conclusion of the District Judge that the plaintiff has not established his right to demand a patta fixing assessment at the rate of Rs. 4 per acre.
14. I feel no doubt that in this case the plaintiff was led to believe that the land would be given to him at the rate of Rs. 4 per acre in case the Railway authorities did not want it. Probably the Revenue Officials also believed that he was entitled to this right. Otherwise he would not have been given compensation for improvements when certain plots were taken up for the extension of the Railway. It is to be regretted that the land was not granted to him as Mr. Brodie in Exhibit L intended it should be. But I have to see whether upon the construction of the two orders communicated to the plaintiff the land has been assigned to him on certain conditions. As I said before, I am unable to come to that conclusion.
15. Upon the view that I have taken, it is hardly necessary to say that I agree with the District Judge that Civil Courts have no jurisdiction to take cognizance of questions relating to the rate of assessment to be levied on a grant of land. The second appeal will be dismissed. In the circumstances mentioned by me there will be no order as to costs in any of the Courts. Appeal dismissed.