Judgement

Appeal (No. 97 of 1927) from a decree of the High Court (August 24, 1925) affirming a decree of the Joint Judge of Thana (November 30, 1921).

The suit was brought by the appellants against the Government for declarations that on the true construction of a deed of February 9, 1848, executed by the Government in favour of their predecessor, they were the owners of the village Vile Parla, and were entitled in whole or in part to non-agricultural assessments levied thereon by the Government and for ancillary relief. It was not disputed upon the present appeal that the Government was entitled to impose non-agricultural assessment under ss. 48, 65 and 66 of the Bombay Land Revenue Code, 1879, and that the villages were " alienated villages" within the meaning of r. 5 of revenue rules made in 1907 under s. 214 of the above Code.

The terms of the deed of 1848 appear from the judgment of the Judicial Committee.

The trial judge construed the deed of 1848 as merely an assignment of Rs. 4000 out of the revenues of the villages " subject to the other terms. He accordingly dismissed the suit so far as it related to the assessments imposed upon lands in the occupation of permanent tenants. As to the remaining lands, condition 12 made the grantee liable to increased assessments, but r. 6 of the above mentioned rules provided that they were not to apply " to lands in the actual possession and enjoyment of the holder or holders of the alienated village " ; he made therefore a declaration (as to which no question arose upon the present appeal) that in respect of lands in the plaintiffs possession and enjoyment they were exempt, and ordered an inquiry as to what lands were within that category. The decree was affirmed by the High Court (Macleod C.J. and Madhavkar J.).

1928. Oct. 26, 29, 30. Upjohn K.C. and E. B. Raikes for the appellants.

Sir George Lowndes K.C. and Kenworthy Brown for the respondent.

Nov. 27. The judgment of their Lordships was delivered by

VISCOUNT DUNEDIN. Early in the last century an ancestor of the leading plaintiff for services rendered to the Government received a grant of Rs. 4000 per annum. In 1844 his successor prayed that the grant might be changed into a grant of villages in Salsette, an island near Bombay. This after some negotiations was done in 1848 and the grant which falls to be construed in this action was given.

This grant, after a preamble narrating the original grant of Rs. 4000 to the family and the request that it might be exchanged for a grant of villages, goes on as follows " The aforesaid villages of Juhu and Vile Parla in the island of Salsette are hereby assigned to you and your heirs in perpetuity from the year A.D. 1847-8. The particulars of the cultivation, etc., founded on the Jamabandi of 1842-3 and the conditions of the grant are as follows —"

Then follows a long and minute description of the villages, the boundaries and the various lands from which revenue was levied, calculated partly on the lands and partly on the produce of brab trees which are tapped for toddy. All the particulars referred to lands as held by various ryots or sutidars, as to whose position explanation will be shortly given. The list ends with a summation of the revenue at the sum of Rs. 4679-1-8. From this is deducted "the amount of your inam Rs. 4000." It is added that there are ninety-seven undrawn brab trees for which "the grantee is to pay Rs. 20-14-4," making the whole sum payable by him as the surplus over the Rs. 4000, Rs. 700. Subsequently, on condition of the surrender of certain other lands not included in this grant, the Rs. 700 was reduced to Rs. 200. The deed then goes on with various conditions which will be examined hereafter.

It is now expedient to explain the position of the ryots or sutidars. By legislation in 1808, the sutidars in Salsette were declared to be permanent proprietors of their lands so long as they paid the amount of their assessment, and this assessment was fixed at a sum equivalent