Judgement

Appeal and cross-appeals, consolidated, from a judgment and decree of the High Court (April 16, 1909) affirming, as to the principal appeal, a judgment and decree of the District Judge of Ahmedabad (November 80, 1907).

The appeals related to the nature of the tenure of certain kasbatis of a village in pargana Viramgam in the Ahmedabad district.

The facts appear from the judgment of their Lordships. By an order dated January 27, 1898, the taluqdari Settlement Officer directed the respondent Rajbai, the daughter of one Bapabhai, and Nandbai, the widow of one Fatumyia, to deliver up possession of the village in question, of which Bapabhai and Fatumyia had been kasbatis. The order was made in consequence of the view of the Government of Bombay that the kasbatis were merely lessees from the Government and that the direct heirs of the holders had from time to time been granted pattas by favour of the Government, and not in recognition of any right.

The respondent Rajbai and Nandbai, since deceased, instituted the suit in 1898 praying for a declaration that they were “entitled to hold possession and vahivat of the village and to enjoy the same."

The District Judge held that the kasbatis were taluqdars, and were proprietors prior to the British rule ; that an arrangement made in 1823 recognized their permanent right to the villages left in their possession under that arrangement; that the pattas granted from time to time did not alter or affect the nature of their rights, but fixed the amount of revenue payable by them. He was of opinion that the title of the kasbatis was protected by Bombay Acts VI. of 1862 and VI. of 1888, and that, in any event, they were survey occupants, and in that capacity were not liable to ejectment.

The High Court (Chandavarkar and Heaton JJ.) delivered judgment on April 16, 1909. The learned judges were of opinion that the kasbatis were not lessees as the term is understood in English law, and that they had a right to hold permanently at a rent liable to revision and subject to express or implied conditions. One of the express conditions, they said, had consistently been that the kasbatis should not alienate their interest in the management of the villages; but there were other conditions both express and implied.

The learned judges remitted the case to the District Judge to ascertain what were the conditions above referred to.

The Government lodged a list of conditions which they desired to be inserted in the decree. The plaintiffs by their objections urged that no conditions could be annexed to their holding other than those imposed by Bombay Acts V. of 1879 and VI. of 1888.

The District Judge held that the only conditions, express or implied, under which the village was held were those imposed by statute. He declined to specify the conditions in the decree.

The High Court affirmed the decision of the District Judge that the conditions were determined by statute, but thought it expedient to specify expressly in the decree what were deemed to be the statutory conditions, and the decree was accordingly so made. The principal appeal to His Majesty in Council was by the Secretary of State in regard to the finding that the respondent was not a lessee ; there were consolidated cross-appeals as to the insertion of conditions in the decree and what those conditions should be.

Sir Erle Richards, K.C., and Lowndes, for the appellant. The evidence shows that the Government conferred no proprietary interest upon the kasbatis. The pattas were issued from time to time to direct heirs as a matter of favour and conferred only a leasehold interest Peiles Report on the Ahmedabad Zillah, 1867 (Selections from Records of the Bombay Government, No. 106). Even if the respondents ancestor had a proprietary right before the cession, which is not established, the Government were not bound to recognize that right Cook v. Sprigg ([ 1899] A. C. 572.); Balkishen Das v. Legge. (( 1899)

L. R. 27 Ind. Ap. 58.) Bombay Act VI. o