Leonard Stone, Kt. , C. J. -
(1.)THIS is an appeal from the judgment dated June 30, 1942, of Mr. M. B. Honavar, who was then Assistant Judge, Thana, whereby he allowed the appeal of the Province of Bombay, who was defendant No.2 in the suit and dismissed the cross-objections of respondent No.1 the plaintiff, who claims to be the mortgagee in possession of certain inam rights under a mortgage deed dated October 29, 1929. The only other party to the proceedings is the mortgagor, the inamdar, and he raises no opposition to the plaintiff's claim as mortgagee, which, so far as is material, is contained in paragraphs 1 and 5 to the prayer of the plaint: (1) It may be declared that the plaintiff is entitled to get his name as mortgagee in possession entered after the name of Sambhaji Shivaji Raje Shirke against the inam right in mouje Jamgaon and Kudli in the taluka of Roha and in mouje Vidhat in the taluka of Mangaon mentioned in Clause 3 above, in the relevant Government records. (5) Defendant No.2 may be ordered to pay to the plaintiff defendant No.1's amount that is credited with Government in respect of the inam right in the three villages mentioned in Clause 1 above and the amount that will be credited with Government every year hereafter till payment of the mortgage amount.
(2.)I must confess that I find the attitude of Government in this matter somewhat difficult to understand, for there is no doubt that the grant of this inam, which dates from before the British connection in India, is an absolute grant to receive one half of the revenue of these three villages and that the right is heritable, partible and alienable at will; nor is there any doubt that the mortgagor is the present holder of the inam rights, subject to the estate and interest therein of the appellant as his mortgagee.
There is no dispute between mortgagor and mortgagee. The only complication, if it be a complication, is the fact that the villages in question are khoti villages, that is to say that in ancient times the Rulers of those days granted heritable right to a khot to collect the revenue for which service, of course, the khot is not without his remuneration. In practice the khot having collected the revenue, accounts to Government for all he receives, and Government then pays the khot his commission and pays one half of the balance to the inamdar and retains the other half itself. In this case, Government refuses to recognise the mortgagee, though, as I have said, there is no dispute between him and his mortgagor, who raises no objection to the payment of his share of the revenue being made to the mortgagee.
The submissions made by the learned Advocate General on behalf of Government in justification of the attitude which Government have taken up are firstly, that by Sub-section 4 (d) (1) of the Revenue Jurisdiction Act no civil Court shall exercise jurisdiction as to any of the following matters: claims against the Crown to be entered in the revenue survey or settlement-records or village-papers as liable for the land-revenue, or as superior-holder, inferior-holder, occupant or tenant. " And secondly, that to order Government to pay the plaintiff as mortgagee, and not the inamdar whose name is entered in Government records as the superior holder, would be to order something to be done contrary to the entries in those records, or in the absence of an entry in the records that the plaintiff is mortgagee. This, it is suggested, the Court cannot do. Mr. Dharap concedes that Sub-section 4 (d) (1) of the Revenue Jurisdiction Act precludes the Court from making the declaration asked for by prayer No.1 of the plaint, but the question remains whether the appellant is entitled to the relief asked for by prayer No. On Government's behalf reliance is placed on the definition of "superior holder," in the Bombay Land Revenue Code, which is: "a landholder entitled to receive rent or land revenue from other land holders (hereinafter called 'inferior holders'), whether he is accountable or not for such rent or land revenue, or any part thereof, to the Provincial Government.
(3.)I am unable to see how that definition has any material bearing on what we have to consider. The Code does not provide that Government shall pay nobody except the "superior holder. " But the position taken up by Government is really grounded on the decision of Dattatraya v. Sadashiv (1939) 41 Bom. L. R. 882, in which it was held that the relationship between Government and the inamdar, who was the superior holder, under the Bombay Land Revenue Code, was not affected by the sale of the superior holder's rights, and that an injunction against Government to pay the plaintiff direct would be contrary to the spirit of the Land Revenue Code. In delivering the judgment of the Court consisting of Mr. Justice Macklin and himself, Mr. Justice Broomfield said (p. 891): We must hold, therefore, that this suit as against Government is barred. It follows from that that no order can be made that plaintiff's name should be entered in the village papers, and defendant No.2 must remain as the superior holder. From that again it seems to follow that Government cannot be ordered not to pay the revenue to defendant No.2 but to pay it to the plaintiff direct. The definition of superior holder in the Land Revenue Code, to which I have already referred, shows that he is entitled to the revenue. Section 85 of the Code provides that he is to receive his dues through the village officers. Under Section 86 the superior holder only is entitled to assistance from Government. So that an injunction against Government to pay the plaintiff direct, and not to pay the superior holder, would be contrary to the spirit, if not to the express terms of the Land Revenue Code. The relation between Government and the superior holder is not affected by the sale of the superior holder's rights.
The learned Judge in the appellate Court below was of course bound by this decision which is distinguishable from the case before him, and he accordingly allowed the appeal from the trial Court, and dismissed the cross-objections. But the matter has now come before this full bench, and it is for us to consider whether the case of Dattatraya v. Sadashiv is rightly decided.