SECRETARY OF STATE Vs. WASUDEO SAKHARAM

JUDGEMENT

(1.) The only question raised on this appeal is, whether the respondents, as Khots of the village of Bele Budruk in the District of Ratnagiri, are entitled to occupy and cultivate lands left dry in the river-bed as far as the middle of the bed opposite their khoti village. The District Judge, who tried the suit brought by the respondents against the appellant (the Secretary of State for India in Council), has found upon that question in the affirmative.

(2.) But his finding is assailed before us upon the ground that the river in question, being admittedly neither tidal nor navigable, is, under Section 37 of the Land Revenue Code, the property of Government and that the respondents cannot claim any right to the lands left dry in its bed as far as the middle of the bed, because they are not owners of any land adjoining the bank of the river, but are, as Khots, mere farmers of the land revenue of the village.

(3.) The District Judge has not found, nor has it been argued before us by the respondents pleaders, that they are Khots having a proprietary interest in the soil of the village. They must, therefore, be regarded as Khots of the description mentioned by Sargent C.J. in his judgment in the Collector of Ratnagiri V/s. Antaji Lakshman (1888) I.L.R. 12 Bom. 534. They are mere farmers of the land revenue having "only an hereditary right of farming the village." Now, as regards such khots it was held by this Court in the case of Tajubai V/s. The Sub- Collector of Kulaba (1866) 3 Bom. H.C., A.C.J. 132 that the khot settles with Government for "assessment of the village as a whole " and that "he may let out for cultivation, or himself cultivate, without making any additional payment to Government on that account, any waste or uncultivated land of the village." And it was held in that case:--"The right to cultivate such waste or other lands as may be at the Khot's disposal or to give them out in cultivation under such terms as may be most to his advantage, must, consequently, be viewed as the recognised mode of his remuneration for the services rendered." This view of a Khot's rights was concurred in by Couch C.J. and Melvill J. in Ramchandra N. Mahajan V/s. The Collector of Ratnagiri (1870) 7 Bom H.C. A.C.J. 41 where they said :-"His occupation of the land without making any additional payment is really part of the fruits of the Khot-ship and is only provisional upon its continuance."