KAZI ABDUL RAHIM Vs. PANDU SADHU NIKAM

JUDGEMENT

(1.) The question in this appeal is whether the plaintiff appellant Khot is entitled to levy from the defendants respondents tenants the amount of rent as fixed in the last Survey Settlement, or whether he is entitled to recover ardhel (half the gross produce) in respect of rice lands and tirdhel (one-third produce) in respect of varkas lands, according to the mamuli vahivat or custom prior to the Survey Settlement. The trial Court held in favour of the Khot, the lower appellate Court in favour of the tenants. The plaintiff Khot appeals.

(2.) The parties belong to the village of Salshet in the Maugaon Taluka, Kolaba District. The original survey settlement was from 1864 to 1892. In 1869, the appellant's predecessor took a lease under Section 37 of the Khoti Leases Settlement Act (Bombay Act I of 1865). In 1902, the revised settlement came into fores but the demands of the Khot were not fixed under Section 38. Accordingly, the plaintiff appellant filed the present suit for rent from Shake 1839 to 1844.

(3.) It is argued for the appellant that in spite of the new revision survey of 1902 the Settlement Officer failed to fix the demands of the Khot, and the latter therefore was entitled to fall back on the demands prior to the previous survey of 1864. For the respondents, reliance is placed on the decision of Beaman J. in Secretary of State for India V/s. Sadashiv Abaji (1911) I.L.R. 36 Bom. 290 : S.C. 14 Bom. L.R. 77, and the ratio deeidendi at pages 302 and 303. It is argued that Government could not possibly have desired to relegate the tenants to the ante- quafced and oppressive system of payment of ardhel and tirdhel and enable the Khot to realise from the tenants sums considerably in excess of the assessment plus the faida or profit given to the Khot under the previous settlement.