Barnes Peacock, J.
1. This is a suit in which the Plaintiff claims against the Conservator of Forests in the presidency of Bombay and the sub-Collector of Kolaba in the Tanna zillah, a three-fourths share of the proceeds of certain teak and izaili timber which he alleges was cut down by the Government in the village of Pigode. His plaint states that his share in the village of Pigode, or Pigoda, was acquired by hi in as the proprietor thereof, and ho states that it is his watani (hereditary) khoti and izafati (village). He says, "Deducting the 4 annas share which belongs to the Government of the proprietorship of the said village, the remainder of the village, namely, a 12 annas share thereof, belongs to me as proprietor. Although I have a proprietary title to the three-fourths of the whole jungle (forest) of the aforesaid village, including teakwood as well as izaili (inferior wood), by reason of my watani khoti and izafati thereof, the Defendants in the years 1865-66 and 1860-67 cut down teakwood and izaili wood thereof, and sold the same by auction as well as by private sale. Having (a right to take) a share of three-fourths of the proceeds of the same, I made, several applications to both the Defendants, requesting to be allowed to have a three-fourths of the sale proceeds, but I obtained no redress. I sent notices also to them, but received no reply"-and so on. Then he claims three fourths of the proceeds of the timber which he alleges was so cut down by the Government. The principal question is, was he the proprietor of the soil of tree fourths of the village, and as such proprietor entitled, as he alleges, to three-fourths of the jungle, including teakwood as well as izaili.
2. It will be necessary in the first place to consider what were his rights under the izafati title. That depends upon two sunnuds which were put in and relied upon, one dated in 1653, and the other in 1722. The sunnud of 1653 after certain recitals proceeds, "The farman is as follows: From the (beginning of the) months of the year one thousand (and) fifty-four," then there is a blank, the marginal note stating, "There is no grammatical connection whatever between the equivalent of this sentence and what follows in the original. It may probably be intended to moan that the various rights below named, appertaining to the village of Pegoonda, had been enjoyed by Ismailji Abaji from the beginning of the Arabic year 1054." The farman proceeds, " At this time Ismailji Ahaji Desai of the tap pa (district of) Kharapat, in the jurisdiction of the above-mentioned (town), has represented to the threshold of the universe"-that is, the Sovereign-"that the village of Pegoonda in the above-mentioned tappa (district) is a personal holding (khood-rawan) in lien of isabat (dues) in this j way, namely, that the fixed revenue of the above-mentioned village, consisting of ready money and corn, goes into the possession of the revenue station (thana), and some of the (taxes called) bab, and the whole of the (rights called) kanoonat relating to the above-mentioned village (assigned) for the maintenance of (his) children are his own reversionary rights (doombala khood)," -which is translated or explained in the margin to mean-"that will revert to the Sovereign on ceasing to be held by the present holder."-"And the (rights to certain perquisites called) hak-e-lawazimat and (those called) khariastotore of the above-mentioned; tappa (district) are a personal holding;" then the applicant goes on to shew what were his personal holdings, and that the profits of the tobacco shop were a personal holding with a reversionary right to the Sovereign. Then he states, "It is hoped that by the royal grace, a gracious farman may be granted (to him) for the satisfaction of his mind." The farman which was granted is, "Let them (the above-named officers) recognise (the said rights as) reversionary (soombala) and continue the same;" that is to May, let them recognise all his personal rights, with reversion to the Crown, and then after him they are to continue the same rights to his children and children''s children. It appears to their Lordships that the effect of this document was simply to give the grantee as the collector of the revenue certain perquisites arising out of the dues, and to convert that right, which was then a mere personal right with reversion to the Sovereign, into an hereditary right which was to descend to his children and to his children''s children. It appears therefore to their Lordships to be clear that that sunnud gave no proprietary right in the village; it did not give an interest in the soil, and it gave no right to the timber.
3. The next document of 1722, which was a marathi document, is a short one: " To Mashaul-anam (i.e., the honourable) the Desai, the Adhikari and the Kulkarui of talooka (or taraf) Nagothua," and so on. "The villages which are with (i.e., held by) you as izafat have been (i.e., are hereby) ''settled and granted'' or ''granted on certain terms being made'' by Rajishri." Then come the names of three villages of which one is Pigode. "In all three villages have been (i.e., are hereby) ''settled'' (or granted on certain, terms being made). Therefore (as to) the babatas (ceases or tolls) appertaining to the said villages, whether ceases in cash or in kind (grain), whatever the amount (thereof) may come to, (the same) shall be ''received by you'' (or ''paid over to you'')." All that was granted is that he was to be allowed the babatas or the ceases or tolls, he being the Desai, or the collector of the revenue on behalf of the Government. That document therefore did not convey any interest in the soil, but merely gave a certain right to certain ceases or dues as the perquisites of the grantee as the collector of the Government revenue. Therefore as regards his izafati rights they did not give him the right of proprietorship.
4. The next question is, was he entitled to the proprietorship of the soil of the village by reason of his watani or hereditary khoti. With reference to that point a report of Captain Wingate was read from a collection of papers by the Government of India, from which it appears that a khoti had the right of proprietorship; but that was merely the expression of the opinion of Captain Wingate at that time. Since the date of that report, however, the point came before the High Court of Bombay and was judicially determined. In that case-reported in the 3rd Bombay High Court Reports, at page 132-the Government had resumed the khoti, had granted certain rights to the sub-tenants of the estate, and were willing to allow the Plaintiff to take the khoti again upon certain conditions; namely, that she should be bound by the terms which the Government had entered into with the subtenants or holders of the land; and it was held that she was not entitled to have the khoti except upon those conditions. The reasons for the decision were that the khot was not the proprietor of the soil. The learned Judge who decided the case in the first instance went very fully into the matter, and held that the khot was merely an hereditary farmer of the revenue. The reasons are given in the report, and it will be unnecessary to read them. It is sufficient to say that that decision was opposed to the view taken by Captain Wingate to which reference was made from the records of the Government of India. Without expressing any opinion that no khot is or can be the proprietor of the soil, it is sufficient to say that it is clear that the proprietorship of the soil is not vested in every khot.
5. Then the question comes, was the Plaintiff in this case, by virtue of his khoti, entitled to the proprietorship of the soil and to the timber upon it.
6. It appears that an agreement was entered into by the Plaintiff on the 24th of December, 1861, as follows: "I give in writing this kararnama as follows: Being invested under Government Regulation (i.e., Resolution), English Letter, No. 1882, dated the 18th May, 1860, received by me from the Government with (authority) to carry on the vahivat (management) from the year 1859-60 to the year 1886-87 as khoti of the fourth takshim (share) of the manja (village) aforenamed,"-that is, including this village,-"and being also authorized (by the Government) to collect the assessment of the Government shares (also), and having consented to do so, I give in writing the (following) body of clauses relating to the management to be carried on (by me). They are written as below: The full assessment on the village aforenamed fixed at the survey is Rs.2196. 13a. 3p., deducting therefrom the sum of Rs.1648. 5a. 9p. in respect of the Government shares, the assessment on the remaining fourth share has been fixed at Rs.548.7a. 6p. The same I agree to pay by instalments as mentioned below,"- naming four instalments. Then by the 8th section, " The village aforenamed has been given (let) to me for twenty-eight years, from the (end of the year) 1858- 60. Accordingly, for twenty-eight years from the current year 1860-61 up to the year 1886-87, I will without any hindrance continue to the cultivating tenants or their heirs (i.e., I will allow the tenants to hold) such of the khoti-nisbat lands as are entered in their names in the survey papers. The amounts of assessment on those lands have been settled at the survey." Then there are several other clauses, but the more important ones are the 15th and 16th. He says in the 15th clause, "Some land belonging to the afore-named village has ? been divided into numbers and reserved to itself by the Government for preserving a forest thereon. I will preserve the trees thereon. I will not allow any person to cut down the same, nor will I myself cut them down. In like manner I will not allow any person to cultivate the same, nor will I myself cultivate the same. Should any person cultivate the same, or cut down the trees thereon, I will inform Government of the same. Should the Government order that cattle may be allowed to graze on the aforesaid land reserved for a forest, I will accordingly allow cattle to graze; thereon. I will not make any objection thereto. I will also preserve the teakwood trees that may be growing in this village in places other than the survey numbers aforesaid. I will not allow any one to cut them down, nor will I cut them down. If any person does cut them down, I will immediately inform the Government of the same."
7. Now that is an express agreement on the part of the khot that he will preserve all the trees in the Government reserves, and that he will preserve the teakwood trees that may be growing in the village in places other than the survey numbers. Can the Plaintiff in the face of that agreement, whatever his rights may have b on as a khot, say, as he has said in his declaration, that he has "the proprietary title to the three-fourths of the whole jungle (forest) of the aforesaid village, including teakwood as well as inferior wood."
8. It appears to their Lordships to be clear that according to the with section of that agreement, all the timber in the reserves were to belong to the government, and that the khot was not to cut down any of the teakwood, whether in the reserves or not, and that he was not to allow any other person to do so. Then in clause 16 he says: "The Government has given to me the ownership of a fourth part of all the trees that now are growing, and of all the new ones that may grow hereafter in the village aforenamed, excepting the trees in the aforesaid preserved forest, and those on the lands claimed by the people, and those on cultivated lands, as also excepting the teakwood and blackwood trees growing on waste lands." Therefore he admits that the Government, when they authorized him to carry on the management of one-fourth of the village, and to collect the Government revenue thereof, had the power to reserve, and that they did reserve, all the trees in allotments reserved for a forest, and all the teakwood trees in every other part of the village.
9. It appears to their Lordships that there is no evidence that the Government cut down any izaili wood. There is an entry which shews that some persons as trespassers went on to the Government reserves and cut down some izaili timber. A sum is credited to the forest account in respect of the proceeds of izaili (inferior kinds of) wood. The entry is: "Some people having cut wood from the Government forest at Mauja Pigoda without permission, and having used the same for building their own houses and cattle pens, a report was made from the Peta Mahalkaris, Outward No. 109 of the year 1864-65, whereupon an order was received from his Honour the Deputy Conservator of Forests, bearing Registered No. 361, dated the 16th of August, 1865, to the effect that the value of the wood (so cut) should be recovered accordingly; (money was) recovered from the said people as per Memorandum, bearing the Mahalkaris signature, bearing the above date." The entry shews that the Government sued some persons as trespassers for cutting down izaili wood in the Government forest, and the Plaintiff claims in his declaration to be entitled to that izaili wood, because he says he is entitled to all izaili wood throughout the village. There is no evidence in the case of any izaili wood being cut down in any other part of the village, excepting in this portion of the village which was reserved as Government forest. The Plaintiff, as it appears to their Lordships, has not made out a title to any teakwood, and he has not made out a case against the Government as to their having cut izaili wood in any place, nor of their having recovered the value of izaili wood cut in any part of the village, except the Government reserves, in which the Plaintiff was clearly not entitled to any of the trees.
10. Under these circumstances their Lordships are of opinion that the decision of the High Court was right, and they will therefore humbly recommend Her Majesty that the decree of the High Court be affirmed, and that the Appellant do pay the costs of this appeal.
