N.G. Chandavarkar, J.

1. These second appeals have been heard together and the point which is common to all has been argued in Second Appeal No. 80. That point arises in this way. The suits have been brought by the plaintiff to recover from the defendant the assessment of the lands held by him, in accordance with the survey rates. The defendant resists the claim on several grounds, one of which is that under certain Maphi Istawa Kowls held by him, he has acquired the right to hold the lands permanently on payment of a fixed sum as rent and that therefore, as he is not liable to pay more than that sum, this claim to recover the assessment according to survey rates cannot lie. For the plaintiff it is contended that Civil Courts have no jurisdiction to hear this objection and section 4, clause (b), of Act X of 1876. (The Bombay Revenue Jurisdiction Act) is relied upon. Clause (b) of section 4 provides that no Civil Court shall exercise jurisdiction as to any objections (1) to the amount or incidence of any assessment of land revenue authorized by Government; (2) to the mode of assessment, or to the principle on which such assessment is fixed; and (3) to the validity or effect of the notification of survey or settlement, or of any notification determining the period of settlement. It is an admitted fact that the assessment of land revenue on which the plaintiff has based his claim has been authorized by Government in respect of the lands in dispute which lie in the plaintiff's inam villages and that that assessment is in accordance with the notification of a survey settlement duly made under the Land Revenue Code. The question was raised for the defendant whether what the plaintiff claimed could fall within the definition of "land revenue" in the Bombay Revenue Jurisdiction Act. We do not think that it is necessary for the purposes of these appeals to decide that question, because, assuming that the plaintiff's right as assignee of the Government who can recover land revenue, is substantially that of one claiming such revenue on behalf of Government, the question still remains whether the objections of the defendant based on his howls are objections which fall under any of the three heads of clause (b) of section 4 of the Bombay Revenue Jurisdiction Act. It is conceded for the plaintiff that the objections in question do not come under the second head of clause (b), so that we have to see whether they fall under either of the other two heads. To fall under the first the objection must be "to the amount or incidence of any assessment of land revenue." In one sense no doubt whenever an Inamdar sues an occupancy tenant to recover land revenue according to the survey rates and the tenant resists the claim on the ground that he has acquired a right as against the Inamdar to pay rent or revenue at a permanently fixed rate, he may be said to object to the amount or incidence of land revenue authorized by Government. But it is an objection which does not hit the amount or incidence directly; that is its indirect effect, which is not what the first head of clause (b), having regard to its language, was intended to strike at. The objection must be "to the amount or incidence of any assessment of land revenue" itself and as such. In other words, apart from the question of any other and independent right, if an occupancy tenant complains that though he is bound to pay the assessment of land revenue, the amount or incidence of it as authorized by Government is too high, having regard to the nature of the soil and quality of his land or other like considerations, the objection is one purely and simply to such amount or incidence. But if, without questioning the legality or propriety of the amount or incidence per se, he asserts a right independent of and having no relation to it, such as a right to pay a certain fixed amount annually under a contract between him and the Inamdar, he cannot be said to object to the amount or incidence of the assessment. In such a case what in effect he says is: "The amount or incidence of the assessment is all right. I have nothing to say to that; but you, the Inamdar, have entered into a contract with me and all I claim is that you are bound by it." Nor can such a tenant be said by his objection to object to the validity or effect of the notification of survey or settlement under the 3rd head of clause (b). So far as the notification goes by itself, he does not question either its validity or effect. What in effect he says is: "I am not concerned with either of them. I set up an independent right which has no connection with the question of the validity or effect of the notification of survey settlement." We are of opinion, then, that an objection to come within either of the two heads of clause (b) of section 4 must be an objection which reaches them directly, i.e., an objection to them per se which admits the liability to pay land revenue on the part of the objector but quarrels with its amount, or incidence or the validity and effect of the notification of survey settlement as by themselves objectionable, not because some other right affects them or makes them inapplicable to his particular case. That this is the plain meaning of the Legislature appears clearly from a consideration of the proviso to section 4 and from section 5 of the Act. According to the proviso to section 4, a Civil Court has jurisdiction to entertain any suit where any person claims to hold land, wholly or partially exempt from payment of land revenue under any enactment, or under a sanad or instrument granted by or by order of the Governor in Council under Bombay Act No. 2 of 1863, etc., or any other written grant by the British Government expressly creating or confirming such exemption or a judgment by a Court of law, etc. The effect of this proviso is that where an occupancy tenant holding under Government is called upon to pay land revenue according to the survey rates, it is open to him to resist the claim of Government in a Civil Court on the ground that he holds under a written grant or an enactment, etc., which prevents Government from claiming more than can be recovered under the grant or enactment, etc. And as to Inamdars and occupancy tenants holding under them, section 5 provides that "nothing in section 4 shall be held to prevent the Civil Courts from entertaining" suits between private parties for the purpose of establishing any private right, although it may be affected by any entry in any record of a revenue survey or settlement, or in any village papers. In the present case the defendant virtually sets up his private rights as against the Inamdars and the suits are between private parties. Moreover, section 5, clause (c), provides that nothing in section 4 shall be held to prevent Civil Courts from entertaining suits "between superior holders or occupants and inferior holders or tenants regarding the dues claimed or recovered from the latter." It was held by this Court in The Secretary of State for India v. Balvant Ramchandra Natu (1892) 17 Bom. 422 that an Inamdar is "a superior holder" within the definitions of Regulations XVII of 1827 and Bombay Acts I of 1865 and V of 1879. But it was said that, even assuming clauses (b) and (c) of section 5 applied to the objections of the defendant, all that that section allowed was a suit; here the defendant was not suing but was resisting suits brought against him by the Inamdar. We do not think that the Legislature intended to allow such objections as the defendant has raised only where they were raised by a suit and not in defence. "Objections" in section 4, clause (b), may be raised by a suit or in defence to a suit, but in whichever way they are raised they must be of the particular nature described in clause (b). Where they fall outside that class, they can be raised in defence to as well as by a suit.

2. It was, however, urged before us that sections 52 and 217 of the Bombay Land Revenue Code debarred the defendant from raising the objections in question, founded on the Maphi Istawa Kowls on which they rely. But section 52 does not affect the right of a party who holds lands under Government or an Inamdar by virtue of a special grant; nor does section 217. The effect of the first is to give the Collector the discretion to fix the assessment; the effect of the second is to render the occupants in alienated villages subject to a settlement like the occupants in unalienated villages. But neither section takes away any legal right which an occupancy tenant may have acquired independently of his bare status as an occupancy tenant liable to pay the land revenue according to survey rates. We, therefore, dismiss the appeal without costs.

Appeal No. 90 of 1902.

3. We have already intimated in the course of argument that we must accept the finding of fact by the lower Appellate Court that the grant under Exhibit 17 was unauthorized and not binding on the present plaintiff.

4. The Subordinate Judge, A.P., has decided in favour of the plaintiff the question of limitation raised in this case on the ground that there has been for twelve years before suit no demand on the part of the Inamdar and no refusal on the part of the tenants in respect of rents at a higher rate than that fixed in the kowl, Exhibit 17. But the question does not depend on mere demand and refusal. If it appears on the evidence that the tenants disputed in 1879 the Inamdar's right to recover otherwise than under Exhibit 17 and that, thereafter, for twelve years they went on paying the reduced assessment under that document, the Inamdar's right must be held to be barred. Now, the case of the tenants is that in 1879 when the Inamdar debited them in the receipt books with sums over and above those they had paid in accordance with Exhibit 17, they gave him a notice (Exhibit 13) protesting against the debit entries. But the lower Appellate Court has held that Exhibit 13 is not proved to have been served on the Inamdar. On this finding Mr. Chaubal has invited us to hold that there was no claim based on Exhibit 17, set up by the tenants in 1879, to the knowledge of the Inamdar, and indeed we must come to that conclusion having regard to the facts found by the lower Court. The receipt books for 1879 on which the tenants rely have reference to payments for several years, one of which is the year previous to that of the howl, Exhibit 17. It is found that when the Inamdar called upon some of the tenants to produce their kowls, this kowl, Exhibit 17, was not produced or brought to his knowledge; it is not shown as to other tenants that they produced their kowls and the notice, Exhibit 13, is held not to have been served on him. These facts found by the lower Court show that the tenants did not set up their right based on Exhibit 17 to the Inamdar's knowledge in 1879. Then there remains the fact, also found by the lower Court, that the tenants paid for fifteen years after 1879 the reduced assessment according to Exhibit 17. But we cannot presume adverse possession in favour of the tenants from that single circumstance when the Court of facts has declined to do that, especially because these payments may in the absence of special circumstances be referred to the lawful title of the Inamdar to recover from the tenants assessment to the extent allowed as reasonable by the custom of the village. The special circumstances alleged in the present case have been urged by Mr. Rao as justifying the inference of an adverse right in favour of his clients, but the inference is an inference of fact which the lower Appellate Court has declined to draw, and we see no error of law in that Court's conclusion. As to the savaisut which is not allowed by that Court, it is clear that the contract as to it was conditional upon the continued existence of the measurements accepted by the parties at the time of the kowls as the basis of their mutual claims for the future These measurements ceasing to exist, the basis on which the right to savaisut rested fails. There is no error in the award of interest. We must, for these reasons, dismiss the appeal without costs.

G. Jacob, J.

5. I entirely concur.

6. I would merely add to the judgment in Second Appeal No. 80 of 1902 that the introduction of the first branch of clause (f) of section 4 of Act X of 1876 affords another almost conclusive argument against the plaintiff's contention, since if that contention were sound the object expressly aimed at by the first branch of clause (f) is already fully covered by the provisions of clause (b).

(1) Section 4, clause (b), of the Bombay Revenue Jurisdiction Act (X of 1876), runs as follows:--

4. Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to any of the following matters:--

* * * * * * * * * * * * *

(b) Objections--

to the amount or incidence of any assessment of land revenue authorised by Government, or

to the mode of assessment, or to the principle on which such assessment is fixed, or

to the validity or effect of the notification of survey or settlement, or of any notification determining the period of settlement.