# 2 S.C.R. SUPREME OOURT Rl£PORTS ,. '! VlTHAL YESHWANT JATHAR v. SHIKANDARKHAN MAKH'fUMKHAN 8ARDESAI

- **Citation:** [1963] 2 S.C.R. 285
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** A. K. Sarkar, K. N. Wanchoo, K. c. DAS GUPTA, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2-s-c-r-supreme-oourt-rl-ports-vlthal-yeshwant-jathar-v-shikandarkhan-makh-2690
- **Pages:** 12

## Headnote

Watan Lanrls-Pirpetual /eaB<-Fixation of higher rent
by GOfJernment-Whether Watonrlar entitlerl to enhance rentOompulsory acquisition-Apportionment
of compensation-If
Watanrlar entitlerl only to capitaliserl value of rent-Bombay
Hererlitary Offices Act, 1874 (Bom. III of 1874), ss. 5 anrl 9.
Ii;i 1863, ,the Watandar granted a permanent lease of
watan lands at a fixed rent of Rs. 727/- per year. In 1907 the
Watandar applied under s. 9 of the Watan Act for declaring
the lease null and void and for possession of the lands. The
Collector rejected the application but directed an additional
amount of rent to be paid. The Watanda< moved the Government and by an order dated May 23,1911,the Government fixed
the rent at Rs. 1245/4)-. Some of the lands were compulsorily
acquired and the compensation was apportioned between the
Watandar and the tenant in the proportion of 10: 6. On
appeal the High Court held that the Watandar was entitled to
claim that the tenant should pay enhanced rei;it and on that
basis apportioned the compensation in the proportion of
55: 45.
Held, that the Watandar was not entitled to enhance the
rent and that ne Was only entitled to the capitalised value of
the rent as his share of the compensation. In an application
under s. 9 of the Watan Act the Collector has first to decide
whether there are reasons for declaring the alienation null and
void. If he decides that there are good reasons he is \ogive the
declamtion and thereafter he may either transfer the possession to the Watandar or take action under s. 9(2), maintain
the possession of the alience and collect from him the proper
amount as the profits from the land for payment to the Watandar. In such a case, where the alienation was a lease, the
former lease ceased to be effective and the lessee henceforth
continued in possession on the strength of the Collector's permission. But if the Collector found no reasons to declare the
lease null and void, he could take no action under s. 9(2).
In
the proceeding of 1907 the Collector had refused the declaration attd consequently he had no jurisdiction to make allf
196t
A;ril 19.
1962
V ithol 1ishw,,nt
Jathcr
v.
ShiiontltJJkl.u11
14 altAtlltnkh"1
Sartlut.i
DasJ.
286
SUPREME OOURT REPORTS (1963]
order under s. 9(2) and hu order directing the tenant to pay
addition rent was without jurisdiction.
From this order it
could not be inferred that he had declared the lease null and
void. Nor did the Government declare the lease of 1863 null
and void; it merely ordered that the rent should be revised
and fixed at Rs. 1245/4/-. It proceeded on the basis that the
lease was subsisting the order of the Government was one giving
sanction to the lcase·ofthe Watan Jands to the person in
possession at this revised rent keeping the· other terms regarding the leaJe being permanent and the rent remaining fixed
unaltered. The action of the Government must therefore be
held to be under s. 5, and not under s. 9 of the Act.
Crv!L APPELLATE JURISDICTION : Civil Appeal
No. 379 of 1957.
,.
I
< ••
Appeal from the judgment and decree dated
D,ecember 3, 1954, of the Bombay High Court in
F. A. No. 287 of l!l53.
I
S. B. JatMr, E. Udayarathoom
a.nd B. P.
Jlfaheshwari, for the appellant.
S. G. Patwurdhan,J.B. Dadadianji, S.S. Andley,
Rameshwar Nath
a.nd
P. L. Vohra,
for
the
•
respondent.
1962. April 19. The Judgment of the Court
wa.;i delivered by
DAS GUPTA, J.-Tbis appeal arises out of a.
reference under s. 30 of the Land Acquisition Act
a.s re"ards the apportionment of Rs. 35,102-10-0,
the ~ompensa.tion awarded for two plots of land
numbered, Survey N'o. 37 Kambha.pur and Survey
No. 137 Narendra. It is no longer disputed that
these form pa.rt of a Wa.tan. The dispute as regards
the apportionment bas arisen between the Wata.nda.r
and the person in actual possession of the land, the
a.pp!'lla.nt before us.
The Land Acquisition Judge ma.de an order
that the compensation be apportioned in the ratio
of JO, 6, the 10/15tb to be given to the I11ondlord and
th

## Text

2 S.C.R.
SUPREME OOURT Rl£PORTS
,. '!
VlTHAL YESHWANT JATHAR
v.
SHIKANDARKHAN MAKH'fUMKHAN
8ARDESAI
285
(A. K. SARKAR, K. N. WANCHOO, .K. c. DAS GUPTA
and N. RAJAGOPALA AYYANGAR, JJ.)
Watan Lanrls-Pirpetual /eaB<-Fixation of higher rent
by GOfJernment-Whether Watonrlar entitlerl to enhance rentOompulsory acquisition-Apportionment
of compensation-If
Watanrlar entitlerl only to capitaliserl value of rent-Bombay
Hererlitary Offices Act, 1874 (Bom. III of 1874), ss. 5 anrl 9.
Ii;i 1863, ,the Watandar granted a permanent lease of
watan lands at a fixed rent of Rs. 727/- per year. In 1907 the
Watandar applied under s. 9 of the Watan Act for declaring
the lease null and void and for possession of the lands. The
Collector rejected the application but directed an additional
amount of rent to be paid. The Watanda< moved the Government and by an order dated May 23,1911,the Government fixed
the rent at Rs. 1245/4)-. Some of the lands were compulsorily
acquired and the compensation was apportioned between the
Watandar and the tenant in the proportion of 10: 6. On
appeal the High Court held that the Watandar was entitled to
claim that the tenant should pay enhanced rei;it and on that
basis apportioned the compensation in the proportion of
55: 45.
Held, that the Watandar was not entitled to enhance the
rent and that ne Was only entitled to the capitalised value of
the rent as his share of the compensation. In an application
under s. 9 of the Watan Act the Collector has first to decide
whether there are reasons for declaring the alienation null and
void. If he decides that there are good reasons he is \ogive the
declamtion and thereafter he may either transfer the possession to the Watandar or take action under s. 9(2), maintain
the possession of the alience and collect from him the proper
amount as the profits from the land for payment to the Watandar. In such a case, where the alienation was a lease, the
former lease ceased to be effective and the lessee henceforth
continued in possession on the strength of the Collector's permission. But if the Collector found no reasons to declare the
lease null and void, he could take no action under s. 9(2).
In
the proceeding of 1907 the Collector had refused the declaration attd consequently he had no jurisdiction to make allf
196t
A;ril 19.
1962
V ithol 1ishw,,nt
Jathcr
v.
ShiiontltJJkl.u11
14 altAtlltnkh"1
Sartlut.i
DasJ.
286
SUPREME OOURT REPORTS (1963]
order under s. 9(2) and hu order directing the tenant to pay
addition rent was without jurisdiction.
From this order it
could not be inferred that he had declared the lease null and
void. Nor did the Government declare the lease of 1863 null
and void; it merely ordered that the rent should be revised
and fixed at Rs. 1245/4/-. It proceeded on the basis that the
lease was subsisting the order of the Government was one giving
sanction to the lcase·ofthe Watan Jands to the person in
possession at this revised rent keeping the· other terms regarding the leaJe being permanent and the rent remaining fixed
unaltered. The action of the Government must therefore be
held to be under s. 5, and not under s. 9 of the Act.
Crv!L APPELLATE JURISDICTION : Civil Appeal
No. 379 of 1957.
,.
I
< ••
Appeal from the judgment and decree dated
D,ecember 3, 1954, of the Bombay High Court in
F. A. No. 287 of l!l53.
I
S. B. JatMr, E. Udayarathoom
a.nd B. P.
Jlfaheshwari, for the appellant.
S. G. Patwurdhan,J.B. Dadadianji, S.S. Andley,
Rameshwar Nath
a.nd
P. L. Vohra,
for
the
•
respondent.
1962. April 19. The Judgment of the Court
wa.;i delivered by
DAS GUPTA, J.-Tbis appeal arises out of a.
reference under s. 30 of the Land Acquisition Act
a.s re"ards the apportionment of Rs. 35,102-10-0,
the ~ompensa.tion awarded for two plots of land
numbered, Survey N'o. 37 Kambha.pur and Survey
No. 137 Narendra. It is no longer disputed that
these form pa.rt of a Wa.tan. The dispute as regards
the apportionment bas arisen between the Wata.nda.r
and the person in actual possession of the land, the
a.pp!'lla.nt before us.
The Land Acquisition Judge ma.de an order
that the compensation be apportioned in the ratio
of JO, 6, the 10/15tb to be given to the I11ondlord and
the remainder to the tenant. The correctness of
I
r
..
2 S.C.R.
SUPREME COURT REPORTS
287
this was challenged in appeal. It was urged that
the rent was fixed in perpetuity aud ·the landlord
had no 1 ight to increase the rent, and so, the landlord should get only the capitalised value of the
rent payable for the acquired lands an«;] the remainder should go to the tenant. The High Court held
that the landlord had the right to claim that the
tenant should pay enhanced rent and directed the
compensation to be apportioned in the proportion
of 55 to 45 between the landlord and the tenant.
Against this decision this appeal has been
preferred on certificat<J granted by the High Court.
The real question in controversy is whether
at the date of the acquisition, the landlord (the
Watandar) bad any right to enhance the rent.in
respect of these lands. It appears th~t in 1963
a permanent lease was executed by the then
Watandar in favour of the appellant's predecessors.
The rent also was permanently fixed by the lease
at Rs. 727/- per year.
In 11J07 the Watandar
made an application under s. 9 of the Bombay
Hereditary Offices Act, 1874-which is described in
short as the ~·Watan Act". In this application he
asked for a declaration that the alienation by the
lease of 1863 be declared null and void and the
Watandar be put in possession of the land leased.
The Assistant Collector, before · whom the
application come up for hearing rejected the
application and refused to put the Watandar in
possession or to cancel tqe lease of 1863 .. On appeal
the Collector by his or/l11r dated March 16, 1908
maintained· the Assistan;. dollector's order with the
modification that he directed an additional amount
of rent equal to the case paid on the land to be pa.id
by the lessees. An 'appeal to the Commissioner
was unsuccessful. · Then the Watandar moved the
Government of Bombay, The Government, ·made ·
an order on May 23, 1911, fixing the rent .payable
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SUPREME OOURT REPORTS [1963j
for the lands covered by· the lease at Rs. 1245/4/·.
The effect of this order by the Government requires
ca1·eful consideration .
It is to be mentioned, however, that in the
yoe.r 1926 the Watande.r a.gain moved tho Govern-·
ment for a further increase of the rent, or for the
restoration of the lands; and thereupon the Governmont made an order in 1927 fixing the rent at
Hs. 43(10/· and also directing that the rent leviable
should
be
revised
periodioally at intervals of
10 yl'ars.
I In 1928 the tenant brought a suit against the
Secretary of State for India and the Watandar in
the Court of the First Class Subordinate Judge,
Dharwar,/raying for a declaration that the lands
roentione in the Schedule to the plaiqt-which are
the lands in respect of which the orders mentioned
above were made by the government-did not form
part
of the Watan lands,
that in any case
the plaintiffR had
acquired
the
statue
of
Watandars and further that the government
rei>olutions of 1911 and of 1927 were ultra vire.s.
The learned Subordinate Judge held that the lands
did form part of the Wate.n and that the Watan Act
was applicable to these lands. He also held that
the order of the Collector in l9f,8, though defective
in form was in substance one under s. 9, suh-s. 2 of
the Watan Act and therefore it oould not be said
to be ultra 1>ires.
He also held however that the
order of Government in fixing rent at R3. 1245/4/·
which was well above that the Collector had fixed
was ultra vires; but that the, plaintiff was not entit·
led to any declaration that the Government reeolution of 1911 was uUra vires beoauee of the law of
limitation. The learned Judge further held that
the government resolution of 1927 was ultra vires.
Accordingly he made an order directing the first
defendant, the Secretary of Staw for India in
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~ S.C.R.
SUPREME COURT REPORTS
280
Council, not to levy a rent higher than Rs. 1245/4/-
in enforcement of the resolution of 1911 and declaring that the higher rent levied by the Collector
purporting to be under the 1927 resolution was
unauthorised.
He also made an order directing
the realisation of the excess amount of Rs. 4582-2-0
from defendants Nos. 1 and 2.
Against this decision, the Secretary of State
for India, the defendant No. 1 as also the Watan,
dar, the defendant No. 2 appealed to the High
Court. No appeal was however preferred by the
plaintiff. The High Court (Beaumont C, J. and
Wassoodew J.) dismissed the appeal, except as
regards the order directing both the defendants
Nos. 1 and 2 to pay the excess amount. The learned Judges altered
this to a direction that the
amount should be recovered from the defendant
No. 2, the W'atandar, only. Except for this they
dismissed the appeal.
They held in agreement
with the learned Subordinate Judge that the government's order of 1927 was ultra vires. The learned
Judges were of opinion : (1) that the order by
government in 1911 was not an order under s. 9
and could only be considered to be legal on the
basis that it was a grant of a fresh lease by the
Watandar at the rent of Rs. 1245/4/-
with the
sanction of government under s. 5 of the Watan
Act; and (2) that in any case in making the order
in 1927 the government was acting beyond their
powers as any action under s. 9 of the Watan Act
must in the first instance be taken by the Collector
and could not be taken initially by the Government.
The result is that as between the parties, viz.,
the Watandar anrl the tenant it can no longer be
disputed that the government resolution fixing the
rent of the Watan lands at Rs. 1245/4/- is legally
binding. In deciding the question whether it is
open to the Watandar to increase the rent it is
neoes.sar;y to decide whether th11 government's
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290
SUPREME COURT REPORTS [1963)
action can be properly held to be one under s. 9 or
sanctioning a fre11h lease at Rs. 1245/4/-.
Before the High Court it. was urged on behalf
of tho tenant.-appellant that the earlier decision of
that Court, which has been mentioned above, that
the order of the government fixing the rent at
Rs. 1245/4/- was not an order under s. 9 and
amounted in law to the sanction of the government
to the grant of a fresh lease at Rs. 1245/4/- to the
former tenant operated a.s res judica.ta between the
parties. The learned Judges ·of the High Court
have rejected this contention in the view that what.
the Court said on the earlier occasion wa.s obitor.
The correctneBB of this view is challenged before us
by tho appellant. It is urged that the fact that
another ground was given by t.he High Court (on the
earlier occasion)for its conclusion that the government
order of 1927 could not stand does' not alter the
position that this ground that the government order
of 1911 was not one under s. 9, sub-s. 2 but amounted to a sanctioning of a fresh leasei wa.s also decided
as a basis for the ultimate conclusion. It is well
settled that if the final decision in any matter at
issue between the parties is based by a Court on its
decisions on more than one point-each of which
by itself would be sufficient for the ultimate
decision-the decision on ea.oh of these points operates as res judica.te between the parties. (Vide
Kishori Lal v. Dem PrrJ81.Ld : (1) .A.nnamnuilai v.
Lakshmanan; (')
It was pointed out, however, on behalf of the
respondent that the tenant did not file any appeal
at all against the Subordinate Judge's decision
refusing to interfere with the government's order
and so before the High Court no que11tion as regards
the government's order of 1911 was at i88ue. For
that reason, it is argued the High Court's decision
on the earlier oocasion as regards the nature ot
the order of 1911 cannot operat.e as res judicat&.
(I) A. L ll.. (I@) PM. 511.
(2) A.LR. (1939) Mad. 433.
I
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J
i
2 S.C.R.
SUPREME COURT REPORTS
291
We do not propose to investigate the question
whether the High Court's earlier decision ·that the
government's order of 1911 amounted in law to
sanctioning a fresh lease operates as res judicata or
not, as, quite independently of that decisiorl, we
think it proper to hold tb.at the government's order
of 1911 is not an order under s. 9 (2) of the Watan
Act but amounted only to a sanction of a fr~sh
lease.
Section 9 of the Watan Act is in these
words:-
"(l) WhenevM any watan or any part
thereof, or any of the profits thereof, whether
assign~d as remuneration of an official or not,
has or have, before the date of this Act
coming into force, passed otherwise than by
virtue of, or in execution of, a decree or order
of any British Court and without the consent
of the Collector and transfer of ownership in
the .Kevenue records, into the ownership or
beneficial possession of any person not a
watandar of the same watan, the Collector
may, after recording his reasons ·in writing
declare such alienation to be null and void,
and order that such watan, or any part thereof, or any of the profits thereof, shall from
the date of such order belong to the watandar
previously entitled thereto, and may recover
and pay to auch watandar any profits thereof
accordingly.
(2) If such part of a watan be land, it
shall be lawful for the Collector, instead of
transferring . the possession of the land, to
demand and recover the full rent ordinarily
pail by tenants of land of . similar description
m the same locality, and the amount so
recovered shall be considered as the profits.
The deoillion of the Collector as t;o wliat w
the fullrent llWl be~"
•
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sar-.a
o.,J.
292
SUPREME OOURT REPORTS [1963]
Tho relief which a Watandar can obtain under
this section is in the first place a declaration that
the alienation by which a transfer of 01vnership or
possession was effected was null and void.
When
such declaratirn is given the Collector may do one
of two things.
He may either transfer the possession of the land of tho Watau tot.he Wa.tandar as
a conseq iential relief of tho declaration; or instead
of transferring such posses.ion he may recover for
the Watand&r tho profits of the land.
The measure of such profits would be tho full rent ordinarily
paid by tenants of land of similar description in
the same locality.
The first thing which the Collector 'has therefore to decide when an application is made by a
Watandar for relief under a. 9
is : whether there
are reasons for declaring tho alienation null aad
void. If he decides th;it there arc no such reasons
the application must be rejected.
If, on the contrary, the Collector is satisfied that. there are good
reasons for declaring the alienation null and void
he is to record his reasons a.nd give a deohration
ns prayed for that the alienation was null and void.
Having made such declaration he is then to decide
whether the possession should transferred to tho
Watandar or action should be taken under s. 9(2)
that is, instead of transferring tho possession of the
land, he should coll~ct from the person in possessi1>n the proper amount as the profits from the land,
for payment to the Watandar.
It is important
to notice that action under sub-section 2 can be
taken only on the basis that the alienation has
ceased to have any legal force.
Thus where the
islienation was by way of lease, action under s.9(2)
can 'be taken only on the basis that the lease is no
longer effective in law and the relationship of
landlord and tenant
has ceased between the
Watandar and the pen.on in posseBBion. Where
i he Collector takes ac~ion under 11- 9(2), the pel'llOJi
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2 S.C.R.
SUPREME COURT REPORTS
293
formerly in possession as a lessee, continues in
possession henceforth not as a lessee but on the
strength of the Collectors's permission only.
In
other words, in taking action under
s.9(2) the
Colle~tor is not creating a fresh lease in place or
the lease tha~ has. been. d.,clared null and void but
only directs that the person in possession is to
continue in possession subject to the payment of
such amount as he decides to be the full rent
ordinarily paid by tenants of land of similar
description in the same locality.
The Assistant Collector, before whom
the
application of the Watandars, predecessors or the
present respondent Qn,der s.9
of the Watan Act
came up for consideration. rejected the application
of Matunkhan asking that the lands enjoyed by
Bhaskarrao Jather on a perpetual lease should be
fully restored to his possession cancelling the lease
passed in 1863."
That is, he refused the prayer
for a declaration that the alienat.ion was null and
v.oid necessarily refused the prayer for consequential
relief. As has been already .indicated, the Collector
who heard the appeal was of opinion that the order
appealed against "was undoubtedly correct in the
main" but still he ordered '·an additional amount
of rent equal to the cess to be paid."
There is no
suggestion in the Collector's order that in his view
the Assistant Collector had been wrong in thinking
that there are no reasons for declaring the alienation to be null and void. On the contrary, the
Collector's order indicates that he agreed with the.
Assistant Collector in the view that the alienation
could not be declared null and void. To read this
appellate· order as making by implication a declaration that the lease of 1863 was null and void is
not only to read into it words which are not there
but indeed to go against the clear tenor of the
words which have been actually used. There is no
j ustifica.tion in our opinion, to hold that when t~e
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294
SUPREME COURT REPORTS (1963]
Collector made the order that an additional amount
of rent equal to tho cess be paid be must have had
in mind the provisions of s.9(2) of the We.tan Act
and so the entire order should be read aR giving
first, by implication a <lool»ration that the lease
was null and void and, secondly, making an order
for collection of profits on behalf of ~the Watandar
from the person in possession. It is true that under
the law the Collector was aot entitled to m11.ke
this order for payment of additional rent unless be
first declared the prcTious lease to be null and void
and then found that th~ previous rent together with
the additional amount of rent represented tha full
rent ordinarily paid by tenants of land of similar
description in the same locality.
From the mere
fact that this order was made by him for payment
of additional amount of rent equal to cess, it is not
however permissible to W()rk back and imagine
something which was not said by him.
When the
matter came up to the government ."J.fter tha Commissioner had dismissed the appeal from tile Collector's decision the
government also made
no
declaration that the lease or 1863 was null and void.
But, after setting out certe\in circumstances which
seemed to show that at tho time whoo the lease was
granted the interests of tho Watandar were not
properly considered by the lessee who hold a quasi
fiduciary relation towards tho W3tandar, the government ordered :-"The rent should therefore now be
revised and fixed at Rs.1245/4/- being a sum equal
to the present a rental plus the judi plus the local
fund cess."
The government was thus clearly
acting on the basis that th~ person in possession
was a tenant of tho Watandar but rent for the
tenancy should be fixed at Rs.1245/41-.
Such action
can not
by
any
stretch of imagination be
considered to be an action under s.11 of the We.tan
Act. The only legal basis that can be found for the
government'• action is in e.5 of the We.tan Act.
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2 s.c.R.
SUPREME COURT REPORTS
295
That section provides that without the sanction of
the State Government ...................................... .
it shall not be competent to a Watandar to mortgage,
charge, lease or alienate, for a period beyond the
terms of his natural life, any watan or any part
thereof, or any interest therein, to or for the benefit
of any person who is not a watandar of the same
watan. By necessary
implication
this section
authorises the State Government to sanction the
mortgage, charge, alienation or lease, by a Watandar, for a period beyond the term of his natural life
of any watan, or any part thereof, or any interest
therein, to or for the benefit of any _person who is
not a watandar of the same watan, and on such
sanction being given the Watandar has power to
act accordingly. It is known that after the order
of the government made in 1911, the former tenant
continued in possession and the Watandar received
from him the rent fixed by the government, that is
Rs.1245/4/· for the Watan. In all these circumstances, it is reasonable to hold that by the order of
1911 the government was giving its sanction to the
lease of the watan lands to the person iu possession
at this revised rent. In consequence of the government's order therefore a lease came into existence
at the rate of Rs. 1245/4/- in place of the old lease
·of 1863.
If that be the position, is the Watandar
entitled to increase his rent? There was no docu·
ment in writing for the lease which came into
existence after the government's order of 1911. It
is quite clear, however, from the order of the govern.
ment that the only change it sanctioned in the
terms of the former lease was as regards rent.
That was changed from Rs.727/· to Rs.1245/4/-; but
the other terms, namely,
that the lease was
permanent and the rate of rent would remain fixed
from the date of creation of the lease remained
1maltered. To use the wor<ls of Chief Justice
W6S
Virhal Y1shwane.
Jothor
v.
Shikandarlrban
M akhlumkhan
Sarduoi.
DasJ.
Yi1•al Y 1•U¥1tt
Jarl11n
••
Sh.hniMtlwn
Makhtum1'1tan
S•iu.i
DtUJ.
296
SUPREME OOURT REPORTS (1963)
Bea.umont in the e&rlier litigation between the
parties: "the Government resolution dated the 23rd
May, 1911 amounts to an opinion to a confirmation
of the 1863 lease with a modification as to the
rent." The \Vatandar had therefore no right to
increase the rent.
The result is that out of the amount of
compensation awarded for these lands, the respon·
dent being the landlord, is entitled to only the
capitali8e~ value of the rent. The rent for the
entire W Rtan, which is stated to be 400 acres of
land, being H.s.1245/4/- the proportionate rent for
the lands acquired, that is, 30 a.cres and 32 gunt.has
works out at about Rs.1>5/!l/-. The ca.pitalised value of
this at twenty-five times, a.mounts to Rs-2389/1/-. The
apportionment should therefore be that Rs.2389/1/-
of the amount of compensation be awarded to the
respondent and the remainder to the appellant.
For the reasons mentioned above, we allow
•
the appeal and direct the compensation to be appor.
•
tioned in the manner
mentioned above.
The
appellant will got his costs here and below.
Appeal aUowe.d.
•