Mahadeo Lal and Another vs Pratap Udaynath Sah Deo and Others

Sinha, J.—This is a plaintiffs'' appeal from the decision of the learned Subordinate Judge of Ranchi dismissing the plaintiff''s suit for a mere declaration that the properties mentioned in Schedule B of the plaint are permanent, transferable and heritable jagir of the plaintiffs.

The defendant No. 1 is the Maharaja of Chota Nagpur and the proprietor of the estate in which the property in question is admittedly situate. The plaintiffs alleged that there was tenure known as ''Tisia Salaiya lot'' consisting of 14 villages which were granted to the remote ancestor of the defendants Nos. 2 to 18 sometime in 17th Century A.D., to one Prahlad Rai, who was the predecessor in title of the defendants second party (defendants Nos. 2 to 13). A genealogical table contained in Schedule C to the plaint was attached to the plaint as showing the relationship of the defendants second party to the said Prahlad Rai.

The plaintiffs further alleged that the defendants second party and their ancestors had been dealing with the tenure in question aforesaid as their permanent, heritable and partible jagir, and that the proprietors of the estate had been recognising that right all along; and that the cadastral survey recorded the tenure as jagir of the defendants without any qualification. Shortly before the revisional survey, the defendant No. 1 brought a rent suit against the defendants second party, and put the entire tenure to sale, and one Hari Bux Marwari purchased the tenure on 24th February 1933. In order to deposit the decretal sum as also compensation to the auction purchaser, the tenure holders aforesaid borrowed Rs. 5800 from the plaintiffs giving in usufructuary mortgage the four villages contained in Schedule B to the plaint, and put them in possession of the same. On the deposit being thus made the sale was set aside. Subsequently, the plaintiffs purchased the right, title and interest of mortgagors in the villages aforesaid contained in Schedule B to the plaint subject to the mortgage in their favour. The plaintiffs therefore are now in possession of the properties as auction-purchasers. During the revisional survey the tenure was wrongly entered, so the plain, tiffs alleged, as ghatwali tenure, and after publication of the revisional record of rights the defendant No. 1 instituted a rent suit against the second party defendants being Rent Suit No. 1176 of 1936-37 alleging for the first time that the tenure was a private ghatwali tenure and not a permanent and transferable one, and that, therefore, the defendants second party were liable to ejectment u/s 59, Chota Nagpur. Tenancy Act. The plaintiffs, therefore, instituted a suit for making their position clear in law by having a declaration that the tenure was a permanent, heritable and transferable one.

The defence of the defendant No. 1 in substance was that the tenure in question was a ghatwali jagir granted to Chama Sahi, the ancestor of defendant No. 2 as a service tenure on condition of his maintaining a certain staff for the protection of the neighbourhood subject to the right of the proprietor to dismiss the tenure-holder for neglect of duties. It was further alleged by the defendant No. 1 that the tenure was neither permanent nor heritable nor transferable nor partible, and had never been treated as such by the proprietors of the estate. It was further contended that the entries in the revisional jurvey record of rights are not inconsistent with those in the cadastral survey. The defendants also denied that the plaintiffs had acquired any title by virtue of their alleged purchase of portion of the ghatwali tenures.

Hence the most important issues between the parties were (1) whether the "Tisia salaiya lot" was a permanent heritable, transferable and partible putraputradik jagir as alleged by the plaintiffs, or a zamindari ghatwali tenure as alleged by the defendants; (2) have the plaintiffs acquired any title to any portion of the said tenure by their auction-purchase aforesaid? The learned subordinate Judge after going into the evidence, both oral and documentary adduced by the partiea came to the conclusion that the tenure in question was the zamindari ghatwali tenure, and not a permanent or transferable tenure. In that view of the matter, the Court below dismissed the plaintiffs'' suit with costs to the defendant No. 1. Hence, this appeal by the plaintiffs. In his case, as already observed, the relief sought is a mere declaratory one, and the grant of a (declaratory relief is discretionary with the Court, and cannot be claimed as a matter of right by the plaintiffs. In this case, the admitted proprietor the defendant No. 1 did not do anything in relation to the portion of the tenure purchased by the plaintiffs to indicate that the Maharaja was seeking to eject them. The Court below has gone into the merits of the claim of the plaintiffs, and decided against them. But in our opinion, the suit can be disposed of on the preliminary ground that a suit for a mere declaration like the present does not lie, and if it did lie, the judgment passed by the learned Subordinate Judge refusing to grant the declarations sought can be said to; be an erroneous exercise of discretion.

It also appears that the parties did not adduce all the evidence that was available bearing on the question in controversy between the parties. Hence, in our opinion, it is not necessary to go into the merits of the plaintiffs'' claim. It is enough to hold that the discretion exercised by the Court below in refusing to grant mere declaratory relief can be said to be an unjudicial exercise of discretion. If and when the plaintiffs are sought to be ejected by the contesting defendants, or are actually dispossessed, occassion may arise for them to institute a suit for a declaration of their title, and for confirmation or for recovery of possession, and if such a suit is brought the Court will have once again to go into the question as to the exact nature of the tenure in question. The parties will then be in a position to adduce all the relevant evidence, and the Court will then be in a better position to decide on the merits of the respective claim of the parties.

Hence, without going into the merits of the case of the parties this appeal is dismissed on the preliminary ground that a suit for a mere declaration cannot be entertained. See in this connection the decision of their Lordships of the Judicial Committee in Rajah Nilmony Singh v. Kally Churan Bhattacharjee (74) 14 Bang. L.R. 382.

As a result of these considerations the appeal is dismissed with costs.

Manohar Lall, J.

I agree.