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Judgment
Agarwala, J.—This is an appeal by the plaintiffs from a decision of the District Judge of Muzaffarpur reversing a decision of the Munsif of Sitamarhi. The plaintiffs are the proprietors of Mauza Kushahar in the Sub-Division of Sitamarhi. The defendants who are residents of villages Harnahi, Sundarpore, Mahuaria, Rasidpur, Kamarauli, Siubar and Parsaunilon the north and north-west of village Kushahar, have been sued in a representative capacity. The plaintiffs claim that they have a right to maintain and to cut a part of the existing bunds in the Lapaha Nala and Kabiria Bari and Bhuthie pynes according to the necessities of irrigation of the lands in Mauza Kushahar and also to close and repair the bunds. In 1911 by a notification u/s 6, Bengal Embankment Act of 1882, the provisions of Clause (b) of Section 76 of the Act were extended to the District of Muzaffarpur.
This had the effect of prohibiting the obstruction of any water course within the boundary of the Muzaffarpur District without the previous permission of the Collector of the district.
In 1924 the plaintiffs erected a bund in the pynes mentioned above and on a dispute arising with Nawab Singh and others, who are defendants in the suit out of which this appeal has arisen, the latter were prohibited by an order u/s 144, Criminal P.C., from interfering with the bunds. In 1928, some of the plaintiffs again erected bunds and were prosecuted u/s 76(b), Embankment Act, and fined for having erected the bunds without having obtained the permission of the Collector. As'' a result of this dispute between the plaintiffs and the defendants regarding the right to erect and out the bunds as occasion requires, the .plaintiffs instituted the present suit to establish the right which they claimed. The suit was decreed by the first Court after consideration of all the issues raised in the case.
On appeal by the defendants the learned District Judge has held that the suit was not maintainable by reason of provisions of the Embankment Act read with Section 42, Specific Belief Act. He has therefore dismissed the plaintiffs'' suit without considering the other issues raised in the case.
The reason for the learned District Judge''s decision is that in his view the plaintiffs were not entitled to what he calls declaration based on a mere contingent right. This contention has been supported by the learned advocate for the respondents. The learned advocate contends that the effect of the notification u/s 6, Embankment Act, was to abrogate any right the plaintiffs may have had to erect or demolish the bunds complained of except with the permission of the Collector of the District and that as it is impossible to predicate whether the Collector''s decision would be granted or withheld, the claim for a declaration which would be of use to the plaintiffs only if the Collector permitted them to erect or demolish the bunds should not be granted.
Reliance was placed on a decision of the Allahabad High Court in Mt. Faryad Fatima Bibi Vs. Mujahid Abbas and Others, , in which it was held that
Declaratory relief being in the discretion of the Court, it should not be granted in anticipation of a contingency which may not arise.
It may be observed however that the ground of the decision was that the learned Judges of the High Court were of opinion that in the circumstances of the case the Court below was not justified in exercising its discretion in granting the relief claimed by the plaintiff. No reference was made to Illus. (c), (d) or (e) of Section 42, Specific Relief Act, which are all cases of declaratory reliefs founded upon contingent rights, and the case was decided purely on its own facts. The next case referred to was Rafiq-ud-din v. Asgar Ali AIR (1922) Pat 392, in. which a claim for a declaration that the ,plaintiff was entitled to contribution from the defendants if and when the occasion arose was negatived.
The learned Judges who decided that case pointed out that the plaintiff was neither claiming a declaration as to his legal character nor a declaration of his rights to any property in the sense in which the word "property" is used in Section 42, that is to say, a right to existing property. Here, in the present case, the plaintiffs are claiming an existing right in respect of the bunds.
The decision of the Privy Council in Janaki Ammal v. Narayanasami Aiyar AIR (1916) PC 117 was also referred to. That was a case in which the Privy Council held that a presumptive reversionary heir was not entitled to a declaration of his right as reversionary heir during the lifetime of the widow of the last male holder.
The decision in that case does not appear to have any bearing on the facts of the present case. In Isri Dutt Koer v. Hansbutti Koerain (1884) 10 Cal 824 the Privy Council held that although the granting of a declaratory decree is discretionary with a Court yet in the class of case before it, which was a suit during the lifetime of a Hindu widow by a presumptive heir for a declaration that an alienation by her operated only during her lifetime, the grounds for the discretionary refusal of the decree should be very strong. This decision follows Illus. (d) of the Section and gives effect to it. In my view, therefore the ground given by the learned District Judge for holding that the plaintiffs were not entitled to a declaration sought for is not sustainable.
As I have already pointed out above, the relief which the plaintiffs claimed in their plaint was an unqualified right to maintain and out a part of the existing bunds according to necessities of irrigation and to close and repair them. Whether the effect of the Notification u/s 6 of the Act is to abrogate the existing right to open or close bunds according to the practice prevailing at the date of Notification, for the purposes of irrigation, I have myself considerable doubt; but it is not necessary in the present appeal to decide that question because the learned advocate for the plaintiffs-appellants stated that he would be satisfied with a declaration that subject to the permission of the Collector the plaintiffs have the right to maintain and out the bunds as claimed.
The learned advocate for the respondents contends that the plaintiffs are not entitled to this qualified right inasmuch as the right they claimed in the plaint was an unconditional right. The only case on which reliance was placed to this proposition is the decision of the Privy Council in Maina v. Brijmohun (1890) 12 All 587. That was a case however in which their Lordships held on the evidence that the plaintiffs had failed to establish the rights which they claimed.
The last objection of the learned advocate of the respondents was that this Court should not interfere with the discretion of the Court below in refusing a declaration. This Court does not interfere ordinarily with the discretion of the Court below when that discretion has been exercised judicially on a full consideration of the evidence in the case. In the present instance the Court below has not directed its mind to the evidence in the case at all but has disposed of the suit on a preliminary objection. We are not therefore deviating from the ordinary rule of this Court in the matter of interfering with the discretion of the Court below when we do not accept the decision of the Court below in a case where the discretion has not been exercised judicially. I would therefore set aside the order of the Court below and direct under Order 41, Rule 23, that the appeal be re-admitted and disposed of in accordance with law. The costs of this appeal will abide the result.
Rowland, J.
I agree. The Munsif had framed nine issues and the District Judge refers only to the plea raised by the defence that the provisions of the Embankment Act are a bar to the suit. This was issue 4. Now the relevant provision of the CPC is Section 9 which enacts that the Courts shall, subject to the provision herein contained, have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. There is nothing in the Embankment Act which is a bar to any right of suit. In discussing this issue the learned District Judge mixed up considerations of the effect of the Embankment Act which, it was contended, had taken away private rights. This appears to be the subject-matter of issue 9; but that issue is not recited as one of the points for determination.
The learned District Judge also refers to Section 42, Specific Belief Act, which has nothing to do with the question whether the provisions of the Embankment Act are a bar to the suit and which Section incidentally he refers to as Section 41. I think it desirable that Courts of Appeal in writing judgments should bear in mind the provisions of Order 41, Rule 31, Civil P.C., which are analogous to those of Order 20, Rule 4, regarding the judgment of the first Court. Each-point which is for determination should be-clearly set out, otherwise confusion of mind arises as in this case in which it hardly seems clear whether the District Judge regards himself as having disposed of issue 9 or not.