Norman Macleod, Kt., C.J.
1. The plaintiffs sued for a declaration against the Secretary of State and one Sanava kom Shiddangowda, that they, and not Sanava, were the Watandars of Nagwand Patilki watan, and for a permanent injunction restraining defendants Nos. 1 and 2 from recovering from plaintiffs more than assessment or judi payable on watan lands and for costs of the suit.
2. It is stated in the plaint that prior to 1812 four persons of defendant No. 2's family had owned half the Patilki watan of the village of Nagwand. But they left Nagwand for good and began to live in Mysore territory. Their watan lands remained uncultivated and thus lay fallow. Judi to the then Government remained unpaid by them. In these circumstances, the then Government, with a view to realize the judi due to it upon those lands, granted the Patilki watan to one Mudkansrowda the ancestor of the present plaintiffs, hereditarily at a reduced rate of judi for seven years. This Mudkangowda represented to the then Government that the original house of the Patilki watan was situated near Mahars' houses and lie being a Lingayat could not live in it. Upon this the Government were pleased to grant, in lieu of the house, another house and open space to Mudkangowda, and also granted a Kowlnama for lands, i.e., deed of grant in 1812, in favour of Mudkangowda. So, by the Kowlnama of 1812, the family of the present plaintiffs acquired half the Gowdki watan of Nagwand village, and similarly the family of defendant No. 2 ceased to be Watandars of the same watan. Since then the plaintiffs' family as Watandars of the Nagwand Gowdki watan had been in possession and enjoyment of the Patilki watan house and Patilki watan lands R Survey Nos. 94 and 95 of Nagwand village uptil now. In 1907, the present defendant No. 2 moved the revenue authorities to restore these watan lands to her under the Watan Act, but ultimately the Prant Officer rejected her application by an order, dated September 19, 1907. In 1919, the present defendant No. 2 again moved the revenue authorities, and finally the Commissioner S. D. passed, on May 17, 1921, an order that he did not consider it, necessary to cancel the Prant Officer's order, dated September 19, 1907. But, again, on July 24,1921, defendant No. 2, by an application, moved the Commissioner S. D, to revise his own order dated May 17, 1921, and, on November 30, 1921, the Commissioner passed the order that, under Section 8(2) of the Watan Act, the Collector should pass such order as he thought fit regarding the rent to be paid on R. Survey Nos. 94 and 95 of Nagwand village by plaintiffs to defendant No. 2.The Collector, accordingly, passed, on March 3, 1922, the order that the fair rent of Rs. 280 should be recovered from the plaintiffs and paid to defendant No. 2 so long as the plaintiffs continued to be in possession of these lands. Upon this the plaintiffs appealed to the Local Government, but it refused to interfere. The plaintiffs prayed (a) that the Court should declare that the plaintiffs are Watandars of the Nagwand Patilki watan, and that defendant No. 2 is not Watandar of the same watan; and (b) that the Court should issue a permanent injunction to defendants Nos. 1 and 2 that they should not recover from the plaintiffs more than assessment or judi payable on watan lands R. Survey Nos. 94 and 9a of Nagwand village.
3. Defendant No. 1 pleaded that the Court had no jurisdiction to take cognizance of the suit, under Section 4 (a) of the Bombay Revenue Jurisdiction Act, 1876; that the suit was barred by limitation under Article 120 of the Indian Limitation Act; that the cause of action arose in 18S0 when the request of the plaintiffs' predecessor-in-title to be declared a Watandar was rejected; that it also arose in 1870 when, during an inquiry held for the determination of the custom of the watan as to service and the appointment of a representative Watandar, it was decided that the plaintiffs' predecessor-in-title was not a representative Watandar but held the watan land as tenant only; that the allegation in paragraph 7 of the plaint that the cause of action arose in 1921 was not true; that the allegations in paragraphs and 2 of the plaint that in 1812 the Patilki watan land in dispute was granted to the plaintiffs' ancestor was not true and was denied; that it was also denied that, in 1812 or at any time thereafter, the ancestor of defendant No. 2 ceased to be the Watandar or that the plaintiffs' ancestor was appointed and recognised as a Watandar of the Patilki watan in dispute.
4. It was also pleaded that the plaintiffs' ancestors were throughout in possession of the land as the tenants of defendant No. 2's ancestors to whom the land in dispute was assigned as remuneration for the Patilki office of Nagwand.
5. The District Judge held that the second relief claimed for an injunction clearly fell within the provisions of the Bombay Revenue Jurisdiction Act. It was a suit to set aside or avoid the order passed by the Collector, on March 3, 1922, in obedience to the Commissioner's request of November 30, 1921. That order was expressly made under Section 9 (2) of the Watan Act. It was made by an officer duly authorized in that behalf and such a suit was within the prohibition of Section 4(a)(3) of the Bombay Revenue Jurisdiction Act.
6. With regard to the first relief, the Judge thought that a more, difficult question was raised. He came to the conclusion that 'when an order is made on a specific decision, such as ia contained in Exhibit 36, that a person is not a Watandar, a person seeking to obtain a declaration from a civil Court that the decision is bad certainly seeks to avoid that order,' and; accordingly the suit was dismissed with costs.
7. The plaintiffs have appealed. Pending the appeal Sanava died and one Rangangowis was placed on the record as her heir. But we are told now that Rangangowda does not claim to be the heir of Sanava, and, if it were necessary, the appeal would have to be adjourned for the purpose of amending the record, But if the District Judge was right in dismissing the suit for want of jurisdiction, then there would be no necessity for adjourning the appeal.
8. It has been argued that the order made by the Commissioner, on November 30, 1921, to the Collector was ultra vires, as he had no power to revise his own order of May 17, 1921. But it would appear from the record of the proceedings before the Commissioner on that date, that they were ex parte without hearing Sanava, and the Commissioner admitted that as Sanava had not been given full opportunity of representing her case, he reconsidered the matter on November 30, 1921, after hearing pleaders for Sanava and for respondents, the present appellants.
9. We do not think that those proceedings were ultra vires. It is a general principle that a party against whom an order ex parte is made is entitled to have the matter decided after arguments on both sides have been heard, so that the order passed by the Commissioner on November 30, 1921, was not, properly speaking, an order passed in revision, but an order properly made after hearing both the parties, one of whom had not been heard on the previous occasion, The Commissioner has given his reasons for holding that the present appellants were not Watan-dars. He referred particularly to the Kararpatra of 1866 by which the respondents' predecessor agreed to restore the whole of the watan land to the Watandars excepting one field which he was to retain as tenant for five years, i. e,, till 1871. That field is identical with the two Survey Numbers now in suit.
10. It has, therefore, been held by the Commissioner that there had been an alienation which showed that the appellants were not Watandars, and had never attained to any higher title to the said land than that of tenants.
11. We agree with the District Judge that this Court has no jurisdiction to set aside orders made under Sections 11 and 11A and Section 9 (2) of the Watan Act.
12. But it is contended by the plaintiff's that they would be entitled to ask the Court to grant them the declaration they asked for in the plaint, that they, and not defendant No. 2, are the Watandars of the watan in question, as against defendant No.2, leaving out of consideration defendant No. 1. In the first place, that would be striking out the main relief asked for in the plaint against both the defendants, and would also entirely change the character of the suit. Secondly, as the suit has been dismissed for want of jurisdiction, that does not bar the plaintiffs from bringing any other suit, which they may be advised, against the heirs of the original defandant No. 2. We say nothing with regard to the question whether such a suit would lie, But we think that, as long as the Secretary of State is a party to the suit, such a declaration could not be granted.
13. In Phadnis' Vatan Act (3rd Edn.) at p. 461, reference is made to an unreported decision in Sagunappa v. Bhau (1920) F.A. No. 269 of 1918 in which Fawcett J. said :-
In my opinion, when an order is baaed on a specific decision that a person is not a Watandar, a person seeking to obtain a declaration from a Civil Court that that decision is bad. certainly seeks to avoid that order,...Accordingly, the case clearly falls within the 3rd paragraph of Clause (a) of Section 4 (of the Revenue Jurisdiction Act) Also so far as the suit seeks relief against Government relating to Watan land it falls within the that paragraph of that clause-We were referred...to the decision in Ramrao v. The Secretary of State (1896) P.J. 666It was there argued that the Secretary of State was merely a formal party and that it was merely a contest between two private parties. No doubt, if that is the case in a auit, then the 3rd paragraph of Clause (a) of b. 4,.,does not come in the way of the plaintiff; and,... the decisions of this Court that a Civil Court has jurisdiction to entertain a suit to be declared a Watandar are really confined to cases of that class. In the leading case of Ramchandra Dabhlokar v. Anant Sat Shenvi I.L.R. (1883) 8 Bom. 25 there had apparently been no order against the plaintiff passed fay the Collector and it was merely a private dispute between the plaintiff and certain persons who denied plaintiff's status as a Watandar.
14. We agree with the conclusions arrived at by the learned Judges in that case.
15. Here the Commissioner has come to the conclusion that the appellants are not Watandars, and if we were to deal with the case as if the Secretary of State were not a party, and there was merely a private dispute between the appellants and defendant No. 2 as to whether the plaintiffs were Watandars, we should be in effect passing judgment on the decision of the Commissioner, and oven if we were of opinion that the plaintiffs were Watandara, our decision would be of no value whatever to the plaintiffs as against Government.
16. We see no reason, therefore, why we should alter the character of the suit which is, we think, beyond the jurisdiction of the Court, in order to enable the plaintiffs to try and obtain what, as far as we can see, would be an entirely useless declaration. If, as a matter of fact, they are able to prove that the Kararpatra of 1866 was a forgery, then that might be of some assistance to them in prosecuting their claim for the declaration they ask for against defendant No. 2. That is a matter, however, with which we are not concerned in this suit. Therefore, we dismiss the appeal with costs. Two sets of costs.