1. The plaintiff in this case sues for a declaration that the order of the Collector, dated 2nd June 1914, directing that he should pay certain rent on the lands in question or that the lands should be forfeited is illegal and ultra vires.
2. The defendant No. 1 (the Secretary of State for India in Council) and defendants Nos. 2 and 3 in whose favour the said order was made contended in the trial Court that the jurisdiction of the civil Courts was ousted by Section 4(a) of the Bombay Revenue Jurisdiction Act ( X of 1876 ) and that the order was justified by the Rules framed by the Government in 1908 in exercise of the powers conferred by Sections 8 and 10, Bom. Act XI of 1852 and Act VII of 1863, Section 2, Clause (3), regarding the resumption and continuance of service lands.
3. The trial Court held that the jurisdiction of the civil Court was not ousted, that the rules did not justify the order of the Collector, and that he was entitled only to levy the full assessment. It accordingly declared that the Collector was not entitled to recover from the plaintiff any sum exceeding the full assessment of the lands in suit and ordered a refund of the sum recovered in excess of the full assessment in pursuance of the Collector's order.
4. The defendant No. 1 acquiesced in this view before the lower appellate Court; and the contentions raised by defendant No. 3 as to the validity of the rules in relation to the service lands in question and as to jurisdiction under Section 4 (a), paragraph 3 were disallowed by the lower appellate Court. In the result the decree of the trial Court was confirmed.
5. In the appeal before us defendant No. 1 has not raised any objection to the decree appealed from. On behalf of defendant No. 3, who is the appellant here, it is urged that the jurisdiction of the civil Courts, is ousted under Section 4(a), paragraph 1. The points raised in the lower appellate Court have not been urged before us on his behalf; and it is not suggested now that the Collector's order is justified beyond the extent recognised by the lower Courts or that the jurisdiction of the civil Courts is ousted under Section 4(a), paragraph 3. On behalf of the plaintiff, no objection is taken to the decree so far as it allows the levy of full assessment against him. Thus in this appeal we are not concerned with the merits of the decree passed by the lower Courts, but only with the question of jurisdiction raised by defendant No. 3.
6. It is urged that the claim relates to property appertaining to the hereditary office of a Kazi, which is one of the offices expressly recognised under Act XI of 1852, Schedule B, Rule 8, paragraph 1, or which is the office of a village officer within the meaning of Section 4(a), paragraph 1, and that no civil Court can exercise jurisdiction in relation thereto. But the provision relied upon is subject to the exceptions appearing in the same section. As indicated by the proviso Clause (k), if any person claim to hold wholly or partially exempt from payment of land revenue under an adjudication duly passed by a competent officer under Act XI of 1852 which declares the particular property in dispute to be exempt, such claim shall be cognisable by civil Courts. In the present case the plaintiff relies upon a decision of the Assistant Inam Commissioner, dated 31st December 1852 and claims in effect that the land in question is wholly exempt from assessment. The Sanad subsequently granted in 1867 is only a formal expression of that decision. Thus the plaintiff's claim is clearly within the scope of the proviso and cognisable by civil Courts.
7. It may be that on the merits he may not be able to substantiate his claim fully or at all: but that does not affect the jurisdiction to consider his claim to held the land wholly free under the decision of the Inam Commissioner.
8. It is contended, however, that the plaintiff claims as an alienee and not under the person upon whom the Inam was conferred under the decision of the Inam Commissioner and that the exception cannot apply to him. The proviso in terms applies to any person claiming exemption from land revenue under an adjudication duly passed by a competent officer under Act XI of 1852. I do not see how an alienee can be treated as being outside the scope of the provision. Further the decision of the Inam Commissioner expressly saves the rights of other persons, whose names may not appear in the decision, and it is made clear that the decision should be taken to mean how long the land is to be continued free from assessment.
9. In this view of the matter it is not necessary to consider the effect of Section 5(a) which has been relied upon by the plaintiff as saving the jurisdiction of the civil Courts in a suit like the present. The plaintiff's contention is that his suit is against Government to contest the amount claimed and recovered as land revenue on the ground that such amount is in excess of the amount authorized in that behalf by Government. He further contends that the amount claimed and recovered under the Collector's order is land-revenue within the meaning of the Bombay Revenue Jurisdiction Act, and that it is in excess of the amount authorised by Government under Act XI of 1S52 or under the Sanad. On the other side it is contended that the amount must be deemed to have been authorised under the rules framed by the Government in 1908 and that Section 5(a) cannot save the jurisdiction of the civil Courts. The plaintiff's contention is not without force. But as I have said it is not necessary to decide this question. The only point raised on behalf of the appellant as to the jurisdiction of the Court fails.
10. The question relating to the meaning of 'resumption' of an Inam under Act XI of 1852 in respect of service lands pertaining to any hereditary office useful to the village community as distinguished from the State has been incidentally argued. But it does not affect the point of jurisdiction in any way. It is really a point touching the merits of the Collector's order; and neither party has objected to the decree under appeal on merits. It is not, therefore, necessary to express any opinion about it.
11. The result is that this appeal is dismissed and the decree of the lower appellate Court confirmed.
12. The appellant to pay the costs of respondent No. 2. Respondent No. 1 to bear his own costs.
13. I agree.