1. The plaintiff sues for a declaration that he is the full owner of the lands in suit and of the khatibgiri right appertaining to them, for an injunction prohibiting the defendants from recovering Rs. 450 annually from him and for a refund of Rs. 750 recovered by the defendants.
2. It is alleged that Fakrudin valad Mahomed Kasimsaheb was originally the khatib in Hangal and that as such he held certain lands in Inam. These lands were allowed to remain with him in 1856 by the Inam Commissioner under Act XI of 1852. Under circumstances detailed in the plaint the lands and the Khatibgiri came to be alienated to the plaintiff's father in 1864 by Fakruddin's daughter-in-law Pachhabi. Thereafter the plaintiff claims to have enjoyed the lands free from assessment and performed the services as khatib until the Commissioner (Southern Division) made an order on the 23rd September 1911 directing that the full economic rent be recovered from the present plaintiff and be paid to Mahomed Hanif (defendant No. 3) as long as he officiated as Khatib on behalf of the Inamdar. The Commissioner made this order under the rules framed by the Government in 1908 under Act XI of 1852 and Bombay Act VII of 1803, Section 2, Clause (3) and their general powers. The plaintiff now claims reliefs in this suit on the footing that the said order of the Commissioner is invalid and not binding upon him and that the alienation in favour of his father is good. The plaintiff also claims as an heir to Pachhabi.
3. It is not necessary to note all the defences, which may be gathered from the several issues framed by the lower Court, Three issues out of them were taken up as preliminary issues. Two out of these three issues were dropped as having been unnecessarily framed. The only preliminary issue considered and decided by the lower Court relates to the jurisdiction of the Court to entertain the suit. The lower Court held that the suit was barred by Section 4(a) of the Bombay Revenue Jurisdiction Act, and accordingly dismissed the suit, The plaintiff has appealed to this Court and has urged in support of the appeal that the jurisdiction of the civil Courts is not ousted by Section 4(a) and that the suit is covered by the exception indicated in the proviso, Clause (k) of Section 4 and is also saved by Section 5(a) and (b). On behalf of the defendants it has been contended that the jurisdiction of the Courts is ousted under the first, second and fourth paragraphs of Section 4(a) and that Clause (b) does not apply as the plaintiff is only an alienee and further that the claim relating to the Khatibgiri service is not covered by the proviso. Further it is contended that Section 5(a) does not apply as the amount ordered by the Commissioner to be recovered as the economic rent is really the amount authorized by the Government and that therefore there is no excess such as is contemplated in the first part of Section 5(a). Section 5(b), it is urged, cannot apply to the present suit as it relates not merely to a claim between private parties but to a claim against Government.
4. In the present case there can be no doubt that in 1856 the lands in question were continued as the permanent official emolument of the hereditary office of a Khatib in Inam under the decision of the Inam Commissioner. The office of Khatib, though not expressly mentioned in Act XI of 1852, Schedule B, Rule 8, Clause 1, is one of the type contemplated by that clause, and not by the 5th provision of that rule. The plaintiff no doubt claims the right to officiate as a Khatib; but his suit in substance is to establish his right to hold the land free from assessment. It is common ground that the Hereditary Offices Act (III of 1874) does not apply to this office. The fact that the Commissioner has acted under the rules framed by the Government under Act XI of 1852 also confirms the view that Act III of 1874 has no application. The claim may be treated as relating to property appertaining to the hereditary office of Khatib recognized under Act XI of 1852 under the first paragraph or in part as a claim to perform the duties of the office under the second paragraph or as relating to lands declared by Government or any officer duly authorized in that behalf to be held for service under the last paragraph of Section 4 (a) of Act X of 1876. These provisions are, however, subject to the exceptions mentioned in the section. The plaintiff's claim to hold the land wholly or partially free from payment of land revenue under an adjudication duly passed by a competent officer under Act XI of 1852 is cognizable in the civil Courts under clause (k) of the proviso to the same section. I do not think that the circumstance that he claims as an alienee takes the case out of the proviso. It is not necessary to consider the further argument based on Section 5(a), though I am by no means satisfied that the present suit is not saved under that clause so far as it seeks to get rid of the order of the Commissioner as to the economic rent. The case is very similar to the second appeal which we have just decided; and the point of jurisdiction here must be decided in the same way.
5. The claim to perform the service as Khatib apart from the claim to hold the lands exempt from the payment of land revenue stands on a somewhat different footing. That claim is covered in form by the first part of the second paragraph of Section 4(a) and may be in form not cognizable by the civil Court; but in substance that part of the claim is a matter between private parties. The suit is no doubt against Government and properly so as regards the other reliefs. But this relief by itself could well be treated as falling under Section 5 (b). Besides it is a prayer of secondary importance in the suit, the principal thing being the claim as to lands being exempt from the payment of land revenue. It may be that on the merits as to which I express no opinion, the plaintiff may fail to establish that he is entitled to officiate as a Khatib; but the claim is cognizable by civil Courts.
6. Several other questions have been argued in this appeal as bearing on the question of jurisdiction. But they are all questions which may affect the merits of the plaintiff's claim and will have to be considered by the lower Court when it comes to deal with the case on the merits. For instance it has been argued that the rules of 1908 under which the Commissioner has acted are not justified by Act XI of 1852, Schedule B, Rule 8, Clause 5 so far as they are sought to be made applicable to an hereditary office, not falling under the said Clause 5. It is further argued that the Sanad relating to the land shows that the land is inalienable and that what is granted is land and that what can be resumed is the land and not merely the assessment and further that the Government have the right to determine as to who shall perform the service of Khatib. It is also argued that whatever may be the powers of Government with regard to the office, they can only resume what they granted in Inam under Act XI of 1852, that is, they may levy full assessment, but they cannot resume the possession of the lands nor can they levy the full economic rent. But these are all questions which touch the merits of the case and do not affect in any way the point with which we are concerned at present.
7. I would, therefore, reverse the decree of the lower Court and remand the suit to that Court for disposal according to law.
8. Costs up to date to be costs in the suit. Two sets of costs for respondents (one for respondent No. 1 and the other for respondents Nos. 2 and 3 ).
9. I agree.