1. A preliminary objection has been taken in this appeal that the suit is not competent by reason of the plaintiff's failure to produce a certificate under the Pensions Act. The plaintiff sued to recover from the defendants the assessment of the two inam villages of Wadewadgi and Areshankar for the years 1921 to 1923 alleging that the plaintiff had acquired all the rights of the inamdar over the two villages, and exercised them in the capacity of inamdar, but defendant No. 1, the widow of Padappa, wrongfully recovered the revenue of the two villages for these two years, and hence she is liable to refund it, Both the Courts below have found that a certificate under the Pensions Act, Section 4, was necessary inasmuch as the right to collect the assessment is now claimed by the plaintiff and he wants to recover it from the defendants. The lower appellate Court held that :-
It is the plaintiff's case that although the suit is in the form of a suit to recover assessment paid to the plaintiff, it is not a pension, but a grant of the soil. That argument is contrary to the frame of suit. It is essentially a suit to recover the revenue of the inam villages. Section 4 applies to suits between private parties: Sadashiv v. Annabhat 28 Bom. L.R. 1477. In fact the question whether the inamdar is the grantee of the soil does not arise in this suit;. The bar under Section 4 does not spring from the nature of the grant, but from the relief claimed in the suit. If the suit bad been for a share in the soil granted, them Section 4 would not operate as a bar, vide Saydanmia v. Hasanmiya 22 Bom L.R. 959
2. The plaintiff made a second appeal, and this preliminary point, by the wish of the parties, should be decided first.
3. It has now been conceded in argument by the respondent that the grant is a grant of the soil, and the question which therefore arises is one which, so far as I know, is not governed by any ruling of this Court, viz., where the grant is a grant of the soil, whether a claim to recover assessment or land revenue of the village requires a certificate under Section 4 of the Pensions Act. We know that where the claim is one which regards land revenue only, where the grant is of the royal share of the revenue only, a certificate under the Pensions Act is necessary under Section 4, and where the grant is of the soil, a certificate is not necessary, but the cases where the grant is of the soil are all cases in which a share in the village was claimed. The view of the learned Judge of the lower appellate Court is that the bar under Section 4 does not spring from the nature of the grant, but from the relief claimed in the suit. In Saydanmia v. Hasanmiya : (1920)22BOMLR959 the grant was of the soil, and it was held that the claim to such a grant could be entertained by the civil Court in the absence of a certificate from the Collector underSection 6 of the Pensions Act. At p. 963 in the judgment of Macleod C.J. it is stated :-
In first appeal the learned District Judge held that a certificate was necessary. He said that the plaintiffs' claim in this case was limited to a share in the net land revenue of an Inam village as ascertained from the Tharavband and to a corresponding claim for arrears. The learned Judge seems to have overlooked the fact that the plaintiffs claimed a declaration that they were sharers to the extent of one anna four pies in the Jahagir village, and that the plaint was not confined to a mere request for a declaration that they were entitled to receive a share of the revenue from the village officers and nothing more.
4. This point is not further developed by the learned Chief Justice, although this might seem to imply that if the plaint was confined to a request for a declaration that they were entitled to receive a share of the revenue from the village officers a certificate would be necessary, and that the certificate was not necessary because the claim extended to a share of Rs. 0-1-4 in the jaghir village that is, Rs. 0-1-4 in the actual lands themselves, but in the judgment of Mr. Justice Heaton, at p. 964, it is said:-
According to the practice and rulings of this Court), if there is a grant of
the royal share of the revenue, and nothing more, and a claim arise in relation that grant, the claim cannot be heard by a civil Court without a certificate ; (sic) provided by Section 4 of the Pensions Act. But if there is a grant of (sic) other than merely the royal share of the revenue, or at any rate, if there is a grant of the village as a holding or estate, then a certificate under the Pensions Act is not necessary.
5. Section 4 of the Pensions Act, as it ousts the ordinary jurisdiction of the civil Courts, should be construed strictly. Although the present suit relates to the land revenue of these villages, the grant is not one of the land revenue only, but according to the respondent's admission, of the soil also, and therefore, strictly speaking, Section 4 would not apply, There is no direct authority on this point, but in view of the fact that the grant is of the soil, I think that the certificate is not necessary even though the relief claimed in the suit is with regard to the revenue, and I, therefore, decide the preliminary point accordingly.
[The judgment on merits delivered in the case is not material to this report.]