Norman Macleod, Kt., C.J.
1. The plaintiffs prayed for a decree for a declaration of their absolute right over the respective lands, as stated in the schedule to the plaint, to the exclusion of the defendants other than defendant No. 1, that the orders of the defendant No. 1's officers were not binding on the plaintiffs, and that the second defendant was entitled only to receive the assessment from the plaintiffs in respect of the said lands. The plaintiff claimed to be occupants. But in 1914, the Collector, at the instance of the second defendant, made an order that the lands should be turned and restored to him as the holder of a Sanad granted to his predecessors in 1841. Issues were raised, but the suit was dismissed by the learned District, Judge on his finding on issue No. 1 : Is the suit barred under Section 4(a) of the Bombay Revenue Jurisdiction Act? No doubt the plaintiffs would have to get the Collector's order set aside in order to get possession of the lands which they claimed to hold as occupants, and clearly it would be a suit to set aside or avoid an order under Bombay Act III of 1874 passed by an officer of Government duly authorised. Accordingly the jurisdiction of the civil Courts would be ousted unless the plaintiffs could show that with regard to their case the Legislature had no power to oust the jurisdiction of the civil Courts. The plaintiffs relied in the Court below upon the decision in Moment's case (1912) 15 Bom. L.R. 27. and contended that the whole of the Bombay Revenue Jurisdiction Act was ultra vires. I do not think the real effect of the decision in Moment's case was appreciated in the lower Court. All that was decided in that case was that if a party had a right of action against the East India Company, that right could not be taken away by any Act of the Indian Legislature after the possessions of the Company were vested in the Crown. The question must arise, whenever this argument is raised, whether the particular suit was a suit which could have been filed against the East India Company. If then, the plaintiffs are the successors-in-title of the cultivators who were in occupation of the suit lands in 1841 when the Sanad was granted, and if those cultivators at that time would have had a right of action against the East India Company, in the event of their being dispossessed, to assert their rights as occupants, then it would appear that any order made at the present time by Government dispossessing the successors of those occupants could be the subject-matter of a suit in the civil Courts, and no Act of the Legislature could oust the jurisdiction of the civil Courts.
2. The question what was the position of the then occupants of the land in 1841 has never been considered in the Court below. It would appear that before the Sanad was granted the Government intended that a condition should be annexed to the Sanad that the grantee would recognise the rights of the existing occupants, but when the Sanad came to be drawn up there was no condition attached to it, and clearly there is a grant of the land, and of the produce thereof, and it was the intention of Government to put the grantee in actual possession of the land. The fact that after the Sanad was granted the cultivators appear to have remained in possession paying assessment until 1914, would not affect the question what was actually granted to the predecessors of defendant No. 2. The case, therefore, must be remanded to the lower Court to enable the plaintiffs to have an opportunity of showing that their predecessors-in-title were in occupation of the suit land at the time of the grant of the Sanad, and that they had the right to remain in occupation as long as they paid assessment, and that if they had been dispossessed they would have had a right to file a suit against the East India Company. If the then cultivators had that right, then we should be in a position to decide whether that right to sue still remains with the present plaintiffs in spite of the order of the Collector in 1914. The issue we send down therefore, will be this:- Whether the individuals cultivating the suit lands in 1841 had such rights of occupancy that if dispossessed by the East India Company, they would have had a right to sue the Company on account of such dispossession? Finding to be returned in two months.
3. I agree.