Straight, and Tyrrell, JJ.
1. In this case the plaintiffs claim to have paid to them a sum of Rs. 301-8-3 for three years' arrears due to them from the zamindars, defendants, by a declaration of their right thereto, as the representatives of the original assignee from Government, of the revenue payable in respect of certain land, The amount of this revenue was determined at the settlement, and by paragraph 12 of the wajib-ul-arz the zamindars promised to pay it. The Munsif decreed the claim, and the learned Judge, in appeal by the defendants, decided all the pleas against them, but being of opinion that the suit was barred by the provisions of Section 4 of the Pensions Act (XXIII of 1871), the plaintiffs not having obtained the sanction required by that section, decreed the appeal and dismissed the suit. The propriety of this decision is the sole point raised in second appeal.
2. Now it is the well-understood rule that the Civil Courts have jurisdiction to try all suits of a civil nature, the cognizance whereof is not prohibited by any positive enactment, and upon the face of the plaint in the present case it is obvious that the claim of the plaintiffs would ordinarily fall within their jurisdiction. It must further be taken as conceded that the Government has not only recognised the right asserted by the plaintiffs by the action of the officer who conducted the settlement, but at the present moment admits them; that the zamindars themselves undertook to pay the revenue assessed to the plaintiffs, and that the defendants, who stand in the shoes of those zamindars, are under the same liability, but have repudiated it as alleged by the plaintiffs. There is obviously, therefore, no question between the plaintiffs and the Government, but their only dispute is with the defendants, who have denied their right. We have then to examine Act XXIII of 1871 to see if it contains any prohibition to such a dispute being made the subject of determination by a Civil Court, and in doing so it is appropriate to bear in mind what was said by Westropp, C. J., in Ravji Mandlik v. Dadaji Desai, I.L.R., 1 Bom., 523, that 'an enactment of a character so arbitrary as Act XXIII of 1871, which purports to deprive the subject of his right to resort to the ordinary courts of justice for relief in certain cases, ought to be construed strictly, and the court should not extend its operation further than the language of the Legislature requires.' (See also Gurushidgavda v. Budragavdati) I. L. R., 1 Bom., 537. It must be admitted that the moneys claimed by the plaintiffs are a grant of land revenue, which by Section 3 of the Act in question 'includes any thing payable on the part of Government in respect of any right,' &c;, and that prima facie they would come within the prohibitions of Section 4 and the accompanying provision of Sections 5 and 6, and the suit would accordingly be barred, no sanction confessedly having been obtained to its institution. It remains then to be seen whether there is any saving clause in the Act to relieve the plaintiffs from the difficulty, and it is obvious that if Section 9 does not help them, there is no other provision that will. It is to be observed in regard to Section 6 that, while a Civil Court may take cognizance of claims to money payable on the part of Government in respect of a right upon receiving a certificate, 'it shall not make any order or decree in any suit whatever by which the liability of Government to pay any such pension or grant as aforesaid is affected directly or indirectly.'
3. Now it seems to us that taking Section 6 in contradistinction to Section 9, the kind of claim which is contemplated by the former section is one where, a pension or grant being admitted by Government, there are several claimants to the right to receive it, in whole or in part, the merits of whose respective claims may well be adjudicated upon by a Civil Court, for the purpose of informing Government as to the proper person or persons, to whom, so long as such pension or grant is continued, it shall be paid, though such adjudication in no way binds Government to continue to pay it. In such a suit it can readily be seen why Government should be regarded as having an interest in the sense that, being ready and willing to pay the pension or grant, it desires to pay it to the right person. Beading Sections 5 and 6 together, they seem to us to provide for two alternative methods of treatment for claims of the kind we have mentioned: first, by application to the Collector and by an order made by him, or, if he thinks it more suitable, by a trial of the claim in a Civil Court on his certificate. In the present case, however, the existence of the grant, the right to which is claimed by the plaintiffs, and the plaintiffs' right thereto, are not only not denied by Government, but, on the contrary, they are admitted, and the matter simply stands thus, that the plaintiffs, as the assignees of the Government revenue payable on certain land, whose right thereto is admitted by Government, are primarily suing the defendants, who admittedly are bound to pay such revenue to somebody, for arrears due to them as such assignees. Were the suit limited to this relief merely, it would, under the terms of Section 93 of the Rent Act, lie exclusively in the Revenue Court. But the defendants, not claiming that the land is revenue-free, have denied the title of the plaintiffs as assignees, and have thus driven them into a Civil Court to establish their title, not as against counter-claimants to the assignees' right, but as against persons who withhold revenue, which is incontestibly payable by them, to others, whose right thereto is admitted by Government. It seems to us that such a suit only lies in the Civil Court, that it is one within the spirit of Section 9, and, as such, is saved from the prohibition of Section A, and that the learned Judge's view was erroneous, and that the suit to which the ruling of the Bombay Court in Babaji Hari v. Rajaram Ballab I. L. R., 1 Bom., 75, upon which he relied applies, is distinguishable from the present in the particulars to which we have referred. We decree the appeal and, reversing the decree of the Judge, restore that' of the first Court. The plaintiffs to have their costs in all Courts.