1. In my opinion this appeal fails. The members of the Court are not entirely agreed about their way of looking at it, although this disagreement is not one of substance so much as of form. About one point we entirely agree, namely, that we both of us object, indeed resent very strongly, being called upon to decide this point of law without any finding at all. It would have been mush better if the Munsif, and indeed all Munsifs and all Trial Courts, were to do what the Munsif ought to have done in this case, devote himself to the trial of the facts and decide all the issues, instead of proceeding to write essays on points of law. Assumed statements of fast have not been agreed to by the parties. Of course if the parties agree to a, statement of fast so that such fact is binding upon them in the suit as if it were established by evidence, then the question of law become a ripe for decision. Most questions in legal proceedings, and in the difficult business of settling disputes of parties who are at variance with one another about the fasts, are mixed questions of fact and law, and it is only when the facts are irrevocably established, that one can apply the law. On the other hand, and it is here where I differ from my brother, it seems to me that certain decisions are forced upon us, that is to say, we cannot deal with this appeal without taking a definite view of certain principles of law, and as I feel clear about them, I have no hesitation in expressing my opinion, and if the result is to prevent the appellant before us to-day from raising them hereafter in this suit or elsewhere, all I can say is that that is the penalty he has to pay for what seems to me an idle attempt by this appeal to burke an inquiry into fasts. I entirely agree with the main part of the learned Judge's judgment, and I am content to adopt as part of my judgment, the final passage beginning with the words;---'it is true, that a tenant, who has held the same land continuously for a period of twelve years, shall have the right of occupancy created in his favour in such land, but presumably it means a tenant to whom the landlord rightfully leases the land possessed by him.
In this ease, the plaintiff alleges, that the, landholder obtained possession of the land fraudulently by colluding with the pairokars of the guardian of the plaintiff. The possesion was, therefore, not legal. The tenant having obtained from the land-holder possession, which in its nature was a fraudulent one, did not acquire any rights of occupancy or otherwise by holding the land continuously for twelve years.
This is, however, denied by the other side, who allege, that once the Tenancy Act creates occupancy rights in a tenant, no Court can pass an order depriving the tenant of those rights.
It is a settled law, that a minor plaintiff is as much bound by a decree in a case and by all the proceedings following it, as a person of full age; and cannot, nor can his representatives, open the proceedings unless on the ground of gross lashes, or of the fraud and collusion, whish, when established, will undoubtedly annul the proceedings of the Courts of Justice as much as any other transaction. Therefore, a decree, whether it is of a Civil or Rant Court, can, in my opinion, be impeached, where there is a gross negligence by the guardian in the conduct of the minor's suit.
The question that I have to decide is, whether the plaintiff, who was then a minor and against whom a decree was passed under Section 59 of the Tenancy Act, is to suffer by any negligence or want of knowledge on the part of his guardian. I am of opinion that he cannot be called upon to suffer. The proposition that a minor of tender years may have his whole fortune wreaked by the neglect of his guardian is so monstrous, that I for one can pay no attention to it. A minor is entitled to have a guardian, who must be diligent, and who must protect his interests. It is, therefore, clear, that gross negligence on the part of his guardian would entitle a minor to obtain the avoidance of proceedings undertaken on his behalf. A minor, there fore, when he comes of age, can sue in his own name for anything, that his guardian, either through ignorance, or negligence, has omitted to prosecute, and no law would prevent him from so suing: because if it were otherwise, no minor could be safe; and I do not see how Mahadeo Prasad plaintiff, after he attained his majority, is barred from claiming the property, of which, owing to the pegligence of his guardian, he bad been deprived. Once the minor establishes the facts alleged in his plaint, viz., that the Zamindar colluded with the pairokars, or his guardian, and made them absent themselves from appearing before the Rant Court on the 18th of December 1906, and took steps that the certified copy of the application made to the Judge, might not be filed, and thus obtained the ejectment order, the proceedings ejecting the plaintiff, must be deemed to have been vitiated, and the plaintiff entitled to restitution of the property by avoidance of the proceedings of the 18th of December 1906, and those that followed it subsequently.
It was, therefore, of the utmost import. ance, that the learned Munsif should have gone into the merits.' I merely observe that I have reason to know that a portion of that extratt in the middle with reference to wreaking the fortune of a minor, is a verbatim extract from a judgment to be found in Hoghton, Inre, Hoghton v. Fiddey (1874) 18 Eq 573 : 43 L. J. Ch, 758 : 22 W. R. 854. It is none the worse for that, but it is not merely the opinion of the learned Judge. Mr. Peary Lal Banerji who has ably argued his ease, as usual, in all its bearings, has strongly pressed upon us that the suit, especially as against him, offends against the provisions of the Tenancy Act, and that a Civil Court has no jurisdiction to declare proceedings in a Revenue Court invalid even on the ground of fraud. I think it is too late to raise this question in this Court. It seems to me to be well settled. Certainly a Civil Court has no jurisdiction to set aside the proceedings in a Revenue Court, but I have no doubt that it has jurisdiction to declare that a course of conduct which eventuates in some decree or order in the Revenue Court or on the revenue side, was fraudulently devised or was the result of some wicked conspiracy to injure the plaintiff and deprive him of his rights behind his back and without his knowledge. This seems to me to be clear from the judgment of the Chief Justice in the case of Rai Krishen Chand v. Mahadeo Singh A. W. N. (1901) 49., commented upon and followed by Mr. Justice Banerji in the case of Uman Shankar v. Bhagwan Din 8 Incl. Cas. 568 : 7 A. L. J. 1064., and given effect to in the judgment of the Court of whish I was a member in the case of Raghunandan Ahir v. Sheonandan Ahir (4) 49 Ind. Cas. 806 41 A. 182 : 17 A. L. J. 97., The question seems to me to be clearly one of fundamental principle which really admits of very little discussion. The whole of the argument on behalf of the appellant before us today is based upon a fallacy. If fraud is established, there was no tenancy in existence at all to which the provisions of the Tenancy Act would apply, and the argument that the Civil Court in entertaining such a suit, is usurping the functions of the Revenue Court in a matter which has been exclusively entrusted to the Revenue Court by the, Legislature, seems to me to be based upon this fallacy. It may be that the two jurisdictions are mutually exclusive. I take it that a Revenue Court could hear an application to review its own proceedings on the basis of new matter analogous to the new provisions of the Code of Civil Procedure. I express no opinion as to whether these provisions are applicable to the proceedings in a Ravenue Court. That is their business. Presumably, if a Revenue Court finds that it has been deceived by a fraudulent knave who has brought dishonest proceedings in order to obtain orders against an ignorant and helpless minor, it might, on the new facts being brought to its notice, re open its own proceedings in the exercise of its inherent powers to do justice in the matters entrusted to it. As to this I am unable to express any opinion. It is a master for the Revenue Court. But that Court certainly has no jurisdiction to grant damages in an action for deceit, and I can imagine no possible ground either in law or equity or common sense, upon which, in such a case as occurred in Raghunandan Ahir v. Sheo Nandn Ahir (4),. or in this ease, if a person has really been deceived, he cannot sue in a Civil Court to establish the facts in his own favour and to obtain a declaration of the assertion of his true rights to which he has succeeded or which he has inherited. He claims to be re pined in the position which he would have occupied if it had not been for such proceedings, and asks for damages which, in the use of land, would necessarily take the form of mesne profits as against those who have deceived him, and who have enjoyed the land and the profits thereof, and also asks to be restored to the possession of the land of which he has been deprived. I cannot imagine that in such a casa an action would be, to use the old word, demurrable, even although it happens to include matters in respect of which the Revenue Court itself might also grant relief in another proceeding. As we are seized of the matter, I merely mention for the possible assistance of the parties and of the Courts who have to try this case, that it teams to me that the relief claimed in this suit by the plaint is not properly framed and is capable of very considerable improvement. A Civil Court cannot set aside the proceedings of a Ravenue Court, although it is possible that the learned gentleman who settled this plaint had a sort of hope, if not a belief, that it could. If it could, the Civil Courts, judging from some of the matters which come up here for decision, would be engaged in tittle else but hearing suits brought for the purpose of setting aside proceedings on the revenue side. Bat it might declare that the conduct of the parties to the suit in obtaining orders in their favour, no matter what they are, has been in fact fraudulent and that the plaintiff's interest, if he had any, in the, property in suit is not affected by any order so fraudulently obtained. It can, no doubt, declare that the plaintiff is entitled to possession of the property as owner, and can award damages for deceit or fraud. These are matters which the Trial Court will do well to consider in disposing of this suit if a proper application for amendment is made by any party. In my judgment, this order was right in substance and in form and the suit ought to go back to be determined by the First Court.
2. The appeal is dismissed with coats including fees on the higher scale.
3. Without giving a decided opinion on any of the abstract questions of law raised in the arguments, I am not prepared to say that the order of remand is so wrong that I should feel constrained to set it aside. It seems to me that the suit must be tried out and the facts found. The Court will then be in a position to come to a proper decision, I agree in the order passed.
By the Court.
4. The order of the Court is that this appeal is dismissed with coats in-cluding fees on the higher scale.