Skip to content


The Province of Orissa and anr. Vs. Durjodhan Das Gaontia and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa
Decided On
Case NumberSecond Appeal Nos. 157 and 166 of 1945
Judge
Reported inAIR1951Ori342
ActsTenancy Law; Central Provinces Tenancy Act, 1898 - Sections 56, 58 and 97; Specific Relief Act, 1877 - Sections 42; Code of Civil Procedure (CPC) , 1908 - Order 1, Rules 3 and 10; Limitation Act, 1908 - Schedule - Article 120
AppellantThe Province of Orissa and anr.
RespondentDurjodhan Das Gaontia and ors.
Appellant AdvocateAdv. General and ;B. Mohapatra, Adv.
Respondent AdvocateP.C. Chalterji, ;B.N. Das and ;B. Dube, Advs.
DispositionAppeal allowed
Cases ReferredAppa Bao v. Secy. of State
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....narasimhsm, j.1. these two appeals are by the defts. against tbe judgment of the subordinate judge of sambalpur reversing the judgment of the munsif of bargarh & decreeing the pltf's. suit for a declaration that they have the sole and exclusive right to appoint & dismiss a nariha who id a village servant & that the revenue authorities have no right to interfere in any way with the exercise of that right by the pltfs.2. pltf. 1 is the lambardar gaontia of mouza guclesira which is a gaontiahi village in sambalpur district. pltfs. 2 to 5 are the punches of the said village who are elected by the raiyats for the purpose of assisting the lambardar in the management of the village. in the last settlement deft, l was recorded as a nariha in respect of 9'42 acres of land which were held by him.....
Judgment:

Narasimhsm, J.

1. These two appeals are by the defts. against tbe judgment of the Subordinate Judge of Sambalpur reversing the judgment of the Munsif of Bargarh & decreeing the pltf's. suit for a declaration that they have the sole and exclusive right to appoint & dismiss a Nariha who id a village servant & that the revenue authorities have no right to interfere in any way with the exercise of that right by the pltfs.

2. Pltf. 1 is the Lambardar Gaontia of Mouza Guclesira which is a Gaontiahi village in Sambalpur district. Pltfs. 2 to 5 are the Punches of the said village who are elected by the raiyats for the purpose of assisting the Lambardar in the management of the village. In the last settlement deft, l was recorded as a Nariha in respect of 9'42 acres of land which were held by him rent, free (Ex. 2 a). In the wazib-ul-arz of the village (ex 2) it is recorded that the Nariha may be dismissed & deprived of his service lands by the Lambardar & the Punches for failure to render due service. The duties of a Nariha have not been dearly described in the wazib-ul-arz; but from the Settlement Reports of Dewar (l906) & Hamid (1926) it appears that a Naiiha is a village servant whose duties are those of a herdsman & water-carrier of the whole village. Sometime in 1930, the Lambardar & the Punches dismissed deft 1 from his poet as Nariha & appointed one Nitai Bhoi in his place. Then they applied to the S. D. O., Bargarb., under Schedule 8, C. P. Tenanoy Act for ejectment of deft. 1 from his holding & for putting the newly-appointed Nariha Kasiram Bagar in possession of the said holding. The S D. O. passed orders for ejecting deft. 1 & putting his successor in his place. (Ex. l). But on appeal the D. C of Sambalpur (Ex.. B-2) held that deft. 1 had been wrongfully dismissed by the Lambardar & the Punches & therefore,, set aside the eviction order of the 8. D. O. Against this order of the D. C. an appeal was preferred to the Comr. Mr. 0. L. Philip who by his order dated 11-7-82 (Ex. B-S) maintained the order of the D. C. & observed that the power of the Lambardar & the Punches to dismiss a Nariha waa not arbitrary but that it should be exercised reasonably & that before passing such an order there should be a dear finding as regards his specific neglect of duty & further the reasons for his dismissal should be formally recorded. Soon after the passing of this order by the Ct. the Lambardar & the Punches drew up proceedings & again dismissed deft. 1 on 31.10-32 This second order of dismissal was confirmed by the S. D. O, Bargarh but was set aside* by the J. G. Sambalpur. There was a further appeal to the Comr. Mr. E. S. Hoernle who by his order dated 16 9-33 (ex. B-4) maintained the order of the D. C. reinstating deft. 1. But at the same time he pointed out certain anomalies caused by the absence of clearly defined duties of the Nariha. & suggested that if the dispute should recur, a responsible officer should define not merely the theoretical but also the practical limits of his duties. On 15 2 34 the S. D. O, after visiting the village & persuading the parties to agree to settle their differences, passed an order enumerating the various duties to be performed by deft. 1 as Nariha. for the village community (Ex. i). The necessity for enumerating the various duties of a Nariha arose chiefly because there was a serious difference' of opinion between the Lambardar & the Punches on the one hand & deft. 1 on the other as to what were his 'due duties'. Against this order of the S. D. O. enumerating the duties of deft. 1 there' was an appeal to the D. C. who by his order dated 17-4-34 (Ex. 5) directed the S. D. O. to make furthat enquiries. The S. D. O. then held a further enquiry & passed orders on 23 6-34 (Ex. 6) clarifying the nature of the duties of the Nariha in certain respects. Against this order also there was an appeal to the Comr. who by his order dated 16-12-34 (Ex. B s) rejected the appeal as being not maintainable; but suggested to the D. C that some attempt should be made to settle the dispute by compromise. . Apparently subsequent attempts at compromise by the revenue authorities proved abortive & then the dispute between the parties was again taken to the Comr. who by his order dated 12-7-85 (Ex. 6) allowed deft. 1 to continue in the service holding as a Nariha. In this order also he made some observations regarding the anomalies arising out of the existence of these obsolete service holdings. It appears that he intended to visit the spot himself & settle the matter; but subsequently gave up the idea & the D. C. Sambalpur, by his order dated 30-6-37 (Ex. B-7) warned the Lambaidar Gaontia (pltf. l) from creating any trouble. The Gaontia again appealed to the Revenue Comr. Sir John Dain who by his order dated 18-8-38 (Ex. B-8) refused to interfere observing as follows :

'I am not prepared to pass any orders in this ease. The whole arrangement is an anachronism & no longer workable. The authorities can enforce a custom which is certain treasonable. The; cannot enforce a custom which the passage of time has rendered unreasonable. Nor can they, as one of my predecessors has suggested, modify that custom or attempt to adopt it to present conditions The whole of the Sambalpur law will come under review shortly, & no doubt provision will be made as has been made in C. P. to resume their service tenures when the service can no longer be rendered. Till then nothing can be done.'

3. I may at this stage further paint out that when the revenue authorities refused to evict deft. 1 from his holding or to put one Kasiram Bagar who who was appointed by the Lambardar & the Punches in his place, the sad Kasiram instituted a civil suit against deft. 1 in the Ct. of the Munsif of Bargarh But that suit was dismissed by the Munaif (ex. 0) on the ground that the civil Ct. had no jurisdiction to try the same.

4. In the present litigation the Lambardar & the Punches have impleaded the Nriha & the Province of Orissa as defts. & prayed for a declaration to the effect that their right to appoint & dismiss a Nariha who is a village servant was unfettered & that the revenue authorities have no right to interfere in the matter in any way. In support of this tight they had relied on the entries in the wazib-ul-arz which under Section 82, C. P. Land Revenue Act, 1881 should be presumed to be correct until the contrary is shown. There is absolutely no evidence on record to show that the entries in the wazib-ul-arz are incorrect. On the other hand, from the orders of the Come, dated 11-7-32 (ex. 1-a) & 16-9- 33 (Ex. 1-B) it is clear that the revenue authorites also recognised the right of the Lambardar & the Punches to dismiss a Nariha but they pointed out that this right should be exercised reasonably & that an arbitrary exercise of that right may be subject to interference by the revenue authorities

5. The main question for decision, therefore, is whether this view of the revenue authorities is correct or else whether the Lambardar & the Punohes have an absolutely unfettered right; to appoint & dismiss a Nariha. In considering this question it is necessary to discuss briefly some of the relevant provisions of the C. P. L. R. Act & the C. P. T. Act. In the C. P. L. R. Act there is absolutely no provision regarding the duties of any village servant other than the village watchmen. So far as the village watchman is concerned, express provisions were made in Schedule 47-A & in the rules framed thereunder. His duties were clearly prescribed & the power of appointing & dismissing him was vested only in the D. C. As regards other class of village servants the Act is entirely silent & it may be reasonably inferred that their duties & other conditions of service were left to be regulated by village customs which were embodied in the wazib ul arz prepared by the Settlement Officer Under Section 79 of that Act which by virtue of Section 82 of that Act should be presumed to be correct. But the Lambardar is not an independent authority. His appointment & dismissal rests with the Revenue Officers & under the rules made under Section 187 6i that Act the Lambardar himself may be removed from office by the D. C. for misconduct. Oppression of village servants by arbitrary appointment & dismissal may, in some circumstances, constitute sufficient misconduct so as to render the Lambardar liable for dismissal. Therefore the Lambtrdar cannot legally maintain that in exercise of his powers under the wazib-ul-arz he cannot be subject to any interference by the revenue authorities. Moreover, in the wazib-ul-arz it is clearly stated that the Lambardar shall be responsible for the management of the village. He thus owes a clear responsibility to the Govt. through the revenue authorities for proper management of the village & oppression of any class of village servants would necessarily indicate improper management & as such would bring his action within the scrutiny of the Revenue Officers.

6. If the relevant provisions of the C. P. T. Act are scrutinised the position becomes much more clear. Chapter v of that Act deals with village service tenants of whom Nariba is clearly one. Section 68 of that Act says that no village service' tenant shall be ejected from his holding except in execution of an order for ejectment passed by a Revenue Officer on some specified grounds. This section has obviously been framed with a view to prevent arbitrary ejectment of village service tenants. Only a Revenue Officer has the power to turn him out of the holding for certain well-defined grounds & his order is subject to appeal & revn. before higher Revenue authorities. At first sight this section may appear to conflict with the provisions in the wazib ul.arz which confer on the Lambardar & the Punches the right to appoint & dismiss a Nariha & deprive him of his holding. Even if there be such a conflict the provisions in the statute would obviously override any entry regarding the village customs contained in the wazib ul-atz. But I am not satisfied that there is really any conflict between the two. Both of them have to be construed together & if such a construction is adopted it will be clear that after the Lambardar & the Punches have passed an order dismissing a Nariba the actual ejectment of the Nariha from his holding should be done by the Revenue Officer Under Section 58. In fact el. (d) of Sub-section (l) of that Section specifies dismissal from office as one of the grounds for which a Revenue Officer may eject a village service tenant. Therefore, before exercising the powers under Schedule 8, the Revenue Officer has to be satisfied that the village servant has been dismissed from his office. The question arises as to the nature & extent of the enquiry that he can legally make for the purpose of so satisfying himself. It was argued that all that law permits him is to examine whether in fact the Lambardar & the Punches have dismissed the Nariha & that he has no jurisdiction to consider whether the dismissal was on proper grounds or not or else whether it was unreasonable. It is doubtless true that neither in the C. P. L. R. Act nor in the C. P. T. Act is there any provision conferring on the revenue authorities appellate jurisdiction over the action of a Lambardar & the Punches in dismissing a Nariha. Therefore, the revenue authorities cannot claim to have the right to enter into the merits of the order of dismissal, analyse the findings on facts or come to an independent finding of their own as regards the propriety or otherwise of such an order; but they have no doubt jurisdiction to enquire whether the dismissal was 'lawfull or not . It is true that in cl, (d) of sub.s. (l) of Schedule 8 the expression 'lawful' has not been inserted before the word dismissed.' But in sub.s. (l) of Schedule 6 it is clearly stated that the right of a village service tenant in his holding is lost only when he is 'lawfully dismissed.' The power of the Revenue Officer to eject a village service tenant arises only when the latter's right in his holding is lost & therefore, if subs, (l) of Section 66 is read along with cl. (d) of Sub-section (l) of Schedule 8 the reasonable construction is that in that clause also the Legislature meant that the dismissal should be lawful though they did not expressly say so. Therefore, there can be no doubt that the Revenue Officer has full jurisdiction to enquire into the lawfulness or otherwise of an order of dismissal passed by the Lambardar & the Punches. It is difficult to lay down eshausiively the various grounds which would render such dismissal 'unlawful.' Obviously substantial defects in procedure such as the failure to frame a specific charge, & the omission to give the village servant reasonable opportunity to show cause against his dismissal or any substantial defect in the constitution of the authority dismissing him such as the failure of the Lambardar to consult the Punches would be oar grounds for holding that the dismissal is unlawful. Similarly any fraud on the exercise of the power such as dismissal for some private grudge though ostensibly acting in exeroisa of the power may be a good ground. Difficulty, however, arises in deciding whether the Lambardar & the Punches are the final authority to decide what are 'due services' to be rendered by a Nariha to the villagers. The Wazib-ul arz doss not specify those due services. Apparently they are of a customary nature & the settlement authorities while allowing the customs to continue did not specify them in detail trusting to the good sense of the Lambardar & the Punches. But as the Lambardar himself is responsible to the Govt. for the proper management of the village & as he is liable to be dismissed for gross misconduct it seems obvious that any attempt by him (with the help of the Punches) to enlarge the 'due services' of a 1951 Orissa/44/45 Nariha so as to make him praotioally a private servant of the Lambardar & his favourites can be questioned by the revenue authorities while considering whether the Nariha should be ejected Under Section 88, 0. P. T. Act, The general control of the revenue authorities over the actions of the Lambardar is clearly implied in the provisions of the C P. L, R. Act & the very fact that while enacting the C. P. T. Act the Legislature thought that the power of evicting a village service tenant from his holding should be retained exclusively by the Revenue Officer indicates that the Legislature did not intend that a village service tenant should be entirely at the mercy of the Lambardar & the Punches. The pltfs.' claim of an unfecttered right to dismiss a Nariha must fail though it must also be added that the revenue officers cannot take upon themselves the functions of an appellate authority over the actions of the Lambardar & the Punches in dismissing a Nnriha.

7. An attempt was made to distinguish between a 'village servant' & a 'village service tenant.' This distinction is not material for the purpose of this litigation. In the Wazib-ularz the expression 'village service tenant' does not appear but the expression used is only village servant.' In Chap. v, C. P. T. Act, however, the former expression alone occurs. In chap. VI of the Hamid Settlement Report (pp. 27-28) no such distinction is maintained between the two expressions. Apparently when the service aspect is emphasised, the expression 'village servant' is used & when the tenancy aspect is emphasises in the 0. P. T. Act the expression 'village service tenant' is used. Nothing material, however, turns on this distinction.

8. I may now consider some other technical points that were urged l Firstly, it was urged that the Province of Orissa was not a proper party. It is doubtless true that the Province of Orissa is not a necessary party in this litigation but as the cause of action arose from the orders of the various Revenue officers it cannot be said that the Province of Orissa is not a proper party. Secondly, it was urged that a declaratory suit of this type is barred by Section 42, Specific Relief Act, , inasmuch as the pltfs. have not prayed for any consequential relief. Strictly speaking, no consequential relief can be validly prayed for in the Civil Ct.. The main relief which the pltfs. seek is the ejectment of deft. 1 from his service holding & putting it in the possession of his of his successor appointed by them. this power is however exclusively vested in the Revenue Officers by Section 58, C. P. T. Act & Section 95 of that Act expressly bars the jurisdiction of the Civil Ct. over such matters. There is no other consequential relief that; the pltfs. could pray for & consequently it cannot be said that the pltfs. were able to seek further relief & that they omitted to do so, as required by the proviso to Schedule 2 of this Specific Relief Act. .

9. The present suit in essence is a suit for the proper construction of Schedule 8, C. P. T. Act & the relevant entries in the Wazib-ul-arz regarding the Ingots of the Lambardar & the Punches. The revenue authorities gave an interpretation against which the pltfs. felt aggrieved. The question arise as to whether a pure declaratory suit of this type would be maintainable. But this point seems to have been set at rest by the P. C. decision in Robert Fisher v. Secy, of State, 22 Mad. 270 : (26 I. A. 16 P. C.), where it was held that:

'A suit to have the true construction of a statute declared & to have an act done in contravention of the statute, rightly understood, pronounced void & of no effect.'

was maintainable. This has been followed in Venkataraghwiah v. Sulbiah, A. I. R. (18) 1931 Mad. 502 : (136 I. C. 38) ; Secretary of State v. Subba Rao, A. I. R. (20) 1933 Mad. 618 : (66 Mad. 749) & Sri Krishna Chandra v. Mahabir Prasad, A. I. R. (20) 1933 ALL, 488 : (55 ALL. 791 P. B.). I would, therefore, hold that the suit is maintainable.

9-A. Next it was argued by Mr. Purohit that under 8.97, C. P. T. Act, this suit was cognizable only by a Civil Ct. having revenue jurisdiction & not by an ordinary Civil Ct. I do not think Schedule 7, C. P. T. Act would apply to a suit of this type. This suit is not between a landlord & a tenant as such. Doubtless a Lambardar is a landlord & deft. 1 as Nariha is a village service tenant under that Act but the suit has nothing do to with their relationship as landlord & tenant. Here there is no question of terminating the tenancy by evicting the tenant or determining any other incident of tenancy. As already pointed out, the suit in snbatance is merely a suit for true construction of Schedule 8, C. P. T. Act & the Wazil-ul-arz so as to set aside the orders of the revenue authorities maintaining deft. 1 in the holding notwithstanding his dismissal by the Lambardar & the Punches.

10. Lastly I take up the question of limitation. It was conceded that Article 120, Limitation Act, applies to the present case. On behalf of the applts. it was urged that the cause of action accrued on 11-7-82 when the Comr. Mr. Philip (ex. l a) gave his own view of the powers of the Lambardar & the Punches to dismiss a Nariha & maintained the order of the D. C. declining to give effect to such dismissal. The suit was filed more than six years after that date & it was therefore urged that the suit was not maintainable. On behalf of the resps however, it was urged that the cause of action did not arise till the final order of the Revenue Comr. Sir John Dain on 18.3-48 refusing to pass any orders in the case & that from 1932 to 1938 the parties were fighting out the dispute before the revenue authorities. Prom the narrative of facts stated above it would appear that on two distinct dates the reaps dismissed deft. . The first order of dismissal was passed sometime in 1931-83. That order was ignored by the D. C & also by Mr. Philip by his order dated 11-7-33 (Bx. l-A). On receipt of this order of the Comr. the Lambardar & the Punches drew up formal proceedings against ft. 1 & again dismissed him form the post on 31-10-32. They then applied to the S. D. o. to gives effect to this order & this 'was the subject-matter of the dispute between the partiea in the Revenue Cts. till the passing -of the final order by Sir Johns Dain on 13.3-38 (Ex. B-8). If the first order of Mr. Philip dated 11-7-32 be taken as the starting; point the suit is well within time. It should how-ever be noted that in none of the orders did the Comr. deny the pltfs. right to dismiss the Nariha. but all that he pointed out was that though they had legal right, that right was to some extent sub ject to scrutiny by the revenue authorities with aview to satisfy themselves that the right had been exercised reasonably & in good faith. It was urge that the pltfs. were claiming an unfettered right to dismiss a Nariha & since this right was interfered with by the orders of the Comr. the right of the pltfg. to sue arose when the was the first denial of that right in the first order of the Comr. in the year 1932. Even if this argument be accepted, I think limitation would run only from the last order of the Comr. in the year 1938. The pltfs. are lawful holders of offices, namely, the office of a Lambardar & the office of the Punches. They were in possession of those offices & whenever there was an interference with the performance of their duties as such a fresh cause of action arose. As pointed out in Annaswami Aiyangar v. Adivarachari, A. I. R. (28) 1941 Mad. 81 : (I. L. R. (1941) Mad. 275 P. B.) the interference by the Comrs.. did not , affect the position of the pltfs. as Lambardar & Punches & therefore they were not bound to institute a suit when there was the first interference. They could bide their time & whenever there was such an interference a fresh cause of action arose. So far as So far as the second order of dismissal dated 31-10- 32 is concerned, it is not seriously contended that, limitation would only run from the last order of the Comr. in the year 1938. From 1933 to 1938 the dispute was fought out before the revenue authorities &

'Limitation cannot be deemed to ran so long as the adverse order Is sub justice or is being challenged by the persons against whom it was made by an appeal to a higher tribunal & is liable to be set aside or to merge in the decision of the tribunal.'

Bans Gopal v. Basdeo Singh, A. I. R. (4) 1927 Oudh 168 : (20 O. C. 126).

11. I would, therefore allow the appeals, set aside the order of the Subordinate Judge & restore the order of the learned Munsif dismissing the suit. Both parties will bear their own costs.

Jagannadhadas, J.

12. I agree with my learned brother that the pltfs claim to an unfettered right to dismiss a Nariha must fail on a proper construction of the relevant provisions of the C. P. Tenancy Act. The Wazib-ul-arz of the village Ex. 2 no doubt recognises the right of the Lambardar &the; Punohes to dismiss a Nariha for failure to render dus service & Schedule 6, C. P. Tenancy Act, states that the right of the village service tenant in his holding is lost when he is lawfully dismissed. Though the Wazib-ularz states that on dismissal the Nariha may be depri ved of his service lands by the Lambardar & the Punches, the actual ejectment can only be done through the intervention of the revenue officer, the power to eject the village service tenants for one or other of the grounds specified under Section 58, C. P. Tenancy Act, being vested only in the revenue officials. Therefore on a proper construction of the Wazibul.arz taken with Sections 56 & 58, C. P. Tenancy Act, it is reasonably clear that while the Lambardar & the Punches have the power to dismiss the Nariha on his failure to perform the service, if they waist it to be followed up by deprivation of the service lands that can only be done through the machinery of a decree by the revenue officer. The jurisdiction vested in the revenue officer to decree ejectment on the ground of dismissal is not a power vested in him merely to execute & give effect to the order of dismissal. When a statutory tribunal is vested with the jurisdiction to exercise a specific power in a certain event & on the existence of certain facts, that tribunal has undoubtedly the power to examine the esistence & the legal validity of the facts & the events which give rise to the power. The revenue officer has the power to eject on the ground that the Nariha has been dismissed from the service. Before ejecting him therefore he mast be Satisfied about the dismissal., that is, not only that he wag in fact dismissed, but also that he has been lawfully dismissed, for as a matter of substantive right, it is clear from Schedule 6 that it is only on lawful dismissal that the right of the village service tenant is lost. The question whether he has been lawfully dismissed depends on the farther question whether the Nariha has failed to reader due service & whether the dismissal has been otherwise proper. It is therefore clear that while the power of dismissal is vested in the Lambardar & the Punches & while that dismissal does not require the confirmation ok approval of the revenue officer & is not open to appeal or revn.,. as such , the revenue officer has the right & the duty to examine the dismissal when his jurisdiction is invoked foe the purpose of ejecting the village service tenant from his service land. It has been sought to be argued on behalf of the Govt. that though the Wazib-UL urz (ex. 2) records the custom that the Nariha may be dismissed by the Lambardar & the Punches, it cannot be accepted as a correct record of the then existing customary right. Reference has been made to the settlement reports of Rassel, Nethersal, Dewar & Hamid. Russet's settlement report mentions in a general way with reference to village servants other than Jhankar & Ganda that the general control was given to the Gountia. Nethersal's report has nothing specific to say about it. Dewar's settlement report contains the note that such village servants may be dismissd & deprived of their service land by the Gountia & the Punches for failure to render due service. Hamid's settlement report states the Bame, but with the change that the word 'Lambardar' is substituted in the place of 'Gountia'. It was therefore argued that there was nothing more than the general control at the start & that too was given only to Gountia & that later on the power of dismissal was being exercised by the Gcuntia & the Punches & at a later date the power was being exercised by the Lambardar & the Punches. It is suggested that this indicates that the practice wag varying from time to time & that therefore the wizibul-urz {Ex. 2) cannot be taken to be the evidence of a definite & settled customary right which vests in the Lambardar & the Punches. I do not think this argument is permissible in view of the statutory presumption arising in favour of the entries in the Wazib-ul-urz under Schedule 2, C. P. L. R, Act as pointed out by my learned brother. The weight to be given to the wazibul-urz cannot be whittled down by reference to the entries in the earlier settlements & by taking them as disproving the correctness of the entry which shows the existence of the right. Indeed the revenue authorities themselves have, throughout the course of the dispute relating to this very Nariba from 1922 to 1938, consistently recognised-that the power of dismissal was not vested in themselves, but that it was vested in the Lambardar & the Punches. As early as in 1922, it has been stated in the report (Ex E dated 15-11-1922) that the decision of the Gountia & the Punches relating to dismissal, is final & not open to revn. by the revenue Ct. In the order of the Revenue Corns, dated 7-7-1932 (Ex. B-8), the correctness of the note in the wazib-u'-urz vesting the power of dismissal in the Lambardar & the Punches for failure to render due service was recognised & it was stated that while that power did tot mean that the dismissal would be arbitrary, unquestion. ably the power of dismissal did vest in the Lam. bardar & the Punches. This position has also been recognised in the order of the Revenue Comr. dated 15-9-1933 (ex. B i), in which it was specifically stated that in legal theory, the village officials bad the right to dismiss the Nariha. Therefore it is impossible to uphold the extreme contention raised on behalf of the Govt. that the ultimate power of dismissal was vested only in the Govt. officials on the ground that the service lands are the lands granted by the Govt. It is equally impossible to uphold the contention urged on behalf of the Lambavdar & the Punches that they have the sole & unfettered right to exercise the power of dismissal in such manner as to compel the revenue authorities to eject the village service tenant from his service holding on a bare production of their order of dismissal. The position may be summed up as follows :

13. The power of dismissal is vested in the village officials. The revenue officials are not in any sense either the confirming or the appellate authority in respect of such dismissal. They are, however, not merely an executing Ct. to give effect to She orders of dismissal passed by the village officials. When approached for ejectment, they have the right & the duty to examine the factum & the legal validity of the dismissal. It is neither feasible nor possible for this Ct. to lay down the exact scope of the authority of the revenue officials in such circumstances excepting to indicate the above broad limits. Since however the whole history of this litigation at least from 1980-1938 has turned on the question as to whether the Nariha has or has not failed to render due service, it is necessary to state that on the question as to what is due service, the village officials have not the final voice. The revenue officer as part of his jurisdiction, to determine whether there has keen lawful dismissal, can also determine whether there has been failure of due service & as incidental to that can also determine whether the view of the village officials as to what is due service is correct. . He can there, fore determine what all comes within the scope of due service. For that determination he must investigate what the custom is, While he cannot have the power to vary the custom, he has the normal power of a judicial tribunal to interpret it with reference to considerations of practicability under changed circumstances. But it must also be clearly stated that the revenue officials cannot shirk this duty of ascertaining & interpreting the custom & determining what amounts to failure of due service on considerations of difficulty as has been done by the revenue Comr. Sir John Dain in his order dated 13-3-1988 (ex. B-8), wherein he stated:

'I am not prepared to pass any orders in this case. The whole arrangement is an anachronism & no longer workable.'

When the power of dismissal is vested by law in the village official & the village officials have properly & lawfully dismissed the village servant, the revenue authorities are bound to give effect to it by ejecting the tenants from the lands subject to their jurisdiction as above stated of finding whether the dismissal is lawful. If as Sir John Dain says the arrangement is no longer workable, that can be no ground for their refusal to exercise their power of ejectment. It has been suggested in the coarse of the arguments that the wording of Section 58, C. P. Tenancy Act, leaves a discretion with the revenue officials to refuse to eject a village service tenant even if any of the grounds mentioned in the section are made out. I am not prepared to construe Section 58 as vesting a mere discretionary power in the revenue officials. The negative working of 8, 58, Sub-section (1.) is that 'a village service tenant shall not be ejected from his holding except in execution of an order of ejectment on one or the other of the grounds specified' cannot be construed as vesting an overriding discretion in the revenue officer to refuse ejectment even when those grounds are made out. It is merely a prohibition against ejectment by any other machinery. If as Sir John Dain says the arrangement is an anachronism & is not workable the remedy probably lies in the hands of the revenue authorities themselves who may terminate the anachronism by enfranchising the land from the service tenure & getting other arrangements made for the service if required.

14. The learned counsel for the applts. in both the appeals have raised a number of other technical objections to the suit, out of which it is necessary to notice only the plea as to limitation. The history of this dispute from 1922-88 shows that there have been attempts at dismissal of the Nariha on a number of occasions & the revenue officials dealt with the question of ejectment arising from all such dismissals from time to time in different ways. There was first a dismissal seal in 1922 & the appointment of another person by name Braj Bagar. But the Nariha Baladav Bagar appears to have been reinstated by amicable settlement vide Ex. B. There was again another dismissal in or about 1980 & the appointment of another person by nami Nitai Bhoi. On this ooaasion again the Narih Baldev Bagar wag put ba:k in possession & was found to be doing his duties ; vide order (ex. B 1) dated 18-12-30. There was again a fresh dismissal in or about 1931 & the appointment of one Kasiram Bagar. The Revenue Comr. by his order dated 7-7 1933 (Ex. B-4) recognised the right of the Lambaedar & the Punches to dismiss-a Nariha for failure to render due service, but held that it could not be arbitrary & unreasonable & that the dismissal must be for specific neglect of duty & for reasons to be formally recorded. He, therefore, declined to make an order of ejectment; & reinstate the Nariha Baldev Bagar on the above grounds. This was followed up immediately by another dismissal by the village officials & this time they appear too have formally prescribe the duties of the Nariha & formally-dismissed him for not performing those duties. The revenue authorities thereupon attempted to consider the question what were the services to be performed by the Nariha. The various attempts to determine the scope of those services have gone on from 1932-1938. The Eevenue Comr. by his order dated 16-9-1933 (Ex. B 4) declined to give effect to the order of dismissal of 1932 by making an order of ejectment & directed that the village officials & the Nariha should if possible, be made to agree about the scope of the duties & if they Could not agree that a responsible officer should decide the same. His order is a reinstatement of the Nariha Baldev Bagar probably pending a final determination of the scope of the duties with a view to furnish the standard with reference to which the lawfulness & the validity of the dismissal may be judged. At any rate it does not appear very clearly from the subsequent record whether there has been any farther dismissal, but it does appear that there have been further attempts by the revenue officials either to bring about an agreement between the parties as to the scope of duties & failing it an attempt to determine the same by themselves. This appears from the various orders, Exa. 4, 5, 6, B 5, B-6 & B-7. These attempts appear ultimately to have been given up & the order of the Revenue Comr. Sir John Dain dated 13-8-88 (ex. b 8) closed the matter with a refusal to pass any further orders.

14. The contention of the applts. is that the history of the dispute as above set out; shows that at various stages the order of dismissal was not given effect to by the revenue authorities & in that sense the alleged unfettered right of dismissal has been challenged ok infringed with, on successive occasion & that, therefore, the present right which is beyond six years from the earliest challenge of that right is time-barred. I agree with my learned brother that this contention is untenable. It appears to me that the real & effective interference with the right of dismissal during the whole course of the dispute from 1922-19B8 was only when the Revenue Comr. Sir John Dain by his order dated 13.3-38 totally declined to give effect to the order of dismissal by refusing to go into the questions which were involved in, the dispute on the ground that the arrangement was an anachronism & not workable. Until then the revenue authorities did not in terms either challenge the pltfs. eight of dismissal, nor did they refuse arbitrarily to give effect to the dismissal, bat were only concerned to examine the grounds of dismissal at each stage. It appears to me that merely because the pltfs. submitted to such examination at the previous Btagos, they cannot now be considered to be too late in approaching the Ct. for a declaration of their alleged unfettered right if in fact & in law they have got it & have not lost it.

15. The question of limitation applicable to such class of oases has bean the subject-matter of a number of conflicting decisions which it is unnecessary to examine for the purpose of this case. It has been laid down by the P. C, in Mt. Boio v. Mt. Koklan, A. I. R. (17) 1930 P. C. 270 at p. 272 : (11) Lah. 667) as follows :

'There can be no right to sue until there is an accurual of the right asserted in the suit its infringement or at least a clear & unequivocal threat to infringe the right by the deft, against whom the suit is instituted.'

In the case in Jalandhar Thakur v. Jharula Das, 43 Cal. 244 : (A. I. R. (l) 1914 P. C. 72) each infringement of the right was held to give a fresh cause of action. With reference to mere denials or hostile assertions short of infringement or ouster, some oases have held that it is open to the pltf. concerned to treat each denial as giving a fresh cause of act in of action vide Appa Rao v. Secy. of State, A. I. R. (25) 1938 Mad. 193 : (181 I. C. 688), but other cases have held that unless the latter denials or infringements are of more serious nature than the earlier ones, it is only the earlier denial or infringement that furnishes the only cause of action see Ponnu Nadar v. Kumaru Beddiar, A. I. R. (22) 1935 Mad. 967 : (59 Mad. 75) This last decision does not appear to have been fully approved in the F. B. case in Annaswami Ayangar v. Adivarahachari, A. I. R. (28) 1941 Mad. 81 at p. 83: (I. L. R. (1941) Mad. 275 F.B.). It appears to me that in this case even if Ponnu Nadar v. Kumaru Beddiar, A. I. R. (22) 1935 Mad. 967 : (59 Mad. 75) is accepted as correct, the order of Sir John Dain in 1938 arbitrarily refusing to pass any orders, is a denial of the right of a character totally different from the previous orders of the Bevenue Comrs. & clearly furnishes a fresh cause of action. To my mind that is the real & effectiveause of action in this ease. I might, however, state that, as at present advised, I am inclined to agree with the views of Venkata Subba Rao J. in Appa Bao v. Secy. of State, A. I. R. (25) 1938 Mad. 193 : (181 I. C. 688), to the effect that each successive denial will furnish a fresh cause of action for a suit for declaration, so long as the substantive right itself is not lost, & that the party is not bound on peril of losing his remedy to take every denial or infringement seriously & to rush to Ct. I, therefore, agree that the plea of limitation is not maintainable in this case.

16. In view of the fact that the pltf. has corns to Ct;. for a declaration that he has the unfettered right of dismissal & this has been negatived by the proper course to adopt is to dismiss 6 be pltf's, suit. It is unnecessary to grant a limited declaration of his right of dismissal formally since the same has been clearly recognised throughout by the revenue authorities & has also been specifically decided by us now in this judgment. The result will be that the appeals will be allowed & the suit will be dismissed. In the circumstances of this case, the proper order as to costs will be that all the parties should bear their respective costs throughout.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //