1. This is an application presented by the Maharajah of Jeypore under Rule 20 of the Agency Rules praying the High Court to direct the Agent to he Governor at Vizagapatam to review his judgment in Appeal Suit No. 5 of 1898 reversing the decision of the Senior Assistant Agent giving a decree in favor of the Maharajah for possession of certain villages on the ground that he was entitled to resume the villages as the terms on which they had been granted to the defendants had been violated.
2. On behalf of the defendants two preliminary objections are raised:
(1) that the latter part of Rule 20 under which the application is made is ultra vires and that, therefore, no such application can be entertained by this Court; and
(2) that even if the latter part of Rule 20 is not ultra vires this application should not have been presented to this Court but to the Governor in Council under Rule 31.
3. As regards the first objection Rule 20 runs as follows:
All decrees passed by the Agent on appeals from decrees of his subordinates shall be final, the Sadr Court having the power on special grounds to require him to review his judgment, as directed by them.
4. The contention of the defendants is that the portion of the rule which follows the word 'final' is ultra virex, inasmuch, as the rules purport to be framed under Section 4 of Act XXIV of 1839 and that section, it is contended, merely authorizes the Governor in Council to determine in what classes of suits the decision of the Agent shall not be liable to appeal to the Sadr Court, but shall be final and does not authorise the Governor in Council to allow the Sadr Court to direct a review in cases in which no appeal lies. We are unable to accept this contention. Section 4 runs as follows:
And it is hereby enacted, that- it shall be competent to the Governor in Council of Fort Saint George, by an Order in Council, to prescribe such rules as he may deem proper for the guidance of such Agents, and of all the officers subordinate to their control and authority, and to determine to what extent the decision of the Agents in civil suits shall be final, and in what suits an appeal shall lie to the Sadr Adalat, and to define the authority to be exercised by the Agents in criminal trials, and what case ho shall submit for the decision of the Faujdari Adawlut.
5. The defendants rely upon the observations of the learned Chief Justice in the case reported in I.L.R. 20 M. 329 Maharajah of Jeypore v. Papayamma, to the effect that, in this section, the words 'to what extent' mean substantially the same as the words 'in what suits' in the following clause of the same section. With all deference to the learned Chief Justice, we are unable to take the same view.
6. The latter part of the section beginning with the words 'and to determine' seem in substance to lay down that the Governor in Council may determine firstly in what suits an appeal against the decision of the agent shall lie, and secondly in cases where no appeal lies, the conditions subject to which the Agent's decision shall be final, and it is with reference to the second matter that the words 'to determine to what extent the decision of the Agent shall be final' were intentionally inserted.. If it was not intended to provide for two distinct matters, there would have been no need whatever for the introduction of this clause. If the intention of the legislature was to provide for one matter only, viz., in what suits an appeal should lie, that would have been sufficiently provided for by the rest of the section without this clause. Moreover, the words 'to what extent' seem to refer in their grammatical sense to oases where, though no appeal lies, the finality of the decision is not intended to be absolute, but is subject to qualifications or conditions. In this view Rule 20 which provides that the finality of the Agent's decision shall be subject to the power of the Sadr Court to direct the Agent to review his decision on special grounds, is not, in our opinion, ultra vires.
7. As regards the second objection we are clearly of opinion that Rule 31 has no application to a case like the present under Rule 20.
8. The express language of Rule 21, relating to the appeals to the Sadr Court shows that an appeal petition may be presented direct to the Sadr Court, and we can see no reason why an application to the Sadr Court to act under Rude 20 should be presented to the Governor in Council to be passed on by him, as a matter of course, to the Sadr Court.
9. Moreover, as contended on behalf of petitioner, the Sadr Court may act of its own motion under Rule 20, as the rule does not require any application by a party as a condition precedent to the exercise of its powers.
10. We, therefore, overrule the preliminary objections.
11. Passing to the merits, no doubt the power under Rule 20 is of an exceptional character and should not be exercised save on special and substantial grounds.
12. We think, however, that in the present case such grounds exist. The- facts of the case are as follows:
13. Prior to 1800 the then Maharajah took possession, of the villages in dispute from the Father of the defendants, who sued before the Agent to recover thorn. The dispute was adjusted, and the villages were restored, to the possession of the defendants' Family, the kattubadi being raised from Rs. 5 to 35 per annum. The petitioner's case is that the terms then agreed to are those set-out in a petition to the Agent of which Exhibit A. is a certified copy, Both Courts have treated this document as genuine ; and on that footing, it is cleat that the defendants were holding the villages under a, service tenure liable to resumption by the petitioner.
14. We are unable to accept the contention that Exhibit A should be read along with the original copper plate grant, Exhibit I. Exhibit A makes no reference-to Exhibit I and is, on the face of' it, a complete statement of the terms agreed to between the parties . The Agent, while treating Exhibit A as genuine, appears to regard it as either inmaterial or invalid on the ground that it must have been obtained by pressure brought to bear upon defendants' father. No such plea of coercion was raised, nor is there any evidence to support it. On the contrary, the fact, stated in Exhibit A itself that the tonus were settled, in the presence of the then Agent, would seem to negative such a surmise; and the fact that no such plea was raised during the 30 years which, have elapsed since Exhibit A was written is almost conclusive in the same direction. Nor can Exhibit A he treated as immaterial. No doubt Exhibit II. shows that a petition was presented on the 11th December 1865 referring to the adjustment of the dispute, and asking that the suit might be dismissed, but there is nothing to show that the suit was dismissed before the terms were settled as stated in Exhibit A, which is dated '23rd February 1866. If Exhibit A is genuine, as it has been held to be by both the Courts below, it is clearly the instrument which settles the terms under which the defendants were to hold the villages. We must also observe that the view of the Agent that the arrangement evidenced by Exhibit A could not bind the defendants who were no parties to it, is untenable. They are the sons of the party who made that arrangement with the then Maharajah. Whether the defendants were then, in existence is a, matter about which no allegation was made, no issue raised and no proof offered. .It was certainly not open to the Agent, on a, mere guess as to their present apparent age, to hold that they were in existence in 1866. Even assuming that they were so, the arrangement was a compromise of a disputed claim entered into by their father under which possession, of the villages passed from the Maharajah to their Family, and as such it, was prima facie, binding on the family. No suggestion of fraud or other ground on which it could be invalidated as against the defendants, has been put forward, and it is difficult to see how any such plea could be maintained after the lapse of so many years.
15. For these reasons, we think that the decision of the Agent reversing the decree of the Senior Assistant proceeds on untenable grounds and ought to be reviewed. We accordingly direct him to review his decision in the light of the observations made in this judgment. Costs in this Court will abide and follow the result of the review in the Agent's Court and should be provided for in his revised decree,