Sadasiva Aiyar, J.
1. The plaintiff is the appellant. His suit was for a declaration that the appointment of the 3rd defendant to the office of headman of the new village of Muthalapuram, created by the amalgamation of two old villages, was illegal and that, therefore, the plaintiff's appointment by the Divisional Officer affirmed by the District Collector conferred the office upon the plaintiff. He also sued for recovery of the arrears of emoluments received wrongly by the 3rd defendant. The 3rd defendant among other pleas contended that the Civil Court had no jurisdiction by the provisions of Section 21 of the Hereditary Village Offices Act, Madras Act III of 1895, to entertain such a suit. The lower Courts overruled this plea as to jurisdiction, but on the marits dismissed the plaintiff's suit.
2. I shall first deal with the question of jurisdiction. Section 21 of Madras Act III of 1895 provides: 'No Civil Court shall have authority to take into consideration or decide any claim to succeed to any of the offices specified in Section 3 or any question as to the rate or amount of the emoluments of any such office or, except as provided in proviso (ii) to Sub-section (1) of Section 13, any claim to recover the emoluments of any such office.' So far as the suit relates to the recovery of emoluments, it is prima facie barred by Section 21, unless the claim to those emoluments is excepted by proviso (ii) to Sub-section (1) of Section 13. But the proviso saves the jurisdiction of the Civil Court only as regards recovery of find forming the emoluments of the office, and there is no prayer in the plaint for the recovery of any land as emoluments. So far, therefore, as the claim to emoluments is concerned, I think the Civil Court has got no jurisdiction, and the lower Courts ought to have dismissed the suit so far as it relates to the claim for emoluments.
3. Then coming to the suit so far as it relates to the two declarations (amalgamated into one in the plaint), namely, to the declaration 5 Ind. Cas. 137 that the appointment by the Board of Revenue of the 3rd defendant is illegal, and to the declaration (2) that the plaintiff is the legally entitled headman of the new village, I think Section 21 does not apply to the claim for these two declarations. It has been held in Mavoulu Seetharam Naidu v. Doddi Rami Naidu 5 Ind. Cas. 137 that Section 21 should be read along with Section 13 and that a suit in the Civil Court H barred only where the relief claimed is such that the plaintiff could maintain a suit there for before the Collector under Section 13. Under Section 13 a suit before the Collector can be brought only on the ground that the plaintiff is entitled to the village office of certain specified grounds. Tie claim in the present suit is not covered by those grounds and, therefore, the plaintiff is not entitled to bring any suit for these declaratory reliefs before the Collector, and hence Section 21 does not bar the maintainability of the present suit in the Civil Court. On another narrower ground also, Section 21 does not apply to the present suit, because Section 21 prohibits the Civil Court from taking into consideration or deciding any claim to succeed to particular offices (which include the office now in dispute), but not any claim to be, appointed in the first instance to any of those offices. I, therefore, agree with the lower Courts on the question of jurisdiction so far as the declaratory reliefs are concerned.
4. Coming to the merits, the newly created office of headman in the new revenue village falls, in my opinion, under both Section 9 and Section 15 of the Proprietary Estates Village Services Act, Madras Act II of 1894. I think that the two sections should be read together, where a question as regards the appointment to a new office created by the amalgamation or division of old villages has to be considered. The provisions of the two sections are not inconsistent with one another. Of course, Sections 10 and 11 also should be read along with Sections 9 and 15, so far as they can be made applicable to the new offices in a village newly created under Section 15. Reading the sections thus together, it is clear that the power of making an appointment to (he newly created headman's office (which is the office now in question) vests in the first instance in the proprietrix, namely, the 1st defendant in this cafe. She appointed the 3rd defendant and reported her action to the Revenue Officer in charge of the Division in accordance with the last sentence of Section 15, Clause (1) of Act II of 1894. The 3rd defendant, so appointed, was not disqualified under any of the five heads (a) to (e) of Sub-section (3) of Section 10. Hence, the Divisional Officer had no right to take any action under Section 11 of the Act. The only other provision empowering the Revenue Officer in charge of the Division to interfere with an appointment made by the proprietor is found in Clause (3) of Section 15. That clause says: 'if the proprietor fails to submit the report referred to in Sub-sections (1) and (2) within six weeks of the creation of the new offices, etc.,' the powers vested in the proprietor by Sub-sections 1 and 2 may be exercised by the Revenue Officer of the Division. In this case, the proprietrix did not fail to submit the report and the Divisional Officer had, therefore, no right to exercise the powers of the proprietrix himself. No doubt, no special provision seems to have been made in the Act for a case in which the proprietrix in her report of appointment selects a person outside the families of the last holders of the offices which hive bam abolished, she being under an oblivion by Section 15, Clause (1), to select only such a person. It is argued that if a liberal construction is given to the language of Clause (3) of Section 15, that is, if the clause 'if the proprietor fails to submit the report referred to in Sub-sections (1) and (2), etc.,' be held to include a case where the report under Sub-section (1) makes an appointment of a person which the proprietrix is prohibited from making, the Division Officer obtains jurisdiction to exercise the powers of the proprietrix. I do not think that the language of Clause (3) is capable of such extension, though. I must admit that I have come to this conclusion after much hesitation. Assuming, however, that Clause (3) of Section 15 did empower the Divisional Officer to exercise the powers of the proprietrix, if her appointment was not made from among the families of the last holders of the abolished offices, Clause (3) of Section 15 vests such powers in the Divisional Officer alone, not in any higher authority. No appeal is provided for in the Act to the Collector or from the Collector to the Board of Revenue in respect of orders passed by the Divisional Officer when exercising the propriety's powers so vested in him. I am, tnerefore, of opinion that so far as the orders of the Collector and the Board of Revenue are concerned, they were passed wholly without jurisdiction.
5. Then we have to consider the question whether the proprietrix is selecting the 3rd defendant selected a parson who was not among the families of the last holders of the abolished offices, and whether consequently the Divisional Officer, had a right to Act under Clause (3) of Section 15, assuming 8 that clause applies. Both the lower Courts have come to the conclusion that the 3rd defendant did hold the office of Nattamaigar (headman) in one of the old villages which have now ceased to exist. It is well known that the officer of headman, though in the olden days held by can parson, had been in several cases in more recant times I held by more than one parson, usually two, of whom one exercises some only of the several responsible duties which belong to the undivided headman's office and the other the other remaining duties. The Police and Magisterial functions were usually exercised by one, and the revenue duties and the exercise of authority over the Talayari, Mirganti and the other village, servants, 60 far as their duties were connected with the collection of revenue, were exercised by the other. In such a case, both the officials can be called 'headmen.' Though in the popular view, that one of the two headmen who exercised Police and Magisterial functions might be considered as the more important officer, it cannot be said that the other headman did not also hold the office of headman, I, therefore, think that the 3rd defendant's appointment by the proprietrix as headman is not illegal by reason of the fact that he had not usually exercised Police and Magisterial functions which had been exercised usually by the other headman, and I would, therefore, on this ground also uphold the dismissal of the plaintiff's suit by the lower Courts.
6. The second appeal is, therefore, dismissed with costs--two sets.
7. It would, in my opinion, be sufficient for the disposal of this case to hold that there is a finding of fact as to the position occupied by the 3rd defendant in the village which we are not competent to interfere with, and that, therefore, the appointment of the 3rd defendant by the village proprietrix is in accordance with law, and the suit necessarily fails. But several other questions have been raised as to the powers of the Courts and of the Revenue Officers, and have been dealt with by my learned brother and I wish, therefore, to make a few observations on some of them.
8. The first point raised is whether the suit is not cognizable by the Civil Court. It is suggested that the suit is not cognizable, because Section 21 of Act III of 1895 says: 'No Civil Court shall have authority to take into consideration or decide specified in Section 3 or any question as to rate or amount of the emoluments of any such office, or, except as provided in proviso (ii) to Sub-Section 1 of Section 13, any claim to recover the emoluments of any such office.' Now, with regard to the claim here to does not appear to me to be a claim to succeed to any of the offices speeded in Section 3, because the word succession' is used in Act III of 1895 with reference to hereditary rights and no such right can be claimed. Section 11, Clause (2), says as follows: 'The succession shall devolve in accordance with the law or custom applicable to the office in question at the date on which this Ace comes into force,' and the next clause says: 'Where the next heir ii not qualified under Sub-section (1), the proprietor shall appoint the parson next in order of succession who is so qualified, etc.,' and Clause 4 says: 'When the person who would otherwise be entitled to succeed to an office is a minor, etc.' Section 12 says: 'The succession to village offices forming Class (4) in Section 3 shall devolve in accordance with the law or custom, etc.' This appointment was made under Section 15 of Act II of 1894, which provides that where there has been a regrouping of villages, all the village offices shall cease to exist and new offices which shall be hereditary shall be created for the new village, and in choosing persons to fill such offices the proprietor should select the persons whom he may consider the best qualified from among the families of the last holders of the offices which have been abolished. Therefore, no person can claim to be appointed under that section by virtue of a right of succession. So far as to the first part of Section 21 of Act III of 1895. The next is, no Civil Court shall have authority to take into consideration or decide any claim to recover the emoluments of such office, such office being an office specified in Section 3. The offices specified in Section 3 are, among others, hereditary village offices to which the Madras Proprietary Estates Village Services Act is extended, and other-hereditary village offices in proprietary estates, except certain offices. Now it has been held by this Court in the case of Mavoulu Seetharam Naidu v. Doddi Rami Naidu 5 Ind. Cas. 137 that although there may be suits to recover emoluments which come within the language of Section 21 When read broadly, those suits, unless they are such as could be filed in a Revenue Court under Section 13, are not excluded under Section 21. The suit in 33 Mad. 208(1) was one to recover emoluments in the following circumstances: 'The plaintiff's case was that he was the Village Munsif of Balagudaba; that in the year Vilambi he leased to the defendant the suit lands which formed part of his Village Munsif's Akaram, for a cist of Rs. 40 and got a kadapa executed in his favour; that after the expiration of the lease the defendant held possession of the land that the plaintiff having made a demand on the defendant to pay the cid and to deliver possession of the land, the latter refused to do so.' So it was a claim to recover the emoluments of the office from a person who was holding them over after the expiry of the lease. Whether it would be necessary to go to Section 13 to decide that such claim was not covered by Section 21, I am not quite dear. At present I am inclined to think that apart from Section 13, Section 21 could not have been held to cover the case, and I do not think it necessary in this case to decide whether the view taken by the Beech in that case that no claim which is not covered by Section 13 is covered by Section 21 is correct or not. The language of the earlier part of the section is certainly very wide; it is, 'to take into consideration or decide any claim to succeed to any of the offices, etc,' and it may be that there are cases which are not' covered by Section 13 which should properly be taken under Section 21, and I am not satisfied yet that this suit is not within the mischief of Section 21. The fact that otherwise there would be no Court to try such a suit does not weigh with me as much as it did with the learned Judges who decided that case; because I am satisfied that there is no right of suit. I his is a suit to recover emoluments and the office by a person who connect found acclaim on any right under the Statute or by any appointment under the statute. It may be that if he had been appointed by the Zemindar and the appointment had been cancelled by the Revenue Court, he would have been entitled to bring a suit to recover the office. But he was not appointed by the Zamindar and, therefore is to have it declared that he is a person eligible under the Act and, therefore, that the appointment of another person who is not eligible under the Act is bad in my opinion no such suit will lie. The fact that he is eligible does not entitle him. Section 15 of Act II of 1894 is specific on the point. It says, In choosing persons to fill such new offices, the proprietor shall from among the families of the last holders of the offices which have been abolished.' This obviously may give a very wide sphere of selection, because two or more villages may be amalgamated and one can well imagine a case where four villages were amalgamated in each of which there was a headman with a certain number of members of his family. There might be 50 or 60 persons eligible for the appointment, and it is undoubtedly at the discretion of the proprietor which of these 50 or 60 men to appoint. It is not a case of a person having a right to succeed, as being next in order of succession, provided that he has the necessary qualifications. The plaintiff in this case has no right whatsoever to be appointed, and as he has not been appointed his position is no higher than that of any member of the public. I am clearly of opinion that it is not open to a man who has no right and claim in. himself, and does not bring the suit as a member of the public affected by the appointment, to ask for a declaration that the person appointed is not a person qualified to bold the office. I am, therefore, of opinion that the suit fails on that ground, as well as on the ground that the person appointed is one whom the village proprietor could appoint.
9. I agree with my learned brother in the views he has expressed as to the powers of the Revenue Officer, and am satisfied that the Board of Revenue had no jurisdiction to set aside the order of the Collector on appeal any more than the Collector or Divisional Officer had any power to make the appointment. That is a matter, however which does not affect the decision of this case, and it is sufficient to say that the suit has been properly dismissed for the reasons which I have just stated.