1. This appeal by the plaintiff arises out of a suit for ejectment of the principal defendants, now respondents, from certain lands on declaration of the plaintiff's title thereto. There was also a prayer for mesne profits in respect of the years 1327 to 1329 B. S.
2. Plaintiff's case was that the lands in suit belong to him in mourasi panchaki and ghatwali right by virtue of a grant made to his remote ancestor Sobharam Laik by the Raja of Khatra, that thereafter his predecessors were in possession of the said lands in such right long before the time of the Bast Indian Company, their interest being a permanent heritable interest; that sub-leases of the land were granted, and that eventually the lands came into the possession of the plaintiff. After the acquisition of Bengal by the British the ghatwaili right vested in the Government, and since then the plaintiff's ancestors and plaintiff himself had been paying panchaki rent to the zamindar, and had been performing ghatwali duties under orders of the Government as directed by the zamindar. Plaintiff averred that the Secretary of State for India in Council (defendant 15 in the suit and now respondent 24) had no right to deprive him of the lands by dispensing with his services. The plaint contained other allegations as to the circumstances in which the plaintiff came to be dismissed, and affirmed that the Magistrate had no right or jurisdiction to dismiss him from the post of ghatwali and to appoint defendant 1 in his place.
3. Defendants 1 and 15 filed separate written statements and contested the suit, They contend inter alia that the plaintiff and his predecessors, who were ghatwals of Ghat Lohat, held the lands in suit in lieu of remuneration for service as ghatwals, that they had no panchaki right or interest of any kind apart from the ghatwali, that the tenures in question are neither permanent nor hereditary in the sense claimed by the plaintiff, that no ghatwal was entitled to succeed by inheritance unless approved and appointed by the Magistrate, that ghatwals possessed the lands by virtue of their appointment, that the payment of panchaki or quit rent is a common incident of some of the ghatwaii tenures in Bankura District, that the District Magistrate of Bankura had power to appoint and dismiss ghatwals, that he dismissed the plaintiff for neglect of duty upon failure to pay a fine imposed upon him for such neglect and that the said order was in due course confirmed by the Commissioner of the Division and the Local Government' that such dismissal carried with it forfeiture of the service tenure, that since then plaintiff had ceased to have any right or interest in the land, that defendant 1 was appointed ghatwal in his place and that the civil Court had no jurisdiction to interfere or to make any declaration.
4. A number of issues were framed the two most important ones being the 7th and 8th which were as follows:
(7) Had the plaintiff or his predecessors or ancestors, apart from the ghatwali any panchaki or hereditary right in the lands in suit as alleged in the plaint ?
(8) Were the orders of the Magistrate dismissing the plaintiff and appointing defendant 1 as ghatwali without jurisdiction, illegal, ultra vires and void ?
5. The trial Court found on a consideration of the evidence and the authorities that there was no evidence, oral or documentary, to show that the tenure was so ancient as alleged in the plaint, that the tenure was for ghatwali service, that there was no evidence to establish the existence of the tenure apart from that service, that the heir of a member of the ghatwal's family was invariably appointed by the Magistrate and did not succeed simply by right of inheritance, that the civil Court had no jurisdiction to interfere with the orders of the Magistrate in these matters, and that the plaintiff was properly dismissed.
6. On these findings the suit was dismissed. The plaintiff then appealed to the District Judge, who in a somewhat brief judgment confirmed the decision of the Subordinate Judge holding that the evidence left no room for doubt that the tenure was a ghatwali tenure for ghatwaili service, that the dismissal of the plaintiff involved forfeiture of the tenure and that his attempt to prove that he and his predecessors had a panchaki or hereditary right in the lands had failed. The appeal was accordingly dismissed, as also a cross-appeal filed by the respondents.
7. The plaintiff thereupon preferred this second appeal.
8. The first point taken on behalf of the appellant is that the judgment of the Court of appeal below is not in accordance with law and is not in compliance with Order 41, Rule 31, Civil P.C. There can be no doubt that the judgment does furnish some ground for this criticizm, and at one stage of the argument I was inclined to hold that it might be necessary to remand the appeal for rehearing. On farther consideration however I have come to the conclusion that the nature of the ease and the particular facts and circumstances proved furnish a sufficient explanation why the judgment, which is a judgment of affirmance, has not dealt with the evidence in greater detail, nor do I think that any useful purpose would he served by ordering a remand for the reason that there do not appear to be any matters for further investigation. The facts admitted and proved and the authorities bearing upon the case are so clear that it would be a mere waste of time as well as an unnecessary expense to the parties concerned if we directed a rehearing of the appeal.
9. Mr. Bose on behalf of the appellant laid stress upon the number and variety of ghatwali tenures and made it a grievance that the Courts below, instead of dealing with the evidence with the object of determining what the particular variety of ghatwali tenure is in this case, have based their decisions upon the authorities, and those authorities, he argued, have no application because in those cases the facts were different. No doubt it is true that there are many different kinds of ghatwali tenures, but it may be observed that the case set up in the plaint was that there had been an ancient grant of a mourasi panchaki right by the Raja of Khatra in favour of the plaintiff's ancestor Sobharam, that it was a permanent heritable right and had been enjoyed as such by the plaintiff and his ancestors. That case was dealt with by the Subordinate Judge at considerable length and his finding was that there was no evidence, oral or documentary, to support it. That finding has been confirmed by the District Judge. Mr. Bose conceded, as I understood, that the plaintiff had failed to substantiate that part of his case. He presented the plaintiff's case however in a somewhat different form, his submission being that while the plaintiff up to the year 1893 was performing ghatwali duties, from 1894 an amicable settlement was come to and it was decided that all ghatwali lands were to be resumed, these lands being then resettled with the ghatwals who were found to be in possession. From that date the ghatwals were absolved from service and kabuliyats were taken from them by the zamindar with the consent of Government. In short the suggestion is that as a result of the emancipation from service the character of the tenure was changed (vide also ground 13 of the grounds of appeal) and that the plaintiff acquired a zamindari mourasi panchaki right apart from and independent of the performance of the ghatwali services. There is a good deal of vagueness as to the precise date when this change in the nature of the tenure took place, and when I asked Mr. Bose when this title accrued to the plaintiff he replied that he was unable to give any definife date. There is a similar vagueness as to the events which brought about this change in the character of the tenure. Mr. Bose referred to oral evidence to the effect that a notice was issued by the Magistrate absolving the ghatwals from further service. Such evidence obviously cannot be regarded as a proper foundation for a declaration of title.
10. The important point however in connexion with this argument is that the case, which it is now sought to make, was not the case with which the plaintiff came to Court, and finds no place in his plaint. No issue was framed upon the point for the very good reason that no such case had been set up. If such a case was relied upon it was obviously incumbent upon the plaintiff to specifically plead it, and to give the necessary particulars so that an issue might be framed, and the defendants might have an opportunity of meeting it. In this view of the matter the appellant cannot be deemed to have any grievance because the Courts below did not deal with the evidence in relation to a case which was not before them. The case as now presented is, as I have said, a new case and cannot be allowed to be made for the first time in second appeal. On the admitted facts and findings arrived at in the Courts below it is plain that the appellant has no case. The learned District Judge has found that the tenure is a ghatwali tenure, and has observed further that the arguments before him on both sides were upon that footing. The plaintiff moreover did not attempt to dispute the fact in his evidence, and Mr. Bose has admitted before us that the tenure is a ghatwali tenure. When that is established, there can be no room for doubt that the Magistrate had jurisdiction and power to dismiss the plaintiff. It is clear from the plaintiff's own admissions that he recognized the Magistrate's authority, and incidentally it may be observed that the plaintiff's conduct after his dismissal and the anxiety he betrayed to get the order of dismissal set aside by appealing to higher authorities is hardly consistent with the case which he now seeks to establish of a zamindari tenure wholly independent of the ghatwali. As I have said there can be no doubt about the power of the Magistrate to dismiss a ghatwal for reasonable cause. It has been held by the Judicial Committee of the Privy Council in Satya Narain Singh v. Satya Niranjan Chakravarti A.I.R. 1924 P.C. 5 that in construing grants of this description it should be presumed, in the absence of evidence to the contrary, that the officers of Government were acting within their authority. There is nothing here to rebut that presumption. On the other hand the admitted conduct of the plaintiff goes to show that he recognized the authority of the Magistrate. The question which then arises is as to the effect of dismissal. As to that it was held by this Court in the case of the Secretary of State v. Poran Singh  5 Cal. 740 that the dismissal of a ghatwal carries with it the forfeiture of his tenure. That case, which also related to a ghatwali tenure of the Bankura District, was very similar to the present case; see also Hemendra Nath Roy v. Upendra Narain Boy  43 Cal. 743. On behalf of the appellant, on the other hand, reliance has been placed on the case of Jogendra Nath Singh v. Kali Charan Roy  9 C.W.N. 663 but the decision there was based on an entirely different set of facts. Incidentally moreover it was held in that case that where a ghatwal has been rightly dismissed for misconduct such dismissal involves as a [necessary consequence the forfeiture of his tenure. The fact that the plaintiff was dismissed has not been disputed. Indeed he took every possible, step as previously stated, to get the order set aside. That order must be treated as final and certainly cannot be questioned in the civil Court.
11. For the reasons given I am of opinion that the suit was rightly dismissed. The appeal therefore fails and mu8t be dismissed with coats.
12. In that case of the Secretary of State v. Poran Singh  5 Cal. 740, referred to above, Jackson and Tottenham, JJ., whilst allowing the appeal and dismissing the suit, concluded by making a recommendation in favour of the plaintiff for the consideration of Government. They made the following observations:
On the whole we entertain no doubt that the plaintiff has no right to be reinstated in the ghatwali land unless the executive authorities will condone his conduct and restore him to his situation. We think that, under all the circumstances, looking to the long continuance of the ghatwaliship in the plaintiff's family, to the increase of duty, and the more disagreeable nature of that duty lately required of the ghat wals, and to the punishment the plaintiff has undergone, it would be consistent with the dignity and character of the Government to reinstate him on the occurrence of an opportunity or to allow some member of his family to be appointed in his place. But this is wholly a matter for the consideration of Government.
13. There may have been circumstances in that case which are not present in this case. But they have this much in common: that the ghatwaliship appears to have continued for a long time in the plaintiff's family. Although the plaintiff has to some extent forfeited sympathy by setting up a right which he has failed to substantiate, we nevertheless think (?) that the matter might be considered by Government, in the event of any opportunity arising for re-appointment of the plaintiff. This however is of course, entirely a matter for the consideration of Government and we merely offer the suggestion for its consideration should the opportunity occur.
14. I agree.