1. This is an appeal from the decree of the District Judge of Sambalpur, confirming the decree of the Subordinate Judge of the same district.
2. The land in dispute is situated in the District of Sambalpur and in matters pertaining to the land revenue is governed by the Central Provinces Land Revenue Act (XVIII of 1881) The dispute relates to an entry made in a Record of Rights prepared under Chapter VI of that Act. The entry describes the appellants as shikmi gaontias or permanent tenants under the plaintiffs, who are the gaontias of the village. At this stage of the litigation it is very properly conceded that if it is open to the plaintiffs to contest the correctness of the enter, the entry is wrong, the lease granting the appellants a permanent tenancy having been judicially set aside. On the other hand it is not denied that the appellants are entitled to possession as mortgages. In substance, therefore, the plaintiffs seek to have the entry amended so that the appellants may be described as mortgages an not as permanent tenants.
3. The suit was instituted by the plaintiffs and dealt with by the Court below as a suit under Section 83 of the Land Revenue Act. On that footing the principal question which arises is, whether a suit under Section 83 is subject, as regards limitation, to Article 4 or to Article 120 of the Schedule of the Limitation Act. Article 14 applies 'to suits to set aside any act or order of an officer of Government in his official capacity' and the period of limitation provided is one year from the date of the act or order. Under the omnibus Article 120 the period of limitation is six years from the time when the right to sue accrues. Section 83 enables a suit to be brought to have entries in a suit to be brought to have entries in the Record of Rights relating to certain specific matters 'cancelled or amended.' We are not concerned with the rest of the enabling clause or with rest of the enabling clause or with the two provisos For the appellants it is contended that an entry in a Record of Right is an 'act' or 'order' of a Government officer and that as Section 83 in effect authorizes the Civil Court to set aside such act or order in certain cases, the present suit, if it falls within the section, must be governed by Article 14. The argument is directed to the distinction suggested by reported cases between a power on the part of the Civil Court to make a decree which is merely declaratory of the plaintiff's rights and a mere basis for further proceedings before some Revenue or other officer and a power to make a decree which positively sets aside and nullifies something which an officer of Government has done. In illustration reference may be made to Agin Bindh v. Mohan Bikram Shah 30 C. 20 at p. 27 : 7 C.W.N 314 and Parbati Nath v. Rajmohun Dutt 29 C. 367 : 6 C.W.N. 92. The appellants would have it that the decree made below are decrees of the latter class, and if it be assumed that the disputed entry is an 'act' or 'order' which has been set aside, the language of Section 83 lends some colour to the contentions advanced. But Section 83 must be read, in my opinion, as the lower Courts have read it. With Section 120 and 152. The Record of Rights in question has been made over to the Deputy Commissioner and Section 120 gives the Deputy Commissioner power in such case to correct any entry on certain grounds of which one is the following:
(b) that by a decree in a suit under Section 83 it has been declared to be erroneous.
4. This provision shows that a suit under Section 83 is in the nature of a declaratory suit and that though the section speaks of a suit under it as a suit to have an entry cancelled or amended, the Civil Court can only declare that he entry is erroneous and how it should be amended, buy cannot execute its decree by bringing the Record of rights into court and altering it. The decree has to be taken to the Deputy Commissioner. This conclusion is confirmed by Section 152, Clause (b) which deprives the Civil Court of jurisdiction over certain matters including '(12) correction of entries or revision of records under Section 120, 121 and 122.
5. No case is precisely in point was cited at the Bar, but perhaps the most in point is that Faki Ghulam Mohidin v. Sajnak 18. 244. IN my opinion the suit is not governed by Article 14 but Article 120 and is with in time.
6. A further point however was taken before us. It is not taken in the Courts below but as it raises a question of jurisdiction we have to notice it. It is now suggested that the suit is not within Section 83 at all and that the Civil Courts had no jurisdiction. Under Section 83 a Civil Court has jurisdiction in respect of entries as to any matter referred to in Section 78. Section again relates back to a number of sections of which Sections 68 and 72 may be mentioned. Section 68 directs the Settlement officer to ascertain the persons who are possession as proprietors of each mahal. 'By definition the word proprietor' includes for most purposes a gaontia? [Section 4 Clause 8 (a)], and is also to be deemed to include an assignee of proprietary rights' (Explanation II of Section 4A). An 'inferior proprietor is not, as such, a tenant' (Section 4, Clause 14). Now, if a permanent tenure-holder such as a shikmi gaontia is in respect of his tenants a proprietor, though, it may be, an inferior proprietor, the question whether the defendants are in possession as permanent tenure-holders or merely as mortgagees, is apparently within the scope of Section 68. It seems reasonable prima facie that the section should extend to the ascertainment of the character of the proprietary possession and the language seems sufficiently wide to admit of a construction which would bring such a question within its scope. Under Section 72, again, the Settlement Officer is to ascertain and record for each mahal the status of all tenants occupying land therein, the lands respectively held by them, the conditions on which they respectively hold such lands, and the rents (if any) payable by them respectively.' Under this section the question whether a particular person is or is not a tenant is a question which must be open to the Settlement Officer in connection with the entries which the Section 72 requires to be made. The determination of that question is a necessary preliminary. If, therefore, a permanent tenure-holder is qua the superior landlord a tenant,' the Settlement officer had jurisdiction to decide for the purpose of the preparation of the Record of Rights who the defendants could properly lay claim to such a status. The conclusion is that in deciding the question between the parties or in making the disputed entry in the record of Lights the Settlement Officer acted either under Section 68 or Section 72 and his decision, or the entry, was open to review by the Civil Courts under the terms of Section 83. The contention on the contrary urged for the first time in this Court, therefore, fails.
7. The decrees of the Courts below are in a proper declaratory form and in the result this appeal must be dismissed with costs.
8. I agree.