1. There can be no doubt whatever that under the ijara the plaintiff from the time the ijara term commenced, and whilst that term lasted, was, and is, the only person capable of granting a valid lease to tenants, or making any valid arrangement as to the collection of rents. The zemindar has granted to the plaintiff for fourteen years his zemindari, 'together with the rights.' There is nothing to show that the zemindar intended to retain to himself the power of making any settlements with the tenants or the monduls during the term; on the contrary it is expressly said--'You have during the term power as complete as my own to make settlements in the said zemindari,' the only qualification added being that these settlements shall not be injurious to the Rajah's reversionary interest. It would require very clear words to qualify this express power, and there are no such words in the document.
2. His Lordship then referred to the terms of the pottah, especially to the stipulation, whereby the first defendant's rent was to remain unchanged during the existence of the lease, and continued: This is a stipulation which the Rajah had no power whatsoever to make. Indeed, the Legal Remembrancer, who appeared in this Court for the minor defendant, has expressly abandoned the right to interfere between the ijaradar and the tenants; and much unnecessary litigation might have been saved if this abandonment had been made earlier.
3. It is, however, argued for the minor defendant, that the late Rajah did not, by granting the lease, assume to exercise the power of making settlements with the tenants generally, but that by one of the clauses in the ijara lease, he was allowed six months to adjust the rent-roll, so as to show a mofussil jama of Rs. 35,000, and that, in pursuance of this understanding, the rent of the defendant, Suroop Mahto, was adjusted within the time specified, and that the pottah granted to this defendant merely embodies the terms of the adjustment.
4. The answer to this is two-fold. First, what is here called the 'adjustment' did not in fact take place within the time specified. The time specified in the ijara lease was the six months' interval between the execution of the ijara and its taking effect. Secondly, the Munsif has found that what was done was not any adjustment of the old payment but the fixing of a new payment, and this finding remains undisturbed; to which may be added that the clause, which this pottah contains prohibiting future enhancement, cannot possibly be called 'adjustment.' * * * *
5. It was, however, said that, even if the Rajah had no power to make this settlement, either as zemindar or under the clause of the ijara lease requiring him to show a mofussil jama of Rs. 35,000, still this suit would not lie; that, in this view, the pottah sought to be set aside was a nullity, that it had not yet been set up against the plaintiff, and that he had been in no way injured by it.
6. With regard to the question of injury, there is no finding in this case that the plaintiff has as yet suffered any actual injury for which he could have claimed compensation in the way of damages. But we entirely dissent from the argument on the part of the minor defendant, that the making of this pottah was beneficial to the plaintiff, or that it Was executed with the object that it should be so. It is admitted now that the Rajah could not, at the end of the six months, show a rental of Rs. 35,000. By granting pottahs to the tenants, similar to the one in this case, he tried to raise the rental to the required amount, hoping thereby to escape the penalties which he incurred under the ijara lease. There can be little doubt that he prevailed upon the tenants to accept this advance on the old rents by offering them some kind of advantageous provision in the pottah granted. In the present case, the advantage held out to the tenant was that his rent should not be. increased during the term. We think the assertion contained in the pottah that it was granted for the purpose of effecting a mukabulla, was a mere pretence and. rather a shallow one. We think this is what is meant by collusion in the plaint, and that to that extent it is (as found by the Munsif) established by the avidence.
7. It also seems to be clear that, although the right to make settlements with the tenants after ijara term commenced is not now asserted on behalf of the minor defendant, the plaintiff, upon coming to know that pottahs had been granted after that time, had a right to treat such a proceeding as a violation of his rights under the ijara, which, in my opinion, in fact it was. On the other hand, it was never expressly admitted in this case that this pottah was a nullity, until the close of that argument in this Court. It was in the first instance submitted to the Court to say whether it was or was not a valid document. Subsequently this attitude was departed from, and the validity of the pottah was strenuously asserted and maintained. The grounds upon which its validity was maintained have now been overruled.
8. Nor, as far as the minor was concerned, was any objection raised in the first Court to the suit being tried. On the contrary, Mr. Harrison said, if the pottahs granted to the ryot and jote monduls be held by the Court as contrary to the conditions of the ijara pottah, and be on that account set aside, I have no objection thereto. But the ijara pottah, which has been granted to the plaintiff, is not an ordinary ticca ijara pottah, and it is, therefore, difficult to give a reasonable interpretation to it. I, therefore, pray that the Court will be pleased to take into its consideration the undermentioned facts, in ascertaining what interpretation it is necessary to give to the plaintiff's ijara pottah, in order to pass a judgment on the pottahs granted to the ryots and jote monduls.' In all probability Mr. Harrison thought it convenient for the minor that the question should be once for all determined.
9. It is also admitted that a very large number of pottahs have been granted under circumstances similar to the present, the validity of all of which is in dispute and must be determined in some way or other. It is certainly desirable that the power of the Rajah to grant these pottahs should be discussed and determined before the plaintiff takes proceedings against the tenants. There is every probability that, when this point is finally decided in one case, it will not be again litigated.
10. We advert to these circumstances to show that there are reasons why it is desirable to give in this suit a decree which will declare the rights of the plaintiff and the minor defendant respectively, and why it would be a hardship now to hold that the suit does not lie. We cannot, of course, give a decree, however desirable it may be in this particular case, if the law does not permit us to do so.
11. It is now the settled law that, in the Courts of this country, 'a declaratory decree cannot be made, unless there be a right to consequential relief capable of being had either in the same Court or in certain cases in some other Court'--Strimathoo Moothoo Vijia Ragoonadah v. Dorasinga Tevar 15 B.L.R. 106. But in laying down this rule, we do not understand it to have been the intention of the Privy Council to deny to the Courts of this country the power to grant decrees in any case, in which, independently of the provisions contained in Section 15 of Act VIII of 1859, these Courts have power to grant a decree. It is, therefore, necessary to see what that power is. Now, in this Court, the power is generally the same as that of the Court of Chancery in England. That was the power of the Supreme Court, and it is continued to this Court. And I do not think there is any valid ground for holding that the Courts of the mofussil have a jurisdiction in this respect different from or less than that of this Court. At any rate, in the absence of all special provision or authority upon the subject, it would be difficulty to suggest any other guide than the practice of the Court of Chancery in England, and according to the best information we are able to obtain the Court of Chancery in England would in such a case as this entertain the suit. The cases in the Privy Council also support this view. In the case of Thakoor Deen Tewarry v. Nawab Syed Ali Hossain Khan 13 B.L.R. 427 : S.C.L.R. 1 Ind. App. 192 the plaintiff, alleging himself to be in possession, obtained a decree to set aside a deed executed by a deceased person in favour of the defendant. The plaintiff claimed to be the heir of the deceased; the defendant, who was in possession, claimed to hold the property under the deed. The Privy Council say 'the plaint prayed that the deed might be set aside, which is a prayer for substantive relief.' In another recent case, the Privy Council said, speaking of the claim of the plaintiff in that suit, 'his requisition of a declaration of a mal title, by setting aside the false brahmottra title alleged by the defendants, is really no more than this, that he should have his title, whatever it was, as a zemindar, free from the allegation of the defendants that they had some other title. If he had applied to set aside a deed set up by the defendants impugning his ordinary title as zemindar, then relief might be granted to him by cancelling that deed; but he cannot obtain relief in the shape of merely setting aside an assertion, which for all that appears may have been merely by word of mouth' Rajah Nilmoney Singh Deo v. Kalee Churn Bhuttacharjee 14 B.L.R. 382.
12. In Maharajah Rajundur Kishwur Sing Bahadoor v. Sheopursun Misser 10 Moore's I.A. 438 the Privy Council dealt with the case of a tenant of a portion of a zemindari who set up against the zemindar a holding different from that which was his true holding, and it seems to be considered that this was an interference with the zemindar's possession for which a suit would lie. Their Lordships say, ' if this tenure be not interposed between the zemindar and the cultivators, the ordinary relation between him and them exists; but if it be interposed, the zemindar's general proprietary title to the collections is gone, and in lieu of it he is simply entitled to some jama from the mesne proprietors. It is obvious, then, that the assertion of such a title is a serious prejudice to a zemindar, and may materially interfere with the successful management of his zemindari. Such an intermediate tenure cuts off the possession, that is the zemindar's title to the rents and profits immediately derived from the cultivators '(10 Moore's I.A. 449). In the earlier case of Kamala Naicken v. Pitchacootty Chetty 10 Moore's I.A. 386 the facts were somewhat similar to the present. A zemindar, after granting to the plaintiff a lease of his zemindari, issued notices to the tenants not to pay the rents to the lessee. No other interference with the rights of the lessee appears to have taken place, and no actual refusal to pay rent appears to have been alleged. The High Court gave a decree, declaring that the plaintiff was entitled to specific performance of the lease and to the possession and enjoyment of the zemindari under the terms of the lease. The Privy Council did not approve of the declaration as to the specific performance, but affirmed the rest of the decree.
13. These cases appear to us to justify this Court in making a decree in this case.
14. The plaintiff has not asked for any injunction, though probably he might have done so, and only asks that the pottah should be set aside as against him. We think a decree substantially to that effect may be made. The decree of the lower Appellate Court dismissing the suit will therefore be set aside, and, instead thereof, there will be a decree in the following form: that the pottah of 29th Srabun 1280 granted by the Rajah to the defendant No. 1 be as between the plaintiff and the defendants in this suit set aside, and the plaintiff declared entitled to the possession and enjoyment of the zemindari under the terms of the ijara lease of the 12th Falgoon 1279 the aforesaid pottah notwithstanding.
[Section 15: No suit shall be open to objection on the ground that a merely declaratory
Declaratory Suit. decree or order is sought thereby, and it shall be lawful for the
Civil Courts to make binding declarations of right, without granting