1. The plaintiffs in this case are the maternal grandsons of one Gobindram Audhikari; their father was Abhoy Chunder Bhuttacharji, who married Tarani Debya, Gobindram's daughter.
2. Gobindram had also two sons, viz., Shafalram, the elder, and Shagur Churn, the younger; these two brothers were separate.
3. Shagur Churn died first, leaving his widow Kumari Debya and two daughters, Shama Sundari and Durgamoni Debya. Durgamoni died childless, and Kumari Debya died in 1272. Shama Sundari died in 1280; she had two sons, viz., Fakir Chand, defendant No. 1, and Romanath, the father of defendants 2 to 7.
4. Shafalram died leaving no son, daughter or wife, and Abhoy Churn, the father of the plaintiffs, was his heir.
5. The common ancestor, Gobindram, was in possession of 100 bighas 14 chittaks of rent-free land in Shebaiti right. Of this 50 bighas 7 cottahs was the share of Shafalram and 50 bighas 7 cottahs the share of Shagur Churn. The two brothers collected the rents of their respective shares and performed the daily worship of the Thakur in turn.
6. Upon the death of Shafalram, Abhoy Churn, the father of plaintiffs, inherited Shafalram's 50 bighas 7 cottahs, and living at a distance and finding it inconvenient to manage the colleotion of rents and the worship he granted a lease of 42 bighas 15 cottahs 7 chittaks to Kumari Debya at an annual rent of Rs. 15 and held only 7 bighas 5 cottahs in khas possession. The lease was dated 26th Bysack 1242.
7. Kumari Debya paid the rent due under the lease down to her death in 1272; Shama Sundari paid it from 1272 down to her death in 1280, and after her death her sons, Fakir Chand, defendant No. 1, and Romanath, father of defendants 2 to 7, paid it down to 1287.
8. Of the aforesaid 100 bighas 14 cottahs, 10 bighas 12 cottahs were confirmed lakhiraj, and the plaintiffs applied under Beng. Act VII of 1876 to have their names registered as maliks in respect of 5 bighas 6 cottahs. This application was opposed by the defendants (who were in possession of the 42 bighas 15 cottahs 7 chittaks leased to Kumari and also of the 50 bighas 7 chittaks which had belonged to Shagur Churn), and was refused by the Deputy Collector on 3rd September 1883; and his decision was confirmed on appeal on 3rd December 1883 ; and the defendants' names were registered in respect of the whole 10 bighas 12 cottahs confirmed lakhiraj. The plaintiffs then brought this suit asking, for 'a declaration of their maliki right to 42 bighas 15 cottahs 7 chittaks of land out of a moiety of the 100 bighas 14 chittaks,' and 'further directing the registration of their names in respect of the 5 bighas 10 cottahs of confirmed lakhiraj (measuring 5 bighas 6 cottahs according to the new measurement) by setting aside the order passed in the registration of name case.' Both the lower Courts have given a decree in favour of the plaintiffs.
9. On second appeal the learned Counsel for the defendants-appellants has raised a point, which, as far as we can see, was not raised in argument in either of the lower Courts, and which is clearly not raised in their written statement. Now I do not go so far as to say that under no circum stances will a special appellant be allowed to raise an entirely new point on second appeal, but I do say that he should not be allowed to raise such new point if it is one for the right determination of which it is necessary to go into evidence which has not been produced in the lower Courts, or unles3 it is a pure point of law going to the question of the jurisdiction of the lower Courts and capable of being determined without the considera tion of any evidence other than that on the record. Nor do I say that this Court is bound to consider such new point even if it falls within either of the above exceptions: it is a pure matter of discretion.
10. One manifest inconvenience arises from allowing entirely new points to be raised on second appeal-the absence of what the Court always values-the intelligent; judgments on the Judges of the lower Courts.
11. The point raised by the learned Counsel for the appellants was a pure point of law, going to the question of jurisdiction and capable of being determined without the consideration of any evidence other than that on the record. The point was that the plaintiff's were not entitled to the declaratory relief they sought by reason of the proviso to Section 42 of the Specific Relief Act, that being the section under which their suit was brought. To determine this point it is necessary, I think, to look some what closely at the words of Section 42. The section says: 'Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration when the plaintiff being able to seek further relief, than a mere declaration of title, omits to do so. 'Now, as regards the 42 bighas odd, it is argued that the plaintiffs in this case are not entitled to the declaratory decree they ask for, because there was a ''further relief' which they could have sought in this suit, and which they have omitted to do. That 'further relief' is said to be the arrears of rent due from the defendants under the settlement made with Kumari Debya. If this contention is true, a claim for arrears of rent is 'further relief' within the meaning of the proviso to Section 42, then it would follow that as regards the 42 bighas odd no declaratory decree could be made. But that would still leave undisposed of the question of the decree sought with regard to the 5 bighas 6 cottahs of confirmed lakhiraj land. We do not however think that a claim for arrears of rent is such 'further relief as is contemplated by the proviso to the section.
12. The 'further relief' referred to in the proviso is, we think, 'further relief' in relation to 'the legal character or right as to any property which any person is entitled to, and whose title to such character or right any person denies or is interested in denying.' The recovery of arrears of rent in this case would only determine that during the years in respect of which the arrears were recovered the relation of landlord and tenant bad existed between the parties, that the rent was so much, and that it had not been paid. But even supposing that a claim for arrears of rent is 'further relief' within the meaning of the proviso, it is clear that it is not 'further relief' which could have been sought in the suit. The provisions of Section 78 of Bengal Act VII of 1876 prevent the recovery of such arrears until registration of names is complete.
13. This point alone is in our judgment sufficient for the determination of the case. It is not clear, upon the plaint and written statement and the judgments of the Courts below, whether, as a matter of fact, there were two separate applications to register-one in respect of the mal, and another in respect of the lakhiraj land. We are inclined to agree in the view presented to us by the learned Counsel for the appellants that, as a matter of fact, there was but one application, and that was in respect of the lakhiraj land. But whether that is so or not, and whether it makes any difference in the plaintiff's position, it is not necessary to inquire, for the point was not taken in the Courts below, and we do not think we ought to allow it to be taken here. We are also of opinion that it may fairly be assumed that if the plaintiffs' title with regard to both the mal and lakhiraj land rested on the same basis, and if the defendants were interested in denying and did, as a matter of fact, deny the plaintiffs' right to have their names registered with respect to the lakhiraj land, they were certainly persons who were interested in denying the plaintiffs' legal character or right in respect of the mal land.
14. These being our views, we think that this appeal ought to be dismissed with costs.