Richard Garth, C.J.
1. In this case, which is somewhat similar in its nature to others which have been appealed from the Assam Valley Districts, we are sorry to find that the District Judge has again taken an erroneous view of the law.
2. The plaintiff sued to have it declared that he is entitled to an eight-anna share in certain immoveable property, and to have his name registered as the owner of that share in the Revenue Court.
3. His case is, that his father was the owner of the property in question, and that he and his brother, the defendant No 1, inherited it in equal shares. At the time of his father's death, which occurred on the 2nd of Joisto 1277 (17th May 1870), the plaintiff and his brother were both minors, and consequently their step-mother, Chunder Coomary, who appears to have acted as their guardian, had her name recorded in the Revenue Court as the owner of one portion of the property, whilst another portion remained in the name of the plaintiff's father, to whom a pottah had been granted.
4. Chunder Coomary died whilst the plaintiff was still a minor, but his brother, the defendant No. 1, had then attained majority, and he became the plaintiff's guardian after the step-mother's death.
5. He then applied to the Judge's Court for a certificate authorizing him to collect the amounts due to their father; and taking advantage of his position as the plaintiff's guardian, he also applied to the Collector to have his name recorded as the sole owner of the property, which stood in the names of Chunder Coomary and of his father. His application was granted, and he obtained a pottah, conveying the property to himself alone.
6. The plaintiff then says that afterwards upon attaining his majority, he separated from his brother, the defendant No. 1, on the 25th of Pous 1285 (10th January 1879); and that he has since been in ijmali possession of a share of the lands in suit.
7. He then alleges that the defendant No. 1, with a view of excluding him from his interest in those lands, took proceedings in his own name to eject the tenants; whereupon the plaintiff, for his own protection, applied to the Revenue Court to have his name registered as the owner of an eight-anna share in the property; but in consequence of objections raised by the defendant No. 1 the Deputy Commissioner refused to register him.
8. He then appealed to the Commissioner, who confirmed the order, but advised the plaintiff to bring a civil suit. This was no doubt his proper remedy; and he did bring this suit on the 2nd of July 1880. The defendant No. 1 alleges (amongst other things) that the plaintiff has no interest in the lands in suit.
9. The Assistant Commissioner, after going into the case very carefully, decided in the plaintiff's favour, and gave him a decree, declaring that he was entitled to an eight-anna share of a part of the property in question, and to have his name registered as the owner of that share.
10. The defendant No. 1 appealed from that decree; and the District Judge, apparently without going into the evidence, or considering the judgment of the first Court, held that the plaint disclosed no cause of action, and refused to try the appeal upon its merits.
11. The District Judge goes on to say, what of course is very true in a literal sense, that the Civil Court has no power to make a binding order upon the revenue authorities in the manner prayed for in the plaint; but I think if he had only exercised a little of the discretion, which was shown by the first Court, he would have had no difficulty in making such a decree as would have given the plaintiff all the relief which he could properly ask, if after an investigation on the merits he considered him entitled to it; that is to say, a decree declaring what his rights were, leaving it to the revenue authorities to register him, if they thought fit, in respect of those rights.
12. Suits of this kind are extremely useful, and of every-day occurrence in this province. It no doubt sometimes happens that plaintiff's, through ignorance or mistake, ask for an order upon the Collector, which the Civil Courts have no power to make; but that is a mere formal error, which it is the duty of the Judge to correct; and if he finds upon the evidence that the plaintiff is entitled to the right which he claims, and that the case is one in which a declaratory decree can legally be made, he ought to make such a decree, and then leave it to the revenue authorities to do their duty in the matter.
13. I observe the District Judge says, that 'the revenue authorities in Assam are not legally bound to register the names of all the joint shareholders in a pottah.'
14. I can only say that if this is so, and if the revenue authorities in Assam are at liberty to prefer the claims of any one shareholder in a property, and to register him as the sole owner, to the exclusion of the others, notwithstanding any declaration which may be made by the Civil Court to the contrary, I am afraid that the Revenue Court, instead of being of any service to the public, must of necessity often become an instrument of fraud and oppression; and if that is the state of the law in Assam, I think the sooner the notice of the Supreme Government is called to it, the better.
15. It is not, of course, the province of the Revenue Court to decide questions of title between contending claimants. It has neither the knowledge of law, nor the proper machinery, to decide such questions. That is obviously the province of the Civil Courts; and their duty, as I understand it, is to declare the rights of parties, in order that the revenue authorities may be duly certified as to the person whom they ought to register.
16. Unless this were so, I see no reason why the Collector or the Commissioner in Assam should constantly refer parties, (as the Commissioner has done in the present instance), to the Civil Court. It would seem nothing short of mockery to refer a claimant to the Civil Court, and when he has sued there, and had his rights declared, to inform him that the Revenue Court cannot recognize those rights.
17. The plaintiff in this case has sufficiently explained his title upon the face of his plaint. He has shown how those rights are likely to be jeopardized by the exclusive claim to the property which is made by his brother, and the proceedings which the latter has taken with a view to exclude him from his property. It is obvious from the written statement of the defendant No. 1, and from the judgment of the first Court, that the latter denies the plaintiff's title, and means to oust him if he can, and the case is therefore one which comes directly within the scope of Section 42 of the Specific Relief Act.
18. The case must therefore be remanded to the lower Appellate Court, in order that the merits of the case may be properly investigated, and the plaintiff's rights declared with a view to registration.
19. There is nothing in the case referred to by the District Judge which is opposed to this view, because in that case, as explained by the High Court, the plaintiff was not in a position to sue for declaratory decree.
20. There have been several other cases since the year 1879, which have come up in appeal from Assam, and in which, I regret to say, this Court has been constrained to express its disapproval of the law which has been laid down by the District Judge. (See Kalindri Dabia v. Komola Kanto Surma I.L.R.; 7 Cal. 437; Hootaboo Ravah v. Loom Ravah I.L.R. 7 Cal. 440. Beejoy Keot v. Goria Keot I.L.R. 7 Cal. 439; Purnamal Deka Kohta v. Mayaram Deka Kohta; and 10 C.L.R. 201; Shiboram Surma v. Juggeram Surma (No. 138 of 1881 not reported).
21. The costs in this Court and in the lower Appellate Court will abide the result.