Gopendranath Das, J.
1. This appeal is on behalf of the plaintiff in a suit for apportionment of rent and for possession of C.S. Dag No. 1326 on declaration of the plaintiff's title thereto and for an in-junction. There were two holdings held by Sashi the father of defendants 2 and 3, namely a 'holding of 9 bighas 13 cottahs bearing a rental of Rs. 47-4-3 and a holding of 8 bighas 2 cottahs tearing a rent of Rs. 40-0-9. Both these holdings were held under defendant 1. On 5-9-1933 the plaintiff alleges to have purchased 7 bighas 5 cottahs and 8 chattaks of land out of the first holding and 7 bighas and 8 chattaks out of the second holding. In the kobala which was marked as Ex. 1, proportionate rentals of the first and second holdings were stated to be Rs. 85-7-9 and as. 34-10-3. The plaintiff claimed, therefore, to have acquired by purchase from Sashi 14 bighas and 6 cottahs of land at a proportionate rental of as. 70-1-14 gandas. The plaintiff's allegation is that he obtained a kharij of the land acquired by purchase, from the landlord, defendant 1. It is not clear from the plaint whether at the time of kharij the estate of defendant 1 was under the charge of the Court of Wards or not. As the plaintiff failed to get possession of about 18 ecttahs of land he started Title Suit No. 180 of 1938 against Sashi. During the pendency of this title suit, the O.S. record was prepared. Inc. S. Khatian No. 173 a jama of Rs. 70-1-14 gandas was recorded in the name of plaintiff under defendant 1 in respect of an area of only 11 bighas and 12 cottas. The title suit referred to above was decreed thereafter. The plaintiff's ease is that the settlement record of rights was erroneous inasmuch as it failed to record in his name as appertaining to the jama of Rs. 70-1-14 gandas the lands claimed in the title suit as also fehe lands covered by O.S. Dag No. 1326. The plaintiff further alleged that he was in possession of a de licit area of 1 bigha 19 cottas and 8 chattaks. He, therefore, prayed that the rent of the lands should be apportioned and the rent reduced to Rs. 60-15-14 gandas in place of Rs. 70-1-14 gandas. Defendant 1 filed written statement and alleged that the C.S. record was correct and that the plaintiff, did not purchase 14 bighas and 6 cottahs as alleged by him, the area having been misstated in the kobala. Defendants 2 and 3 filed a separate written statement and they denied the plaintiff's title to S.C. Dag No. 1326.
2. The trial Court dismissed the plaintiff's claim as regards C.S. Dag No. 1326 and held that the plaintiff was liable to pay the rent of Rs. 59-1-4 gandas in respect of Itema 1 to 13 of the properties mentioned in the plaint. Against she judgment and decree of the trial Court, an appeal was taken by defendant 1. The plaintiff preferred a cross-objection as regards C.S. Dag No. 1326. The lower appellate Court allowed the appeal and dismissed the cross-objection, In the result the plaintiff's suit was dismissed.
3. The lower appellate Court has held; (1) that the suit is bad for non-service of notice under Section 80, Civil P.C. (2) that a further sum of Rs. 15 was payable as additional court-fees on the plaint; (3) that the suit was barred under Section 88 (2), Ben. Ten. Act; (4) that the plaintiff had taken possession of the valuable lands of the two tenancies and that there was no reason for apportioning the rent.
4. Against the judgment and decree of the lower appellate Court, the plaintiff has preferred this appeal. Before I deal with the contentions raised by Mr. Janah appearing on behalf of the appellant I shall refer to a point raised by Mr. Mukherjee appearing on behalf o defendant 1. His contention is that the remedy of the plaintiff to get the holding sub-divided and rent apportioned is not by way of a suit but by way of an application. The lower appellate Court negatived this contention of defendant 1 by merely stating that 'as an application lies so a suit also lies.' In my opinion, the view so taken by the lower appellate Court is not correct.
5. In order to appreciate the contention raised it is necessary to set out the history of the law relating to sub-division, of tenancies. The earliest legislation regarding sub-division of tenancies in Bengal is contained in the proviso to Section 27 of Act 10 [x] of 1859 and Section 26 of Act 8 [VIII] B.C. of 1869 which was to the effect.
that no zemindar or superior tenant shall be required to admit to registry or give effect to any division or distribution of the rent payable on account of any such tenure, nor shall any such division or distribution of rent be valid and binding without .the consent in writing of the zemindar or superior tenant.
The proviso refers merely to the case of subdivision of tenancy by agreement of parties. In Ruheemuddy Akun v. Poorno Chunder ('72) 22 W.R. 336 it was held by this Court that neither the tenant nor the landlord can split up existing tenancies and redistribute the lands so as to alter their nature and extent without their mutual consent.
6. The law was amended and clarified by the Bengal Tenancy Act, Act 8 [VIII] of 1885 and was further amplified so far as West Bengal is concerned by Act 1 [I] B.C. of 1907.
7. Act 4 [IV] B.C. of 1928 which came into force on 21st February 1929 provided for the first time against unreasonable withholding or granting of consent on the part of the landlord or co-sharer tenants to a division of the tenancy or distribution of the rent and gave the aggrieved tenant a remedy in a civil Court by an application on the terms and conditions as specified in that section (Section 88?). The law was? further extended by Act 6 [VI] B.C. of 1938 which came into force on 8th August 1938. By this Act the right of appeal against an order of sub-division of a tenancy was given. By Act 15 [xv] B.C. of 1940 the section was expressly made applicable to patni tenure and Section 6B was added to Regulation VIII of 1819. The question therefore arises whether the remedy so given by the Act of 1928 is an exclusive remedy and bars a suit. In Wolverhampton New Water Works Co. v. Hawksford (1859) 6 C.B. (N.S.) 336 at page 356, Willes J. deals with three classes of liabilities: (1) cases where there was a pre-existing liability recognised by common law and affirmed by statute; (2) where the statute creates the right but does not prescribe any remedy and (3) where the statute creates the right and prescribes the remedy. In the third class of cases Willes J. observed:
Where the statute creates a liability not existing at common law and gives a particular remedy for enforcing it... with reference to that class it has alwnys been held that the party must adupt the form of remedy given by the statute.
In my opinion, the present case falls within the third class and the remedy given by Section 88, Ben. Ten. Act, must be deemed to be exclusive. To the same effect are the following observations of Jenkins C.J. in Bhaishanker Nanabhi v. Municipal Corporation of Bombay ('07) 31 Bom. 604:
It is an essential condition of those rights that they should be determined in the manner prescribed by the Act to which they owe their existence. In such a case there is no ouster of the jurisdiction of the ordinary Courts, for they never had any; there is no change of the old order of things, a new order is brought into being.
In Bhandi Singh v. Ramadhin Rai ('06) 10 C.W.N. 991 at page 997, his Lordship (Mookerji J ) observed that:
It is an elementary rule of construction of statutes, as stated by Lppes L.J in R. v. County Court Judge of Essex (1887) 18 Q.B.D. 704 at page 708 that in the case of an Act which creates a new jurisdiet on a new procedure, new forms or new remedies the procedure, forms or remedies there prescribed and no others must be followed.
The principle enunciated by Willes J. in Wolverhampton New Water Works Co. v. Hawksford (1859) 6 C.B. (N.S.) 336 is has been applied by the Judicial Committee in Secretary of State v. Mask and Co. 27 A.I.R. 1940 P.C. 104. In my opinion, the present suit which is essentially a suit for apportionment of rent on sub-division of two tenancies is not maintainable and the remedy of the plaintiff was by way of an application This disposes of the appeal but as certain other points were decided by the Court of appeal below and urged in this Court it is necessary to dispose of those points, on which the lower appellate Court found against the plaintiff.
8. The first point on which the lower appellate Court non-suited the plaintiff is the non-seivice of the notice under Section 80, Civil P.C. Defendant 1 is the Manager of the Court of Wards and the first question which arose for decision is whether the Manager of the Court of Wards i-a public officer as defined by Section 2, Clause (17), Civil P.C.
9. Mr. Mukherjee contends that the Manager of the Court of Wards is an officer in the service or the pay of the Crown and comes within Section 2 (17)(h), Civil P.C. In support of his submission he relies on the decision of Edgley J in Gokul Chandra Das v. Manager of the Baniachong Mazumdari Wards Estate : AIR1939Cal720 . In that case Edgley J. was of the opinion that the Manager of the Court of Wards is not in the pay of the Government but is in the service of the Government.
10. Mr. Janah appearing on behalf of the plaintiff-appellant has contended that that decision has lost its force because of the amendment of Section 2 (17)(h), Civil P C., where by the Government of India (Adaptation of Indian Laws) Order, 1937,'the word 'the Crown' was substituted for the words 'the Government.' In my opinion this substitution does not affect the question. Mr. Janah relies on the decision of Walmsley J. in Nanda Lal Bose v. Ashutosh Ghosh 7 A.I.R. 1920 Cal. 167 Kdgley J. before whom the case was cited refused to follow it on the short ground that Walmsley J. gave no reason for his conclusion that the Manager of Court of Wards was not a public officer. I have considered the matter and for the reasons which I shall presently give I respectfully agree with the view taken by Edgley J. in Gokul Chandra Das v. Manager of the Baniachong Mazumdari Wards Estate : AIR1939Cal720 . The; Manager of the Court of Wards draws his salaryj from the estate of the wards and is not paid out of the public treasury and as such he cannot be said to be in the pay of the Government or the Crown the Manager of the Court of Wards is, however, appointed by the Court of Wards under Section 20, Court of Wards Act. His duties are provided by Sections 40 and 41 of the Act. He is subject to the control of the Court of Wards and he is liable to account to the Court of Wards-and in particular, responsible for any loss occasioned to the property of the ward by reason of his wilful default or gross negligence. Sections 4T and 68 confer on the Court of Wards drastic powers of bringing the manager to book if he does not properly account for the properties of the ward. He is, therefore, an officer of the Court of Wards. The question, however, remains whether he can be regarded as being in the service of the Crown. In order to answer this question, it is necessary to explore the nature of the jurisdiction exercised by the Court of Wards. The Crown is the pater fannlias of abnormal persons, for example, minors, lunatics, pardanashin ladies or other disqualified proprietors. In the public interest, the Crown takes charge of the properties of such abnormal persons. The Crown also takes charge of the properties of such abnormal persons to safeguard the payment of Government revenues. The jurisdiction of the Court of Wards is therefore, exercised for the protection of the Government revenue in the public interest and for exercising the prerogative rights of the Crown to protect all abnormal persons. It is really the exercise of the Sovereign power as representing the Crowns. The Court of Wards discharges the functions enjoined by the Act: I think that the Manager of the Court of Wards can very well be said to be in the service of the Crown. This view receives support from the definition of the word 'public service' which is to be found in vol. III of Judicial and Statutory definition of Words and Phrases compiled by the Editorial Staff of the American National Reporting System which is as follows:
Public Office is the right, authority and duty created and conferred by law by which for a given period either-fixed by law or ending at the pleasure of the creating power, an individual is vested with some portion of the sovereign functions of the Government either executive, legislative or judicial to be exercised for the benefit of the public.
I bold, therefore, that the Manager of the Court 'of Wards must be regarded as public officer (within the meaning of Section 2 (17)(h), Civil P.C. The question then arises as to whether the non-service of a notice under Section 80, Civil P.C., was fatal to the suit. In the plaint the plaintiff prayed for an apportionment of rent in respect of the land purchased by him and as ancillary thereto for declaration of title to C.S. lag No. 1326 and for possession thereof. There was a further prayer for a temporary and permanent injunction restraining defendant 1 from executing the decree which defendant 1 may obtain against defendants 2 and 3, the sons of Kashi. In para. 5 of the plaint, the plaintiff stated that after his purchase an amalgamated jama of its 70-1-14 gds. in respest of 14 bighas odd cottahs of land was recognised by defendant 1. It is not stated that at the time of such recognition the estate of defendant 1 was in charge of the Court of Wards. In the written statement filed by defendant 1, this story of amalgamation and kharij was denied In the above state of 'facts, a notice under Section 80, Civil P.C., would be 'requisite only in respect of the prayer for injunction as laid down by the Judicial Committee Jin Bhagchand Dagdusa v. Secy of State where it was pointed out that 'S 80 is express, explicit and mandatory and admits no implication or exception'. As regards the other prayers in the plaint, the plaintiff did not allege any act of defendant 1 purported to [be done in his capacity as public officer and no notice under Section 80 was required to be given so far as those prayers are concerned. In the trial Court no objection was raised either by defendant 1 or by defendants 2 and 3 that the suit .was not maintainable in the absence of a notice under Section 80, Civil P.C. No issue was joined on this point The suit proceeded to trial and was decreed in part. It was at the appellate stage that the question was raised for the first time by defendant 1. The question, therefore, arises as to whether the lower appellate Court was entitled to dismiss the suit on this ground which was taken for the first time before it. In view of the decision of this Court in Purna Chandra v. Radharani Dassya : AIR1931Cal175 this plea must be deemed to have been waived. The decision reported in Purna Chandra v. Radharani Dassya : AIR1931Cal175 is a decision of a Division Bench of this Court which, sitting, singly, I am bound to follow. The view taken in Purna Chandra v. Radharani Dassya : AIR1931Cal175 has been followed in Ram Narian Prasad v. Ram Kishun Prasad ('34) 21 A.I.R. 1934 Pat 354 Mr. Mukherjee contends that the decision in Purna Chandra v. Radharani Dassya : AIR1931Cal175 must be taken to have been wrongly decided as it does not contain a reference to the decision of the Judicial Committee in Bhagchand Dagdusa v. Secy of State . It is true that this decision is not referred to in the judgment of Suhrawardy J. in that case. The decision was, however, very well known and it must be assumed that their Lordships were familiar with the decision in Bhagchand Dagdusa v. Secy of State . Mr. Mukherjee also relies on a decision of the Patna High Court in Secy. Of state v. Sagarmal Marwari : AIR1931Cal175 and a decision of the Madras High Court in Government of Madras v. Vellayan Chettiar : AIR1944Mad544 and urges that the plea of waiver is not applicable as 8.80 is imperative in its terms. The cases relied by him are cases where the Secretary of State of India in Council was a defendant and there was no question that notice under Section 80, Civil P.C., was required. In case, however, where the defendant is a public officer, the necessity of a notice1 under Section 80, Civil P.C., depends on a question of fact, namely, whether the public officer purported to act in his official capacity. That question has to be determined with reference to the nature of the act complained of and the attendant circumstances of a particular case. In the' present case, as I have said already, the plaintiff did not admit on the face of the plaint that the sub-division and mutation was done by any public officer. If the objection had been taken at an earlier stage, the plaintiff might have withdrawn the prayer of injunction which required the service of a notice under Section 80, Civil P.C. In fact Mr. Janah appearing for the plaintiff has made this prayer in this Court. I think, therefore, the lower appellate Court was not; right in dismissing the suit on this ground.
11. The second ground made by the lower appellate Court is that the pluint is insufficiently stamped. I do not sec why the additional court-fees of Rs. 15 was payable. In fact the learned. Advocate for defendant 1 did not press this point.
12. The next point made by fichu lower appellate Court was that the suit is barred under Section 88 (2), Ben. Ten. Act. In my opinion, Section 88 (2) has no application to the facts of the present case. Defendant 1 did not admit that there was a valid agreement to subdivide the tenancy and to amalgamate the' subdivided tenancies. This point was also not raised in the trial Court.
13. The last point made by the lower appellate Court is that having regard to the respective value of the properties purchased by the plaintiff and retained by defendants 2 and 3, it cannot be said that the apportionment was unfair. The evidence on this point has been placed before me. The issue that was raised was somewhat vague. If I had held that the suit was maintainable, I would have directed a remand to the trial Court for further evidence on this point.
14. As regards the prayer made by Mr. Janah for the reception of additional evidence so far as C.S. dag No. 1326 is concerned, I do not propose to pass any final order because on any finding that the suit is not maintainable this prayer does not require further consideration.
15. The result is that this appeal fails and must be dismissed with costs to defendant 1 only. Defendants 2 and 3 will bear their own costs in this Court.