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Hemendra Nath Roy Vs. Upendra NaraIn Roy and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1914Cal508,32Ind.Cas.437
AppellantHemendra Nath Roy
RespondentUpendra NaraIn Roy and anr.
Cases ReferredWalihan v. Jogeshwar Narayan
digwari tenure - ghat bharra--ghatwal, position of--civil court, jurisdiction of, to reinstate a ghatwal dismissed--declaratory suit, maintainability of--specific relief act (i of 1877), section 42--arguments from analogy, when to be made--object or motive of party--presumption plaint--relief. - lawrence jenkins, c.j.1. the plaintiff, upendra narain roy, has brought this suit to establish his claim to lands in ghat bharra in the district of bankura as held in digwari chakran right. the defendants are his rival claimant, hemendra nath roy, the secretary of state for india in council, and the raja of panchakote, the zemindar. there are also certain pro forma defendants of whom some are the plaintiffs brothers, and one is darpanarain roy, who is admittedly one of the two digwars of ghaut bharra.2. the subordinate judge has passed a decree in the plaintiff's favour and has directed that the plaintiff do recover possession of the land in suit, and effect has been given to this direction. from this decree an appeal to the high court was preferred. it was heard by fletcher and n.r......

Lawrence Jenkins, C.J.

1. The plaintiff, Upendra Narain Roy, has brought this suit to establish his claim to lands in Ghat Bharra in the District of Bankura as held in Digwari chakran right. The defendants are his rival claimant, Hemendra Nath Roy, the Secretary of State for India in Council, and the Raja of Panchakote, the zemindar. There are also certain pro forma defendants of whom some are the plaintiffs brothers, and one is Darpanarain Roy, who is admittedly one of the two Digwars of Ghaut Bharra.

2. The Subordinate Judge has passed a decree in the plaintiff's favour and has directed that the plaintiff do recover possession of the land in suit, and effect has been given to this direction. From this decree an appeal to the High Court was preferred. It was heard by Fletcher and N.R. Chatterjea, JJ. They were divided in opinion and so the view of Chatterjea, J., who was for confirming the decree of the Subordinate Judge, prevailed.

3. From this judgment the present appeal has been preferred under Clause 15 of the Letters Patent by Hemendra Nath Roy, who has been supported by the Raja of Panchakote, a respondent in this appeal. No one else has appeared except the plaintiff who has supported the decree in his favour.

4. There are two Digwars in Ghaut Bharra. The defendant Darpanarain is one and his position is not contested. The whole dispute is as to the other Digwar. It is common ground that the office of Digwar and enjoyment of the land go together, and this combination may be due either to a grant of land burdened with the service of the office or a grant of the office remunerated by enjoyment of the land.

5. Whichever of these two it may be, we know that the office was held and the property enjoyed by Kartic Roy, the defendant Hemendra's father, and seven generations of ancestors before him, and it is common ground that it was so enjoyed in a regular course of succession. Kartic, however, was dismissed in 1855 and Rasik Lal Upadhya, a stranger to the family, was appointed in his place. But he in, turn was dismissed on the 14th April 1856 and Raja Ram Rai was appointed to the office. In 1861 Raja Ram Rai became incapable of performing the duties of the post and his nephew and heir presumptive, Mohendra, the plaintiff's father, was appointed.

6. In the meantime the dismissed Kartic had rendered good service and so on the 18th of August 1869 a promise was made that when any Sardari or Sadiali post became vacant, it should be offered to him in the first instance. In 1870 Mohendra was dismissed. In 1871 Kartic was confirmed in the, vacancy caused by this dismissal and it was directed that possession should be given him of the Ghatwali lands.

7. This dismissal, however, was cancelled by order of the Lieutenant-Governor who reinstated Mohendra in the service and on the 19th June 1872 an order was made on the Sub-Inspector of Gangajalghati directing him to continue as before to get the work done by Mohendra and give him possession of the lands. From a report dated the 14th August 1872 it appears this was done.

8. On the 19th July 1904 the Magistrate made an order dismissing a number of Ghatwals, including Mohendra. The following month this dismissal was cancelled and Mohendra was reinstated.

9. In August 1907 Mohendra preferred a petition to the Magistrate praying for six months' leave on the score of ill-health and asking that his son Upendra, the plaintiff, should be appointed in his place in an acting capacity for six months. This was approved.

10. On the 9th October 1907 Mohendra died and his son Upendra asked to be appointed. The order was Upendra Rai will continue to act in place of his dead father Mohendra Narain Rai, Sardar of Bharra, until further orders.'

11. I may here state that though Upendra has brothers, they do not dispute the superiority of his sole claim to the office.

12. In the meantime Kartic had died in 1908 leaving him surviving his widow Karunamayi and his son, the defendant Hemendra. Karunamayi, on Mohendra's death, applied for the appointment of her minor son Hemendra as Sardar Ghatwal of Pergana Mahisara. The Deputy Collector reported that in his opinion the application should be rejected and that the present acting man Upendra Nath Rai (be) appointed in place of his deceased father specially when he appears to have been doing good work all along.'

13. On the 16th of June 1908 the Magistrate-Collector made an order in which he said he thought Upendra should be affirmed. On the 14th August 1908 Mr. Maddox, the Officiating Commissioner, set aside the Magistrate's order, and directed that Hemendra, the minor son of Kartic, be appointed (as Sardar Ghatwal, and until he came of age a deputy must be appointed) in his place. This opinion was based principally on Mr. Maddox's reading of a decision reported as Jogendra Nath Singh v. Kali Charan Roy 9 C.W.N. 663.

14. Upendra appealed to the Board of Revenue on the 21st September 1908, but the Board resolved that it had no jurisdiction. Thereupon Upendra appealed to the Lieutenant-Governor and in reply he was informed that the remedy for any grievance which he might have lay in the Civil Court. So this suit was instituted by Upendra in accordance with the reply given him by the Government.

15. Whether we have here to deal with an office remunerated by the possession of land or land burdened with the service of an office is practically immaterial in the view I take.

16. But such materials as there are on the record, in my opinion, support the conclusion that we have here an office remunerated by the possession of land. Most of the information we possess relates to the period subsequent to Kartic's appointment, but it does appear that one of his predecessors was dismissed. Since that time there have been the repeated instances of appointment and dismissal which I have already mentioned, and what has given them the greater significance is that the corresponding possession of the land has apparently followed as a matter of course.

17. The oral evidence on this point is interesting. Thus Upendra says From 1856 up to the time of my dismissal we have held the pest of Sardar Digwar and held possession of the properties appertaining to the office. No person was appointed in my father's place and our possession did not cease.'

18. Later he deposes when a new Sardar is appointed, he has to take possession through the Police. When I was appointed acting Sardar. I did not apply to be put in possession. The possession was then with us.'' And according to him, it is the Magistrate who appoints and dismisses. Darpanarain declares that he took possession through the Police on his appointment, and that when a Sardar is appointed permanently or in an officiating post, he has to take possession through the Police.

19. Benimadhab, the Police Sub-Inspector at Gangajalghat, says that the Magistrates dismiss for misconduct or default in the performance of their duties and that the Police give possession to the person who is appointed. Rakhal Chandra Chattopadhya deposes to this power of dismissal.

20. Prasanna Kumar Rai, who looks after Hemendra's affairs, declares that the Magistrate appoints and dismisses and that he had never seen any Digwar or Sardar hold possession of the lands of his office after dismissal.

21. This view is borne out by the documentary evidence. The earliest document is the report submitted in 1799 by Kanji, Tahsildar of Chakla Pachet, but his covering letter shows that his sources of information were limited. The report throws no appreciable light on the question now under discussion, and it is probable that the distinction it involves was net present to his mind. But for what it may be worth, we find him stating that the Digwars enjoy their jagir villages without payment of rent in lieu of their wages.

22. The order of the 23rd May 1847 is much more explicit, and the parwana there reproduced states that Ghatwali lands are held merely for remuneration for labours of (heir services and that they are not entitled, to make a permanent settlement of the lands to any one by giving up their rights thereto, that they can grant only a patta of jote right for the period of their incumbency.

23. Another document to which reference may usefully be made is Exhibit D, an attested copy of Isamnabisi or list of Ghatwals dated in the year 1849. It is expressed to be an Isamnabisi of Ghatwals who got their allowance in cash or got jagiri lands therefor. It refers to the subject-matter of the present litigation and one of the columns is headed 'whether the Sardar gets pay in cash or holds chakran lands.' In another column we find the following statement: 'In the year 1221 Aditya Rai was appointed in place of Madan Rai who was dismissed. Gour Mohan Rai was appointed on the 25th Bhadra 1238 in place of his deceased father Anand Rai. Jagat Sarkar was appointed in place of his deceased brother Ananda Sarkar on the 26th Bhadra 1235.'

24. The conclusion then to which I come is that the Digwari position was that of an office remunerated by the enjoyment of laud. So the next point for determination is, whether this office was hereditary or not. No sanud is forthcoming, but the history of this office establishes a general usage on the death of a Digwar holding office to appoint his heir in his place as the successor to his office. Whether the office thus became hereditary in the strict sense of the term may be open to discussion, for even in the case of life grants, it is a common practice that they should be renewed to the heir of the grantee, so that there may be by usage an appearance of descent, and it must always be a matter of some doubt at what point the principle and practice of identification can be properly regarded as establishing heritability. Here the usage of the heir taking his predecessor's place can be traced back to the 17th century and so long a usage cannot be disregarded as an exponent of the Digwari right. On the contrary, I think we may safely ascribe to it the force of law subject to the qualification that the heir's claim and tenure of office is dependent on the approval of the Government. Mr. Maddox's determination recognises this, for he clearly thought that he was passing judgment on conflicting legal claims, and it is difficult to reconcile the Government's reply with any other view. In fact when analysed the contest would seem to be whether Mr. Maddox's legal pronouncement was correct or not, for if Mr. Maddox had not decided as he did, Upendra would not have been disturbed.

25. The Magistrate did approve Upendra's succession on his father's death, but this, as I have shown, was cancelled by the Commissioner with the result that the Board of Revenue resolved it had no jurisdiction and Government referred to the Civil Court. When the facts of the case are grasped this attitude of the Government is free from difficulty, for the Commissioner's determination was not limited to Upendra's conduct or fitness of office, but proceeded on that Officer's view of the rival of legal claims. The Commissioner's decision is based on Jogendra Nath Singh v. Kali Charan Roy 9 C.W.N. 663 but that case has absolutely no application to the circumstances of this case: it dealt with a proposition that has no relevance here and determined no point that arises here.. Apart from a personal promise in favour of Kartic, Hemendra Nath's only claim would be as the heir of Kartic, but after his dismissal 60 years ago, he can no longer be regarded with reason as a stock of descent. The last incumbent was Mohendra and Upendra Nath is his heir. Still it does not appear to me that we can uphold the unconditional decree that has been passed, for that disregards the qualification that the Government's approval is necessary, and we can do no more than express our conclusion that Mohendra was the incumbent of the office at his death, having been appointed thereto in succession to Raja Ram Rai whose heir he was, that Upendra was the heir of Mohendra, that Upendra's claim to succeed is subject to the approval of the Government, and that the ground on which the Commissioner cancelled the Magistrate's sanction was erroneous in law.

26. We cannot, therefore, affirm the decree as it stands, so that we have to see whether it is open to us to pass, a decree which will embody what is essential in this conclusion. The plaint is not happily framed, but in view of all the circumstances of the case, I think we can make a declaratory decree defining the plaintiff's position, though it may be it is not really necessary, for having regard to the Government's reply referring the plaintiff to the Civil Courts, they would probably be prepared to give or withhold its approval in accordance with the view we have expressed, seeing that it invited - recourse to the Civil Court. For the appellant, it is objected that we cannot make a declaratory decree on a plaint framed as the present is, and we have been referred to the decision in Walihan v. Jogeshwar Narayan 35 I.A. 38; 35 C. 189; 12 C.W.N. 227; 7 C.L.J. 44 (P.C.); 10 Bom. L.R. 9; 17 M.L.J. 226; 2 M.L.T. 509; 14 Bur. L.R. 101. But that decision does not appear to me to govern the present case which is peculiar in its circumstances. The prayers in the plaint are not limited to a claim for possession but seek declaration, and though the form in which these declarations are sought do not comply strictly with the provisions of Section 42 of the Specific Relief Act, the prayers, more especially in view of Order VII, Rule 7, are, I think, sufficiently comprehensive to permit the decree I think should be passed.

27. In dealing with this matter on broad lines we shall be acting in accordance with what has been done by their Lordships of the Privy Council in more than one case, when, to use an expression employed on one occasion, it was necessary out of a wreckage of procedure to construct the material for a just decision.

28. The principle adopted by their Lordships in Cockcrell v. Dickens 2 M.I.A. 353 at p. 389; 3 Moo. P.C. 98; 1 Mont. D. & D. 45; Morton 407; 1 Sar. P.C.J. 203; 18 E.R. 334 is this: 'The rule is, that if the bill contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief which those facts will sustain under the general prayer, but he cannot desert the specific relief prayed, and under the general prayer ask specific relief of another description, unless the facts and circumstances charged by the bill will, consistently with the rules of the Court, maintain that relief.' And the same position was maintained in Durga Prosad Sureka v. Bhajan Lal Lohea 31 I.A. 122; 31 C. 614; 14 M.L.J. 196; 6 Bom. L.R. 498; 8 C.W.N. 489 (P.C.) and Gopi Narain Khanna v. Bansidhar 32 I.A. 123; 27 A. 325; 9 C.W.N. 577; 2 A.L.J. 336; 2 C.L.J. 173; 7 Bom. L.R. 427; 15 M.L.J. 191 (P.C.).

29. We must, therefore, modify the decree of the lower Court by substituting for the same a declaration that according to usage on the death of a Digwar of Ghaut Bharra holding office, his heir may be appointed in his place, if the Government approve, that Mohendra Narain Rai held the office of Digwar at his death and that the plaintiff is the heir of Mohendra Narain Rai. This Court cannot give relief either by appointing him to the office he seeks or delivering him possession of the land, appertaining thereto. That relief must be sought elsewhere, and possibly for this purpose the declaration may be of service.

30. In the circumstances of this case, each party should bear his own costs throughout.

Asutosh Mookerjee, J.

31. This is an appeal, by the first defendant in a suit commenced by the plaintiff-respondent for recovery of possession of land on declaration of title thereto as Digwar of Ghat Bharra in the District of Bankura. The suit was decreed by the Trial Court. Upon appeal to, this Court, the Judges of the Division Bench were equally divided in opinion. Fletcher, J., was of opinion that the decree of the Subordinate Judge should be reversed and the suit dismissed. N.R. Chatterjea, J., was of opinion, on the other hand, that the decree should be confirmed. Consequently, the decree of the Subordinate Judge stood confirmed under Sub-section 2 of Section 98 of the Code of Civil Procedure, 1908. On the present appeal, under Clause 15 of the Letters Patent, the decision of the Subordinate Judge has been assailed, principally on the ground that the plaintiff cannot claim as of right to succeed to the office of Digwar and that as the Executive Government have refused to appoint him as Digwar, the Civil Court has no jurisdiction to review the order of the Executive.

32. It is desirable at the outset to state that no useful purpose is likely to be served by a reference to the provisions of Regulation XXIX of 1814, which are applicable to Birbhum Ghatwals; nor can any analogy be safely drawn from the decisions in Nilmoni Singh Deo v. Bakranath Singh 9 C. 187; 9 I.A. 104; 5 Shome L.R. 68; 4 Sar P.C.J. 335 and Jogendra Nath Singh v. Kali Charan Roy 9 C.W.N. 663 which are mentioned in the judgments of the Division Bench, As was observed by their Lordships of the Judicial Committee in the case of Ramchunder Dutt v. Jugeshchunder Butt 12 B.L.R. (P.C.) 229; 19 W.R. 353, the argument from analogy, may arise where a principle of law is involved, but where Courts are dealing with the positive enactment of a Statute, reasons founded upon analogy are scarcely applicable. This observation is peculiarly weighty where the rights of the parties litigant depend in a great measure upon the nature of the particular tenure or the terms of the particular grant. The problem for investigation consequently is what is the nature of the tenure, what are the terms of the grant in this case as indicated by its antecedent history. In the determination of this question, we must bear in mind the clear distinction between the grant of an estate burdened with a certain service and the grant of an office the performance of whose duties are remunerated by the use of certain lands. This fundamental distinction was emphasized by Jackson, J. in Kooldeep Narain Singh v. Mahadeo Singh 6 W.R. 199 at p. 209; B.L.R. Sup. Vol. 559 and has since then been recognised and approved by the Judicial Committee in Forbes v. Meer Mahomed Tuquee 13 M.I.A. 438; 5 B.L.R. 529; 14 W.R. (P.C.) 28; 2 Suth. P.C.J. 358; 2 Sar. P.C.J. 588; 20 E.R. 614; Lilanand Singh v. Munorunjun Singh 13. B.L.R. 124 at p. 131; I.A. Sup. Vol. 181 and Venkata Narasimha Appa Rao Bahadur v. Sobhanadri Appa Rao Bahadur 33 I.A. 46 at p. 52; 3 C.L.J. 1; 29 M. 52; 16 M.L.J.1; 10 C.W.N.161 (P.C.); 1 M.L.T. 3; 3 A.L.J. 55; 8 Bom. L.R. 1.

33. In the investigation of the nature of the title, under which the lands in dispute have been held by successive occupants thereof, reference to the following genealogical tables will be found convenient:










| |

Sham, Ram,

| |

Khudu, Gobordhan,

_____|___ |

| | Alum

Madau. Adwaita ________|_______

| | |

Kartics, Gourmohan. Mooktaram,

| |

Hemendra, Darpanarayan,

defendant No. 1. defendant No. 8.




| |

Rajaram. Y,






34. It is undisputed that the lands in suit were held by successive Digwars of Ghat Bharra, who were, up to the middle of nineteenth century, members of the family whereof Sahebram was the founder. The evidence indicates that Sham and Ram were Digwars in 1782. Since then, the lands have been enjoyed in equal halves by the two Digwars, one of whom came from the branch of Sham and the other from the branch of Ram. We are not concerned in this litigation with the lands enjoyed by the Digwars who belong to the latter branch; but the evidence indicates that Gourmohan was appointed Digwar in 1831 and that Darpanirayan succeeded him in 1865. When we turn to the history of the other branch, we find that Madan, who was Digwar in 1808, was dismissed in 1814 and was succeeded by Adwaita, who, in his turn, was dismissed in 1850. Kartic was appointed Digwar on the 28th March 1851 after the dismissal of his father, and was himself dismissed on the 10th May 1855, as the authorities were not satisfied with the manner in which he discharged his Police duties. On the dismissal of Kartic, a stranger to the family, named Rasik Lal Upadhya, was appointed Ghatwal, but his tenure of office was very brief, as he himself was dismissed on the 14th February 1856. On the dismissal of Rasik, Rajaram, the grand-uncle of the plaintiff, who belonged to a different family, was appointed Digwar on 14th April 1856. He was succeeded in 1861 by Mohendra, the father of the plaintiff. Daring, the incumbency of Mohendra, Kartic, in 18 39, made a successful attempt to get back the office when Mohendra was suspended. On the 13th October 1870 Mohendra and Darpanarayan were bath dismissed, as their conduct was deemed unsatisfactory, and the opinion was expressed that it was improper to keep such men in Government service. Kartcic was re-appointed Digwar in place of Mohendra on the 11th January 1861, and one Khetternath was, at the same time, appointed in place of Darpanarayan. But, on the 30th May 1872, Mohendra and Darpanarayan were both reinstated by the Lieutenant-Governor in supersession of the order of the Commissioner who had confirmed the order of dismissal made by the Magistrate. This terminated the brief restoration of Kartic to the office which had been held by His ancestors for seven generations, but he obtained what may be described as a promise of reappointment on a future vacancy. Kartic, however, died in 1900 leaving an infant son, Hemendra, the first defendant in this litigation. On the 19th July 1904, Mohendra was dismissed again by the Magistrate along with a number of other persons similarly situated. On the 6th August 1904 this order was revoked and Mohendra and Darpanarayan were conditionally restored. The evidence points to the conclusion that they were allowed to continue in office and enjoy the lands, though the condition imposed does not appear to have been fulfilled. On the 20th August 1907 Mohendra obtained leave of absence on the ground of illness and his son Upendra was appointed to act for him; but Mohendra never returned to his work, as he died on the 9th October 1907. Upendra was thereupon directed to act until further orders. At this stage, an attempt was made by the guardian of Hemendra to secure the office and the lands for him, if possible. The Magistrate, however, on the 16th June 1908 appointed Upendra as Digwar on the strength of a report dated 27th April 1908 submitted by the Deputy-Magistrate. Hut, on appeal to the Commissioner, the order of the Magistrate was reversed on the 11th August 1908 and Hemendra, the infant son of Kartic, was appointed Digwar. Upendra preferred an appeal to the Board of Revenue, which was dismissed on 21st September 1908. He then appealed to the Lieutenant-Governor; but on the 29th March 1909 he was informed that the remedy for any grievance which he might have, lay in the Civil Court. The result was the institution of this suit by him on the 16th August 1909.

35. From the facts thus briefly narrated, two points emerge as perfectly clear, namely, first, that the disputed lands have always been enjoyed by the Digwar of Ghat Bharra and secondly, that when a person has been dismissed from the office of Digwar, he has been forth with deprived of the lands. There is, indeed, no trace in the evidence that there ever was an assertion by a dismissed Digwar that he was not liable to be deprived of the lands. As regards the dismissal itself, the Digwar was at liberty to appeal from the decision of the Magistrate to the superior authorities; but no one has ever suggested that if the Executive Government ultimately confirmed the order of dismissal, the Digwar had still a right to continue in possession of the lands. These circumstances, in my opinion, justify the inference that we have here, not a grant of lands burdened with a certain service, but the grant of an office, the performance of whose duties is remunerated by the use of lands. The land and the office went together; but the office was the primary concern, the occupation of the land was subsidiary thereto. I think the inference is also legitimate that we have here a case, not of property held by a man to himself and to his heirs, but of property held by a man to himself as holder of an office and his successors in that office. The office itself was not hereditary in the sense that the heir of the last holder was entitled as a matter of right to discharge the duties of the office and to remunerate himself from the usufruct of the lands attached thereto.

36. The theory that the office was hereditary in character is inconsistent with incontrovertible facts disclosed in the evidence. Successive Digwars were dismissed by the Executive Government on the ground that they were not fitted to hold the office without any question or demur. In 1855. the office was granted to a stranger to the family of Kartic, and when the new Digwar was in his turn removed, a few months later, another person, Rajaram, who was a stranger to both the families, was appointed; it was then expressly stated as a point in his favour that he was not connected with Kartic. The view that the Digwar was liable to be removed for failure to discharge his duties satisfactorily and that on his removal the Executive Government was free to appoint a qualified stranger as successor, is borne out by the documentary and oral evidence on the record.

37. The earliest document, namely, the report of Kanji Tahsildar, dated the 9th July 1799, though based on meagre materials, makes it reasonably clear, that the Digwars enjoyed the villages without payment of rent in lieu of their wages. Evidence of a more recent date is consistent with this position; for instance, the order on Adwaita and Gour mohan dated the 23rd May 1847 states explicitly that the Digwars held lands merely for remuneration for the labours of their services, and are consequently competent to create only such subordinate rights as do not continue beyond the period of their incumbency. The list of Ghatwals framed in 1849 makes it equally clear that the Digwars when they did not get their allowance in cash held the lands only in lieu of such allowance; and this was applicable to the Digwari now in suit. The same view is supported by subsequent reports and orders made on the occasion of dismissal of successive Digwars and the appointment of their successors, and this is confirmed by the statement of the plaintiff himself as to the nature of the tenure of the Digwari office made in an agreement between himself and his brother on the 1st April 1908. The position consequently is that the disputed lands appertain to the office of Digwar of Ghat Bharra, that the office itself is not hereditary as a matter of right, that the holder of the office is liable to be removed for failure to discharge his duties to the satisfaction of the Executive Government, that on the removal of a Digwar his successor acquires a valid title to the office only if appointed thereto by the Executive Government, and that although on two occasions strangers have been appointed to the office, during many generations the heir to the last holder has taken the office and the lands with the approval of the Executive Government. Tested in the light of these conclusions, what is the position of the plaintiff? He has not been appointed Digwar by the Executive Government, and he had not, consequently, a valid and enforcible title to that office at the time of the institution of the suit. He is plainly not entitled to a decree for possession of the lands annexed to that office, and the decree of the Subordinate Judge cannot, to this extent, be possibly confirmed. But it does not follow that the plaintiff is not entitled to any relief in the suit as framed, and here we must take into account the very special circumstances which have preceded its institution. The plaintiff, on the death of his father, was appointed Digwar by the Magistrate. But the order of the Magistrate was reversed on appeal by the Commissioner. The decision of the Commissioner was largely based on a misapplication of the judgment of this Court in the case of Jogendra Nath Singh v. Kali Charan Roy 9 C.W.N. 663. That decision, it has not been seriously disputed before us by either party, has no possible application to this case. There the Court found that the particular tenure was not merely heritable but was also permanent, and that a tenure of this description could not be determined or resumed by the zemindar or the Government on the ground that the services were no longer necessary or had been dispensed with. It was further held that in the case of a tenure of this description where, during the life-time of the Ghatwal, his son, who was appointed his deputy, was dismissed, the dismissal of the son did not amount to a dismissal of the father, and that after the father's death, the son was entitled to succeed, although during his father's life-time he had been dismissed while acting as a deputy of his father. It is obvious that these principles have no application to a case where, as here, the tenure is not heritable as of right and the lands are annexed to an office which also has not a hereditary character impressed upon it. The position then is that the Commissioner refused to approve the appointment of the plaintiff as Digwar, not because the Commissioner considered him unsuitable for the office, but because the Commissioner took an erroneous view of the relative rights of the plaintiff and his opponent, the determination of the Commissioner was in essence based upon an erroneous adjudication of a question of title. This explains why 4 the Board of Revenue stated that the, Board had no jurisdiction and why the Executive Government held that the remedy for any grievance which the plaintiff might have lay in the Civil Court. It need not be denied that, as was recognized in Debee Narain Singh v. Sree Kishen Sein 1 W.R. 321 and Secretary of State v. Poran Singh 5 C. 740, the Civil Courts have no jurisdiction to reinstate a Ghatwal who has been dismissed by the Executive Government as unfit for the discharge of his duties. But the position' is obviously different where the Commissioner decides against a claimant, not in the exercise of his discretion, but upon an erroneous view of the relative title of his contestant: Lall Dharee Roy v. Brojo Lall Singh 10 W.R. 401. I am of opinion, accordingly, that it is competent to this Court to grant to the plaintiff relief by way of a declaratory decree under Section 42 of the Specific Relief Act, so that the plaintiff may approach the Executive Government and seek their decision on the question of the appointment of a successor to the office of Digwar of Ghat Bharra. A similar view has been taken in Bombay in connection with what are known as Vatans, and it has been ruled that if the plaintiff has the right and if the Court has jurisdiction to give him relief by declaring it, he is entitled to a decree; the Court is not concerned with the object or motive of the party who comes into Court in assertion of his alleged right and he should not be refused declaration merely because he seeks it with a view to influence the opinion of the Revenue Authorities: Ramchandra Dabholkar v. Anant Sat Shenvi 8 B. 25; Govind Sitaram v. Bapuji Mahadeo 18 B. 516; Khando Narain v. Apaji Sadashiv 11 Bom. L.R. 1342 foot-note; Rahimkhan v. Dadamiya 4 Ind. Cas. 833; 11 Bom. L.R. 1339; 34 B. 101; but the position is different when the declaration sought can be based only on the investigation of a question which is by Statute or otherwise expressly excluded from the cognizance of the Civil Court: Khando Narayan v. Apaji Sadashiv 2 B. 370; Chinto v. Lakshmibai 2 B. 375; Balkrishna v. Balaji 9 B. 25; Raoji v. Genu 22 B. 344; Jivaji Sambaji Kambli v. Fakir Sabaji Kambli 15 Ind. Cas. 840; 14 Bom. L.R. 395; 36 B. 420. The view I take is supported by the decision of the Judicial Committee in Sadut Ali Khan v. Khajeh Abdool Gunney 11 B.L.R. 203 (P.C.); 19 W.R. 171: I.A. Sup. Vol., 165, which recognised the principle that before the Court grants relief in a declaratory suit, the Court must see that the declaration of right may be the foundation of relief to be got somewhere. This condition it appears to me is sufficiently answered in the present case. I arrive at this conclusion without hesitation or embarrassment in view of the letter of the Government of Bengal dated 29th March 1909.

38. The only other question for consideration is, whether a declaration should be granted in the suit as framed. Here, I think, the Court should be guided by well-settled principles now embodied in Rule 7 of Order VII of the Code of 1908. The principle is best stated in the words of Lord Erskine in Hiren v. Mill (1806) 13 Ves. 114 at p. 119; 33 E.R. 237; 9 R.R. 149. The rule is that if the bill contains charges putting facts in issue that are material, the plaintiff is entitled to the relief which those facts will sustain under the general prayer; but he cannot desert the specific relief prayed and, under the general prayer, ask specific relief of another description, unless the facts and circumstances charged by the bill will consistently with the rules of the Court maintain that relief. This formulation of the rule, it may be parenthetically observed, is attributed per incuriam, to Lord Eldon, by Baron Parke, in Cockerell v. Dickens (3). In the application of this salutary rule, the test is whether the defendant will be taken by surprise [Stevens v. Guppy (1826) 3 Russell 171 at p. 185; 6 L.J. (N.S.) Ch. 164; 27 R.R. 59]; and there can be no surprise if the deficient relief not specifically claimed, but supplied as the Courts think just, is consistent with the relief specifically claimed as well as with the case raised by the pleadings: Cargill v. Bower (1878) 10 Ch. D. 502 at p. 508; 47 L.J. Ch. 649; 38 L.T. 779; 26 W.R. 716. This rule has been repeatedly recognised, and approved by the Judicial Committee: Cockerell v. Dickens 2 M.I.A. 353 at p. 389; 3 Moo. P.C. 98; 1 Mont. D. & D. 45; Morton 407; 1 Sar. P.C.J. 203; 18 E.R. 334; Durga Prosad Sureka v. Bhajan Lal 31 I.A. 122; 31 C. 614; 14 M.L.J. 196; 6 Bom. L.R. 498; 8 C.W.N. 489 (P.C.); Gopi Narain Khanna v. Bansidhar (5) The decision in Walihan v. Jogeshwar Narayan, 35 I.A. 38; 35 C. 189; 12 C.W.N. 227; 7 C.L.J. 44 (P.C.); 10 Bom. L.R. 9; 17 M.L.J. 226; 2 M.L.T. 509; 14 Bur. L.R. 101 is not really opposed to this view, and only illustrates the position that to entitle a plaintiff to judgment under the claim for general relief, different from that specifically claimed, the allegations relied upon must not only be such as to afford a ground for the relief claimed but they must have been introduced for the purpose of showing a right to relief and not for the mere purpose of corroborating the plaintiff's right to the specific relief claimed. In the case before us, the nature of the title under which the disputed property is held has been investigated after a protracted trial and there is no room for suggestion that the defendant will be taken by surprise * if a declaratory decree is made in favour of the plaintiff, I hold accordingly that this is a case where a declaratory decree may properly be made, and I agree with the Chief Justice that this appeal should be allowed and the decree of the lower Court modified by the substitution of a declaration in the terms framed by him.

Holmwood, J.

39. I have nothing to add to the judgments which have just been delivered and with which I agree.

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