R.C. Mitter, J.
1. This appeal is on behalf of the plaintiff, the Midnapore Zamindary Co. Ltd., herein referred to as the Company, in a suit for declaration of certain rights in property. It has been dismissed by the learned Subordinate Judge of Nadia by his judgment and decree dated 19th December 1934. To follow the points raised in the appeal a short history of the Estate called Char Marichardiar bearing touzi No. 1905 of the Rajshahi Collectorate, now touzi No. 3520 of the Nadia Collectorate (herein referred to as the chur), within which the lands in suit are situate and the precise nature of the Company's claim have to be noticed. In or about 1840 a vast island chur was formed in the bed of the river Padma and became fit for occupation. Robert Watson & Co. (to be called the Watsons), who were in possession of some asli lands in the neighbourhood came upon this chur in 1841 and began to possess it. Adjoining riparian proprietors laid claim to different portions of this chur either on the ground of reformation in situ or on the ground of accretion to their permanently settled estates, but the Watsons successfully resisted their claims to a great extent, all the suits except one or two being dismissed. The Watsons fought all these suits on the defence that no portion of the said chur was part of any permanently settled estate or accretions thereto but was the Government's property, being originally an island chur found in the bed of a large navigable river. From 1841 to 1869 however they did not pay anything to the Government on account of their occupation.
2. In the sixties of the last century, a Diara survey of this chur was made, and in 1869 the Watsons took a settlement from the Government for a term of three years stipulating to pay a fixed amount to the latter. The document evidencing this settlement has not been produced and we do not precisely know anything about the nature and terms of this settlement beyond the fact that it was for a term of three years. The Watsons held over from year to year till March 1883. In 1882 the ryots of the said chur rose in revolt against them and petitioned the Government for realizing rent from them directly. The Government acceded to their prayer and resolved to hold the estate under khas management. The evidence establishes the fact that direct possession was taken by the Government from April 1883. This fact is not only mentioned in a series of settlement reports beginning from [1888 Ex. 13 (a) B 88] but is admitted in a petition of the Company (Ex. 28-B-166). A survey of the said chur as also a jamabandi (settlement of rent of the cultivating ryots) was begun immediately after the Government took the estate under khas management.
3. It appears from the record that the Watsons were in khas possession of some portion of the chur, and cultivated the same themselves, they being indigo planters. The rest was in the possession of cultivating tenants. When the ryots of the said chur petitioned the Government for khas management the Watsons took steps to counteract that move. They submitted a memorial to the local Government on 26th December 1882 in which they prefer-red two claims. They claimed proprietary rights to a good portion of chur and occupancy rights in the remainder, this last mentioned claim being founded upon their khas cultivation. Their claim of proprietor-ship was founded upon adverse possession, their case being, Part 1 has been marked by me as A, Part 2, Vol. 1, as B, Part 2, Vol. 2 as C, Part 2 Vol. 3 as D, Part 2 Vol. 4 as E, and Part 2 Vol. 5 as F, that a portion of the chur was re-formation in situ of Bobanund Diara, an estate which belonged to the Chowdhuries, whom they had kept out of possession for the statutory period. The Government in its resolution dated 6th April 1883 held that their claim to proprietary right was unfounded and acting upon the opinion of the Advocate-General, who had in the meantime been consulted, rejected their claim to jotedari rights (occupancy rights). The Lieutenant-Governor however did not wish that their possession over such portions of the chur as were in their khas cultivation should be disturbed, but they were to be asked to pay rent to the Government at the rates current in the locality (Ex. 1-B-75). In this resolution there are two passages, one at p. 79 1. 26-32 and the other at p. 80 1. 40-46, which indicate that the Government considered itself to have proprietary title in the chur and that the Watsons were its tenants up to March 1883, they being rent collectors, farmers of rent or ijardars. This fact and the facts noticed in the next paragraph have an important bearing on the first question liaised in the appeal, namely on the construction of the document Ex. 17 (d) (B-62), the document by which the Watsons engaged with the Government for a term of 20 years from 1887.
4. The survey of the chur and jamabandi which was begun in about the year 1883 was completed in 1885. With a view to terminate disputes, Government however in the end decided to offer another farming settlement to the Watsons for a period of 20 years on certain conditions. The essential condition which the Lieutenant-Governor laid down in 1884 was that the Watsons were to acknowledge Government's proprietary title. What I find is that thereafter the Watsons reduced to a great extent their original claim. Instead of claiming the whole of the area of 46,000 bighas odd partly in proprietary right and partly in occupancy right they reduced their proprietary claim to a parcel about 10500 bighas in area which they claimed partly as re-formation in situ of mehal Tamadia which they held in patni right under a private proprietor and partly as re-formation in situ of another village of theirs named Muluk Chandpore. The Government however was prepared to admit by way of compromise their claim to about 6309 bighas, and proposed a lease with them for 20 years of the remaining 40198 bighas provided they formally recognized Government's proprietary title to the same: Ex. 23c, letter of the Secretary to the Government of Bengal to the Secretary, Board of Revenue, dated 26th December 1885-Ex. B 111.
5. The Watsons agreed to this and the Settlement Deputy Collector was asked to demarcate the lands to which Government admitted the Watsons' proprietary title and to deduct from the jamabandi of 1885, the assets of the released portion of Mehal Tamadia and Muluk Chandpore and of the lands to which the Government admitted the claim of another proprietor Rani Mon Mohini Debi. The Deputy Collector carried out these directions and made corrections necessitated by fluvial action. Making allowance for collection charges and the farmer's profits and remissions to cultivators which would have to be made for submergence or diluvion of portions of their land, the Deputy Collector by his final report dated 6th September proposed a farming settlement with the Watsons for a period of 20 years from 1st April 1887 at an annual 'rental' & 7737 (Ex. 13.B 114). There was, later on, modification of the amount of the jama and the Watsons actually executed the kabuliat on 4th February 1888 (Ex. 17 (d). B 62) in favour of the Collector of Rajshahi on the term that the settlement was to be operative for 20 years commencing from 1st April 1887. In the very first clause of the kabuliat they admitted that the lands formed part and parcel of the Government's Estate bearing touzi No. 1905 of the Rajshahi Collectorate. This was in accordance with the essential condition laid down by the Government in 1884, that they were formally to recognize the Government's proprietary title. In 1902 the Watsons transferred their rights under this settlement to Gregson. It is the case of the plaintiff company that between 1887 and 1902 the Watsons purchased in execution of rent decrees many holdings of occupancy ryots. These holdings the Watsons also transferred to Gregson who in his turn transferred whatever he had acquired to the plaintiff company, which also purchased in execution of rent decrees a few occupancy holdings before 1907. The total area of occupancy holdings so purchased between 1887 and 1907 according to the plaintiff company is 1339.84 acres and this is the subject-matter of the suit and appeal.
6. The settlement of 1887 based on Ex. 17 (d) expired on 31st March 1907. A survey and jamabandi were started by the Assistant Settlement Officer and during the preparation of the records yearly settlements were concluded with the company. The papers prepared by the Assistant Settlement Officer were finally attested in July 1907. As this survey and jamabandi were not under Part II of Ch. 10, Bengal Tenancy Act, there was no final publication of the record. In the course of this survey . and jamabandi the company set up their claim as occupancy ryots to the aforesaid 1339.84 acres of land. The proceedings of the Government officers will have to be examined in detail later on, but at this stage it is only necessary to state that the Commissioner of the Division finally rejected their claim to occupancy right by his order dated 26th January 1912. The company got a resettlement for 15 years from 1st April 1910. The kabuliat is Ex. 17 (b)-B 69.
7. In 1913 a District Settlement under Ch. 10, Bengal Tenancy Act, was started in Rajshahi and in the finally published Record of Rights a portion of the said area-about 70 acres-was recorded as being in the possession of the company as occupancy ryots and the rest in its possession as non-occupancy ryots with a note that its occupancy rights had been destroyed by reason of Section 22 (3), Bengal Tenancy Act. Only some of the khatians have been printed; the two types are Ex. 20 (f) at C 275 and Ex. 20 (h) at C 413. In the remarks at the foot of p. 414 the word 'no' before the words 'occupancy right' has been dropped in the print.
8. On the expiry of the last mentioned settlement for fifteen years another survey was started under Part II of Ch. 10, Bengal Tenancy Act. In the course of the preparation of the Record of Eights the company again set up their claim to the aforesaid area of 1339'84 acres as occupancy ryots but that claim was wholly overruled. The holdings were not even recorded in the company's possession as non-occupancy ryots as in the Rajshahi settlement, but they were treated as merged or destroyed and the whole of the said area was recorded directly under the Government, i.e. as khan khas lands of the ijaradar (Ex. B (1), B 169 at B 184, para. 3, Ex. A (1), B 164 and Ex. 28, B 166 at 168). This record was finally published on 31st May 1929.
9. The plaint was filed by the company on 26th November 1929. In para. 1 of the plaint two important admissions have been made. The first is that Mehal Chur-Mariohadiar of touzi No. 3520 is a Government khas mehal and the second admission is that since 1887 the said khas mehal has, been settled in ijara right to the company and its predecessors-in-interest. These statements will have important bearing on the first question raised before us by the appellant's counsel. In para. 2 of the plaint ' it is stated that the company and its predecessors purchased occupancy holdings covering an area of 1339.84 acres before 1907, and according to the law in force at the time of their said purchases they became owners of the same in occupancy right. This has obvious reference to Clause (3) of Section 22, Bengal Tenancy Act, before its amendment by Act 1 of 1907. Some light is thrown on this paragraph of the plaint by the petition of the company filed before the Settlement Sub-Deputy Collector on 3rd July 1928 shortly before the suit (Ex. 14-B 162). In this petition the company draws a distinction between the purchases of occupancy holdings of ryots before 1907 and after 1907, and in the former case occupancy rights were being claimed, and in the latter no such claim was preferred; but, on the other hand, it was expressly stated that the company held those lands so purchased after 1907 in the right of intermediate tenure holders only. This position was adopted consciously because by the Amending Act of 1907 the words 'by purchase or otherwise' were added after the word 'acquire' then occurring in Section 22 (3), Ben. Ten. Act.
10. In para. 2 of the plaint, statements are made that the company was recorded in the settlement of 1910 as in possession in jote (occupancy) right of the said area and in the Rajshahi settlement operations, its possession was similarly recorded. The last statement is far from truth and the statements about the settlement of 1910 are only half truths. Para. 3 states what was done in the last settlement, the records of which were finally published under Ch. 10, Ben. Ten. Act, on 31st May 1929. It is expressly stated in the said paragraph that the officers of the Government beginning from the Deputy Collector treated the said purchased jotes (holdings) as having merged in the ijara, that is the holdings were treated as non-existent and that by the said acts of the Government the company's right, title and possession in respect of the said jotes have been jeopardized. This is the cause of action alleged.
11. In prayer (ka) the company asks for a decree 'for a proper declaration that it has got purchased jote right (occupancy right) and right of possession in the jotes (holdings) described in Schedule 'ka' below.' Prayer 'ga' is the prayer for general relief. It is unnecessary to notice the other prayers except that in prayer 'gha' a certain reservation was made by the company. It seems to me clear that the company did not pray for its. rights of occupancy in the lands in suit being only declared but it went further. It also prayed for its right of possession in the jotes (holdings) also, which were purchased by it and its predecessors between 1887 and 1907. These holdings had been treated as merged in the ijara in the last Survey and Settlement of 1929 and the case of the company was, this was also wrong. The Subordinate Judge, in my judgment, has misconceived the precise scope of the suit. With these observations and findings which will have the effect of disposing of a substantial part of the appeal, I proceed to notice some of the material findings of the Subordinate Judge and to deal specifically With the points raised by the appellant's and respondent's advocates.
12. The Subordinate Judge has found: (i) that the 1339.84 acres in suit are identical with the lands of the occupancy holdings of ryots purchased by the company and its predecessors between 1887 and 1907, (ii) he has found, though the finding is not in its-proper place and has been put within parenthesis, that these holdings were purchased in execution of rent decrees (A-121 1.11.14), (iii) that the occupancy rights' were extinguished as soon as the holdings were so purchased, (iv) that by Ex. F (B-151) the company in taking the 15 years' settlement from 1st April 1910 had accepted that position, namely that the occupancy rights had been extinguished, (v) that the Government had at no time recognized its occupancy rights in the said lands, (vi) that by reason of Section 22 (3), Ben. Ten. Act, as it stood upto 1907, the holdings were not extinguished but only the occupancy rights had ceased, (vii) that the suit was not barred by time and (viii) the suit regarded as a suit for declaration was not bad by reason of the non-joinder of the company's tenants on the lands in suit. He dismissed the suit notwithstanding finding No. (vi) apparently on the footing that in his view the only relief claimed in the suit was one for declaration of occupancy right only.
13. The respondent's advocate attacks the last three findings, a portion of the first finding and says that there is no finding that the occupancy holdings had been purchased in execution of rent decrees. With regard to the first findings all he says is that a portion of the 1339.84 acres which formed part of occupancy holdings of ryots had no doubt been purchased before 1907 but that the evidence establishes the fact that the company even after 1907 purchased some ryoti holdings and that these holdings are accordingly outside the suit. The appellant's advocate attacks the third, fourth, fifth and a part of the sixth findings. I do summarily reject the fourth finding as unsound, as in my judgment the Subordinate Judge has misread Ex. F (B-151) and has misconstrued its effect. The company therein reserved its rights to agitate the question relating to its claim to occupancy right. The points which therefore require consideration are the following: (i) Whether the company and its predecessors were farmers of revenue or farmers of rent under the settlement of 1887 : Ex. 17 (d). (ii) Did the company and its predecessors purchase in execution of rent decrees the occupancy holdings of raiyats and what is the extent of such purchases between 1887 and 1907? (iii) Whether the right of occupancy and the occupancy holdings so purchased were extinguished as soon as those purchases were made (iv) Did the company give up their occupancy rights, if it had any, in the purchased lands? (v) Did the Government recognize their rights? (vi) Is the suit barred by time and (vii) can any declaration of right be made in favour of the company in the absence of its subordinate tenants, and if so what must be the nature of the declaration? I will take up these points seriatim.
(i) The first point depends primarily upon the construction of the document [Ex. 17 (d)-B-62], The appellant's contention is that by that document a farming settlement of revenue was made for 20 years, i.e. the Watsons became farmers of revenue. It is further argued that a farmer of revenue has under the law no interest in the land farmed; he is not a proprietor within the meaning of Section 22 (1), Bengal Tenancy Act. Section 22 (3) of the said Act would not also apply as that deals with ijardars or farmers of rent. It is further argued that Section 22, Ben. Ten. Act, being thus out of the way, there is no law which prevented the company and its predecessors from acquiring occupancy rights or which would divorce, for the purpose of extinguishing, the occupancy rights from the occupancy holdings purchased by them. There are thus many propositions involved which would require consideration if, and only if, it be held that the settlement of 1887 Ex. 17 (d) was a farming settlement of revenue and not of rent. In my judgment by Ex. 17 (d) a farming settlement of rent was concluded. In Clause 1 it is stated that estate Marichadiar bearing touzi No. 1905 on the Collector's register maintained under the Land Registration Act (Act 7 of 1876 B. C.) was a Government estate and the neutral word 'jama' is used there. In para. 2 the status of the grantee is mentioned as farmer. That may mean that he was either a farmer of revenue, or a farmer of rent. That paragraph has the effect of expressing that the settlement was not to be a raiyatwari settlement and that is the governing intent. Para. 3, except for the Government demand being described as revenue, would be consistent with a farming: settlement of rent, and by it some interest in land is given to the grantee. Para. 5 provides for the cancellation of the 'lease' for non-payment of Government demand and gives the Government right to realize its dues by the procedure applicable to farmers under Act 7 of 1880 (B. C). The reference is obviously to Section 5 (2) of the said Act which speaks of arrears of revenue. The next four clauses are clauses which would only be apposite if the relationship between the Government and the grantee was of landlord and tenant. But for the word 'revenue' used in Clause 3 and the said reference to the Public Demands Recovery Act of 1880, all the terms of the document would indicate that a non-permanent tenure, an ijara, was being created. I do not place much reliance on the use of the word 'revenue' for the State was also the proprietor, and its demand, though strictly rent would be described, though it may in a loose way, in that fashion. Expln. (1) to Section 101, Ben. Ten. Act, which was added by Act 5 of 1894 (B. C.) supports this view. Clause 5 however presents an obstacle to the view that the settlement was an ijara settlement, but that is an apparent obstacle for if the grantee was to be a farmer of revenue the provisions of Act 7 of 1880 would have been attracted proprio vigore and there would have been no necessity for a contract. On the principle that parties are free by contract to regulate the procedure, the said Clause can be interpreted to mean that the Government contracted for a cheap and expeditious procedure for the realization of its demands.
It can be said at most that Ex. 17 (d) by reason of the use of the word 'revenue' in Clause 3 and by reason of the reference to the Public Demands Recovery Act in Clause 5, is of ambiguous import. But in that case it would be legitimate to refer to the attendent circumstances which I noticed in the earlier part of the judgment and these point to the fact that a grantee was intended to be a tenant of the khas mehal estate with a liability to pay as rent Rs. 8700 for a term of 20 years. As the settlement was not a ryotwari one (Clause 2), the grantee's position would be that of a tenure-holder with a term of 20 years, that is a non-permanent tenure-holder, or to use the language of Section 22 (3), Ben. Ten. Act, an ijardar or farmer of rent. The company in the very first paragraphs of its plaint itself understood the matter in the same way, for the estate is there described as Government khas mehal and its own right as ijara right. In this view of Ex. 17 (d), it is not necessary to define the position of a farmer of revenue. Under the Mahomedan regime no doubt he had no interest in land; his position was akin to the position of a mere collecting agent (Field on Land Holding and the Relation between Landlord and Tenant, p. 428, Section 227); but that is not the position certainly under the British administration. He has certainly an interest in land and he would be a lessee, if by the settlement with him the payment to be made to the Government be regarded as rent, or the proprietor of a temporarily settled estate, if by the settlement what he has to pay to the Government is regarded as revenue (Field, ibid, p. 227 foot-note). The word 'proprietor' in Sub-section (1) of Section 22, Ben. Ten. Act, includes the proprietor of a temporarily settled estate : see definition of 'proprietor' in Section 3 (2), Ben. Ten. Act. By the clear terms of Section 22 (1), Ben. Ten. Act, even as it stood before the amendment of 1907, the company's claim to occupancy rights in the holdings purchased in execution of rent decrees would not in that case be sustainable and its advocate would then lose the supposed benefit of the argument based on the use of the word 'acquire' simpliciter as it stood in the Act before 1907 without the attendant phrase 'by purchase or otherwise.'
(ii) I have already pointed out that the learned Subordinate Judge found that the occupancy holdings had been purchased by the company and its predecessors in execution of rent decrees. There is not much discussion on the point in the Subordinate Judge's judgment; it may be because it was not seriously pressed before him by the defendant. Though an issue was framed on the point, the plea taken in the written statement is vague to a degree (para. 7 of the written statement). Be that as it may, the evidence on the point is one-sided. The sale certificates produced are in the ordinary form. They do not show that the sales were in execution of rent decrees under Oh. 14, Tenancy Act, nor do they show that they were in execution of money decrees under the Code of Civil Procedure, but there are ample admissions on the part of the Government that they were rent sales, as also admissions that the total area of such purchases was 1339.84 acres. In the settlement report of 1910 (Ex. 18 (d). B 138) these facts are stated in para. 12 at p. 144, the significant words that these jotes which covered an area of 1339.84 acres were the 'jotes of defaulting tenants' being used. It was absolutely necessary for Mr. Ezekiel, the Collector, whose order is referred to in that paragraph, to be satisfied both as to the area and the fact of purchase as alleged by the company, before he could reverse the Assistant Settlement Officer and direct the same to be recorded in the possession of the company in occupancy right. Similar statements are made in Ex. A 2 (B-152), Ex. B (B-154) and in para. 13 of the settlement report of 1928 [Ex. B (1)-B. 169 at 183]. The area of 1339.84 acres was the area of the holdings purchased after 1887 and before 1907 and did not include any holding purchased after 1907. The Subordinate Judge has accepted, for the reasons stated by him in his judgment, and the findings on this point have not been challenged before us by the learned Senior Government Pleader, that the area pointed out by the company to the Assistant Settlement Officer Mr. Mahsud as the area of the jotes purchased by it and its predecessors was 1339.84 acres and the lands in suit have been identified with what was pointed out to that officer.
The learned Senior Government Pleader however relying upon the statement made by the plaintiff's witness No. 10 in his cross-examination at p. A-821. 45 urges that the jotes purchased by the company between 1908 and 1910 were also pointed out to Mr. Mahsud and therefore 1339.84 acres in suit also include some holdings which had been purchased by the company after 1907. The answer given by this witness has obviously been recorded following the question as put by the cross-examining pleader. The matter however is not left in doubt. The survey began in January 1906 with Mr. Nirode Roy as the Assistant Settlement Officer. Mr. Mahsud succeeded him in November 1906 and was in charge at least up to October 1910. It appears from the order sheet of these proceedings that all the sale certificates had been produced by the company before Mr. Mahsud some time before September 1907 and had been identified on the locality partalled as the technical vernacular word is (O. 52 dated 17th September 1907 Ex. E.B 128). No sale certificates of dates later than 1907 could accordingly have been produced before that officer. I accordingly hold that the jotes had been purchased by the company and its predecessors in execution of rent decrees and the total area of these so purchased between 1887 and 1907 was 1339.84 acres and they have been identified with lands in suit.
(iv) and (v). I have already found that the company never abandoned its claim to these jotes or its claim to occupancy rights therein. Nor is the fact established that the Government recognized the company's claim to hold them in occupancy right. In the settlement proceedings of 1910 Mr. Mahsud refused to recognize its claim as occupancy ryot. Mr. Ezekiel on appeal by the company directed Mr. Mahsud to re-cognize its claim and to record its possession in occupancy right. The record was accordingly prepared but when the proceedings were sent to the Commissioner of the Division for confirmation, because he was the authority to finally approve the proposed settlement with the company for another term of 15 years, he at once raised an objection. Correspondence passed between him and the then Collector Mr. Mac. Alpin who had succeeded Mr. Ezekiel. Mr. Mac-Alpin, with whom the Commissioner concurred held that the claim of the company to occupancy right was unfounded. [Ex. A(1).B. 148; Ex. B-B 154 and Ex. C-B 156]. The company filed a petition (Ex. F-B 151) in which it agreed to accept the settlement with a reservation to agitate their claim further and on the said petition an order was passed for correcting the Record of Rights accordingly. The fact that the entry 'occupancy rights' in the Record of Eights against these lands was not actually expunged cannot affect the matter and the company cannot take advantage of that omission. The Record of Eights was not prepared under Chap. 10, Ben. Ten. Act. It did not require final publication or any publication and was not finally published. It was kept only as a finally attested paper. I accordingly answer the fifth point against the company.
(iii) I have already found that under the Settlement of 1887 (Ex. 17 (d)-B. 62) the Watsons became farmers of rent, i.e. ijardars, and that if they became farmers of revenue their position would be that of proprietors of a temporarily settled estate. In the last case Clause (1) of Section 22, Tenancy Act, as it stood before 1907, would apply and the right of occupancy in the purchased holdings would be extinguished. As I have held that they were farmers of rent Clause (3) of the Section as it stood before 1907 would apply. That Clause was as follows:A person holding land as an ijaidar or farmer of rents shall not while so holding acquire a right of occupancy in any land comprised in his ijara or farm.
14. While the Clause stood thus a Division Bench of this Court in the year 1905 (Ramrup Mahto v. Manners (1906) 4 CLJ 209), had held without giving any reason that the word 'acquire' meant acquisition by the statutory method, that is by occupation for 12 years, and excluded acquisition by purchase. The view expressed was that an ijardar gets and retains even after the expiry of the ijara the occupancy right which was already an incident of the holding purchased by him while he was an ijardar. In 1907 the Legislature intervened and by the Amending Act 1 of 1907 the words 'by purchase or otherwise' were added after the word 'acquire.' The effect was to nullify that decision. Ordinarily by an amendment the Legislature must be taken to have intended a change in the law, but it does not necessarily follow that such is the intendment in every case. An amendment may also be intended to clarify matters. In Raghubar Mahto v. Manners (1911) 13 CLJ 568 and Sheonandan Singh v. Deo Saran Singh (1912) 15 CLJ 647 the last mentioned view of the amendment was taken by two Division Benches of this Court. The Patna High Court has followed the view expressed in the last mentioned cases: John Pier Pont Morgan v. Ramjee Ram (1920) 7 AIR Pat 97 and Ram Dheyan Singh v. Bhulotan Singh (1924) 11 AIR Pat 392. I prefer to follow the interpretation put upon the word 'acquire' in Raghubar Mahto v. Manners (1911) 13 CLJ 568 and Sheonandan Singh v. Deo Saran Singh (1912) 15 CLJ 647. The word 'acquire' is a word wide enough to connote acquisition by purchase and by inheritance, and in toy judgment the Legislature had not indicated its intention in other parts of the statute as existing before 1907 to cut down the ordinary meaning of that word. The grammatical construction must be given effect to. Right of occupancy is also an incident of a holding and would pass by transfer, and but for Clause (3) of Section 22 would have vested in the ijardar as an incident of the holding purchased by him.
15. The effect of Clauses 1 and 2 of Section 22 was considered by a Bench of five Judges in 1896 and again by the Full Bench in 1905: Jawadul Huq v. Ram Das (1897) 24 Cal 143 and Ram Mohan Pal v. Sheikh Kachu (1905) 32 Cal 386. It was held in those cases that the right of occupancy only ceased but the holding remained in the hands of the co-proprietor who had purchased the same but divested of the occupancy right, that is to say, such a purchaser held as a non-occupancy ryot. The law as laid down in the case of co-proprietors was changed by the amendment of 1907, but the words of Sub-section (3) which followed the words of Sub-section (2) before the said amendment were left unaltered. I hold accordingly, following the reasons in Jawadul Huq v. Ram Das (1897) 24 Cal 143 and Ram Mohan Pal v. Sheikh Kachu (1905) 32 Cal 386 that on the purchase of an occupancy, holding remained and he is entitled to hold the lands as a separate entity, as a non-occupancy holding. This is the view ex-. pressed in Sheonandan Singh v. Deo Saran Singh (1912) 15 CLJ 647 at p. 648 and with that view I agree. The Subordinate Judge has cited the cases reported in Watson Co. v. Koer Jogendronarain Roy (1864) 1 WR 76, Mokoondy Lall v. L.G. Crowdy (1872) 17 WR 274 and Thomas Savi v. Kunchanun Roy (1876) 25 WR 503. These can have no bearing on the case before us. They lay down the principle, which has been subsequently approved by the Judicial Committee, Jardine Skinner v. Ranee Sarat Soondari Debi (1880) 5 IA 164, that the period of occupation during an ijara cannot be reckoned, where the ijardar claims to have acquired occupancy rights under the statute, i.e. by continuous occupation for 12 years, or as Sir Lawrence Jenkins C. J. puts in Jasimuddin Sheik v. Beni Madhab Das (1913) 17 CWN 881 at page 882,
during the currency of the ijara the active operation of the possession as a means of acquiring the right of occupancy was suspended or remained in abeyance.
16. My finding therefore is that the company cannot claim occupancy right in the lands in suit, but the holdings remain and in them it has non-occupancy rights, and unless its suit is barred by time or unless no declaration can or ought to be granted on the ground noticed in point (vii) it is entitled to have a declaration that it has non-occupancy rights in the same. I have already held that prayer (ka) of the plaint includes this relief, and if it does not, the declaration in that form can be given in this suit under the prayer for relief on the principles laid down in Hiren v. Mill (1806) 13 Ves Jun 113 and Cookerell v. Dickens (1837-41) 2 MIA 353.
(vi) Limitation. - At one stage of the argument the respondent's advocate suggested that Article 14 was applicable and the starting point at least was 3rd July 1928 when the Settlement Deputy Collector on the direction of the Director of Land Re-cords rejected the company's claim to have the lands recorded as holdings in its possession as occupancy ryots, but this position was abandoned when the attention of the Government Pleader was drawn to the scope of the suit and to the Proviso to Section 111-A, Ben. Ten. Act. Both sides thereafter proceeded upon, what is the correct view, that Article 120 of Schedule 1, Limitation Act, was applicable and the controversy centred round col. 3 of the said Article. Both sides relied upon the observations of Sir Binod Mitter in Mt. Bolo v. Mt. Koklan . The respondent's advocate argued that there was an infringement of the company's right or at least an unequivocal threat to infringe it in the proceedings of 1910 and the suit is barred. On the point of law the appellant's counsel's answer is that a fresh cause of action accrued to the appellant in 1929 or at least in 1928 when there was a fresh attack on its right in the last settlement proceedings. In my judgment it is not necessary on the facts of this case to decide this point, and on the form of the relief to which the company is entitled, but in view of the fact that the matter may be carried higher up, I would later on express my views on it.
17. I have already found that the holdings have not ceased to exist but only the occupancy right. In the settlement proceedings of 1910 the Government admitted that the company held the lands in suit in non-occupancy right [Ex. B-B 154 at 155 and Ex. B (1).B 169 at 183, 1. 40]. In the Rajshahi Settlement operations the greater portion of the lands were recorded in the company's possession as non-occupancy ryot and the rest as occupancy ryot. Up to this stage the position was not taken by the Government that the holdings had also merged. Only in the last settlement proceedings of 1928-29 the holdings were held as merged in the ijara. [Ex. B (1) at p. B.184, 1. 25.35]. The first challenge to the company's right to hold these lands as parts of holdings and in non-occupancy rights was in 1928 and the suit being filed within six years of that date is within time.
18. On the question of law indicated above, my view is that a fresh attack or invasion gives rise to a new right to sue for declaration. If there be successive attacks at intervals, time would run from each of these attacks and if the last attack which is made the basis of the suit be within six years of the suit, the suit will be in time. I do not propose to base any view on the theory of a continuing right, which was one of the grounds on which this Court based its decision in Chukkun Lal v. Lolit Mohan (1893) 20 Cal 906, a view which has later on been criticized in this Court: see Mohabharat Shaha v. Abdul Hamid (1905) 1 CLJ 73 at p. 81, and in the Madras High Court Ponnu Nadar v. Kumaru Reddiar : AIR1935Mad967 . I cannot however agree with the view ex. pressed in Ponnu Nadar v. Kumaru Reddiar : AIR1935Mad967 that time would run from the first attack or invasion. That would introduce an important word in col. 3 of Article 120. When the plaintiff remains in possession, though frequent successive threats and attacks on his title are made by the defendant, his title is not extinguished and so long as his title subsists he has the right to sue for declaration and his suit would be considered to be within time if he makes a threat or attack made within six years the foundation of his suit. The view I am taking has been taken in a series of cases decided by this Court, the Patna, the Bombay and the Allahabad High Courts and most of them are collected at the foot-note to p. 1450 of U. N. Mitra's Law of Limitation, Vol. 2, Edn. 6.
19. There remains the last contention made by the Senior Government Pleader. A Court may refuse in its discretion a declaration of right if all necessary parties are not before it, but I do not consider that the sub-tenants of the company are necessary parties. They have not denied the company's right. (None of these sub-tenants laid any claim inconsistent with the company's claim, but the Assistant Settlement Officer on instructions received from the Director of Land Records treated the holdings as merged in the ijara: D. W. 3-A 88 at the top of p. 93). There is evidence that these sub-tenants are without protest receiving rent receipts from the company describing them as korfa (under-ryots) under an agreement referred to by P. W. 10 at the top of his deposition at p. 75. Apart from these facts the company has sued under the Proviso to Section 111.A, Ben. Ten. Act, for a declaration by reason of there being the omission from the Record of Eights of the holdings in its possession in ryoti right. To such a suit the sub-tenants are not necessary parties. If any other view be taken the tenants, thousands in number of a whole mehal which may consist of hundreds of mouzas with thousands of tenants would have to be made parties if the whole mehal were let to a tenure-holder whose status had been according to him wrongly recorded by the Settlement Officer.
20. I accordingly hold that the sub-tenants are not necessary parties and the company is entitled to a declaration that the lands in suit comprise holdings held by it in non-occupancy right.
21. The result is that the appeal is allowed to this extent. As the plaintiff-appellant has not been able to maintain its claim of occupancy right, it should have half of the costs of the lower Court and half of the costs of this Court, with the exception of the paper-book costs. As a mass of unnecessary papers has been included by the appellant in the paper-book the appellant company is to get only a fourth of the paper-book costs. We assess the hearing fee at Rs. 375 in this appeal, which amount the appellant is to get from the respondent.
22. This is an appeal by the Midnapore Zamindari Company against the judgment and decree of the Additional Subordinate Judge, District Nadia whereby the appellant's suit has been dismissed. (After stating the facts his Lordship proceeded further.) The next and indeed the most important question for determination is whether the predecessors-in-interest of the plaintiff company acquired occupancy right in the lands so purchased by them during the abovementioned period. The plaintiff company's contention is that the kabuliat Ex. 17 (d) of 1887 is not a lease creating the relationship of landlord and tenant, that is a farming settlement of revenue and not of rent and that therefore the Bengal Tenancy Act would not govern the relationship created by this arrangement between the Government and the predecessors-in-interest of the plaintiff. On these grounds it was argued that Section 22 (3), Ben. Ten. Act, which restricted the acquisition of the right of occupancy by an ijardar in the land of his ijara would not apply. The next branch of the argument is that even if this Section applied it would not have the effect of restricting the powers of the ijardars or farmers of acquiring occupancy right by purchase at rent sales, as the word 'acquire' in Section 22 (3), Ben. Ten. Act, as it stood before the amendment of 1907, had a narrow and technical meaning which did not include acquisition by purchase. The contention of the defendant is that the farming settlement was nothing more or less than a farming of rent and that thereby the grantee became an ijardar or farmer of rent within the meaning of Section 22 (3), Ben. Ten. Act, that this sub-section has imposed a disability upon a person holding this position from acquiring by any means whatsoever a right of occupancy in the land of the ijara, and that therefore the plaintiff company's claim in this respect must fail. It is clear therefore that in order to dispose of the question whether the plaintiff has acquired occupancy right in the land in suit, the trup import or effect of the kabuliyat Ex. 17 (d) has to be determined first.
23. I have no hesitation in coming to the conclusion that this kabuliyat is a lease whereby the plaintiff's predecessors were constituted farmers of rent or non-permanent tenure-holders and that the relationship between Government and them was that of landlord and tenant, a relationship governed by the provisions of the Bengal Tenancy Act. A pertinent question which naturally forces itself upon one's attention in this connexion is this : What was the position of Government with respect to Char Marichardiar which was being farmed out by this kabuliyat Ex. 17 (d)?. The answer is to be found in the pleadings of the plaintiff company and in the documents which the plaintiff company has put in evidence. In para. 1 of the plaint the plaintiff says that Mahal Char Marichardiar of touzi No. 3520 of the Collectorate of Nadia is a Government khas mahal. That the plaintiff recognized that the Government is the proprietor of this mahal appears not only from the plaint but also from Ex. 23 (c), a letter dated 26th December 1885 from A. P. Mac-Donnel Esq., Secretary to the Government of Bengal, to the Secretary to the Board of Revenue: vide p. 111 of Part II, Vol. 1 of the paper-book. There the secretary states that Messrs. Watson & Co. Ltd., agreed to acknowledge the proprietary right of Government in this mahal and that on this footing a farming lease for 20 years was recommended to be granted to them of Char Marichardiar. I would also refer to Ex. 28 (p. 166 of Part II, Vol. 1 of the paper-book) which is a memorandum of appeal filed by the plaintiff company in 1928. In para. 2 of this petition is an admission that the Government were recognized as proprietors of this Char by Messrs. Robert Watson & Co. Ltd. It is unnecessary to multiply the evidence.
24. It is well established that the property let out in farm to the plaintiff company is a khas mahal and that the Government proprietary right in the property was recognized by the plaintiff company. A khas mahal is an estate held by Government standing in the place of the proprietor : vide Fields Regulation of the Bengal Code (1875) p. 41. Khas mahala are estates under the Bengal Tenancy Act of 1885 and the Government is the proprietor owning each estates. The Government is also a landlord like other landholders : vide Section 3, Sub-section (1) (2) and (4), Ben. Ten. Act, 1885 and Mitra's Land Laws of Bengal, Edn. 2, p. 32. The Government being a proprietor or landholder with respect to Char Marichardiar, the settlement of the estate with Robert Watson & Co. Ltd. in 1887 in terms of the kabuliyat Ex. 17 (d) could amount to nothing but a farming lease of rent in which the Government was the landlord and Robert Watson & Co. Ltd. the tenant. The plaintiff relies upon the fact that the word revenue and not rent is used to indicate the payment to be made by Robert Watson & Co. Ltd. to Government under the terms of the settlement and upon the stipulation that the dues would be realized in case of default according to the provisions of Act 7 of 1880 (B. C.) which normally provides the machinery for the collection of revenue. In my opinion the use of the word 'revenue' does not necessarily signify that the relation, ship of landlord and tenant was not being established by this settlement. In this connexion I can do no better than quote a passage at p. 52 of Edn. 2 of Mitra's Land Law of Bengal, Behar and Orissa which runs as follows:
The settlement of land revenue in temporarily settled estates and khas mahals takes place periodically. The Government is a landlord within the meaning of the word as used in the Bengal Tenancy Act, and though the amount payable directly to Government in the khas mahals is rent, the paramount title of the State carrying with it the right to receive revenue and the proprietary right to receive rent uniting in the Government, the proprietary interest merges in the paramount title, and rent in such cases is called revenue.
25. The word revenue has been used loosely in this kabuliyat as being synonymous with the word rent. The provision regarding the use of the machinery of the Public Demands Recovery Act (Act 7 of 1880) for realizing arrears from the grantee of the settlement does not in my opinion indicate that a settlement of revenue was being made. If this was a settlement of revenue the Public Demands Recovery Act would come into operation automatically and there would be no need to stipulate in the deed that its provisions would be applied. The introduction of this clause may be taken to indicate that the settlement constituted a farming of rent and not of revenue. I hold that the arrangement of 1887, the terms of which are embodied in the kabuliyat Ex. 17 (d), constitute a farming lease whereby the Messrs. Robert Watson & Co. Ltd. become ijardars or farmers of rent, in other words they became non-permanent tenure-holders. In this connexion I would mention that the standpoint, viz. that Sec 22 (3), Ben. Ten. Act, would not apply because the Settlement of 1887 was a farming of re-venue and not of rent, was not taken till a very late stage. It seems to have been first thought of at the time of argument in the Court below. In the plaint stress was laid on the fact that the occupancy holdings were purchased before the amendment of the Bengal Tenancy Act of 1907. It was assumed that the Act as it stood before 1907 would govern the relationship between the parties created by the Settlement of 1887 and it was contended that the Act as it stood before 1907 did not debar the plaintiffs from acquiring the status of occupancy raiyats in the land of the settlement. It was nowhere suggested that there was no relationship of landlord and tenant between the plaintiff and the Government or that the Bengal Tenancy Act did not govern the relationship between these two-parties, nor was it suggested that the settlement constituted a farming of revenue and not of rent: vide para. 3 of the plaint. I would refer also to the petition of the plaintiff company dated 6th July 1928 to the Sub-Deputy Collector of the Settlement of Khas Mahal Marichardiar. In that petition the position was made quite clear. The plaintiff made a distinction between the 'jotes' acquired before 1907 and those acquired thereafter and claimed to be recorded as occupancy raiyats, with respects to the-'jotes' purchased before 1907 and as intermediate tenure-holders with respect to the-'jotes' purchased after 1907 : vide Ex. 14 printed at page 162, part 2, Vol. 1 of the paper-book.
26. In its memorandum of appeal to Director of Land Records in 1912, the Midnapore Zamindary Co. Ltd., applied to set aside the order of the Assistant Settlement Officer whereby their prayer to be recorded as occupancy raiyats with respect to the property in suit had been refused. In this memorandum the plaintiff company said that it was an ijardar and it claimed to be recorded as occupancy raiyat in the land purchased before 1907 on the sole ground that the Bengal Tenancy Act as it stood before 1907 did not debar it from acquiring such right. The present attitude was not taken up then : vide Ex. 28 printed at p. 66 of part II, Vol. 1 of the paper-book. I do not suggest that the plaintiff has debarred itself by its previous conduct from taking: up the position now adopted but I refer to these circumstances merely to show how the parties themselves interpreted the document Ex. 17 (d). Having decided that the plaintiff is an ijardar or farmer of rents within the meaning of Section 22 (3), Ben. Ten. Act, I shall now deal with the question whether by virtue of the provisions of this Section the plaintiff and its predecessors were debarred from acquiring occupancy right in the land of the ijara. The Section before the amendment of 1907 stood thus: A person holding land as an ijardar or farmer of rents shall not while so holding acquire a right of occupancy in any land comprised in his ijara or farm.
27. The word 'acquire' has to be interpreted. Learned Counsel for the appellant would attach a narrow and technical meaning to this word. He says that the phrase, 'acquire a right of occupancy' means acquire a right of occupancy by operation of law as a result of 12 years' occupation as a raiyat and that acquisition by purchase is not contemplated in this sub-section. The judicial decisions on this point are conflicting. In my opinion, whenever possible, words should be given their ordinary dictionary meaning unless it is shown that they have acquired a special technical meaning. The word 'acquire' has not anywhere in the Bengal Tenancy Act been given a special or technical meaning. In the plain sense of the word 'acquire' means to gain by oneself and for oneself or to come into possession of; and I propose to attach this meaning to the word when construing Section 22 (3), Ben. Ten. Act, as it stood before 1907. In Ramrup Mahto v. Manners (1906) 4 CLJ 209 the word 'acquire' in Section 22 (3), Ben. Ten. Act, was given the narrow technical meaning which learned Counsel for the appellant would attach to it.
28. A contrary view was taken in two subsequent cases also of this Court where it was held that the word 'acquire' means acquire by purchase or otherwise. I refer to the cases in Raghubar Mahto v. Manners (1911) 13 CLJ 568 and Sheonandan Singh v. Deo Saran Singh (1912) 15 CLJ 647. The amendment of Section 22 (3) in 1907 has adopted the interpretation given to the word in the last two decisions; instead of using the word 'acquire' alone in the Section the words acquire by purchase or otherwise' have been used. This amendment in my opinion was not made to intro-duce any change in the law but to clarify the meaning of the word 'acquire' which had become somewhat clouded by the interpretation put upon the word by judicial decision. As stated above I propose to construe the word 'acquire' to mean 'acquire by any means whatsoever.' I hold that 'the plaintiff company's predecessors and the plaintiff company are debarred by reason of the provisions of Section 22 (3), Ben. Ten. Act, from acquiring occupancy right in the lands in suit. This does not mean however that the plaintiff company's predecessors got nothing by their purchase of 1339'84 acres in execution of rent decrees. Section 22 (3), Ben. Ten. Act, as it stood before 1907, debarred an ijardar from acquiring occupancy right by purchase or otherwise in the land of his ijara, it did not debar him from acquiring a non-occupancy rayati interest. The result is that if an ijardar purchases an occupancy holding be acquires it as a non-occupancy holding. This was the view taken by Mookerjee J. in 15 C L J 617,3 at p. 648.
29. The learned Subordinate Judge seems to have overlooked this aspect of the case. He seems to have thought that the plaintiff claimed occupancy right and nothing else in the land in suit. The plaint however indicates in prayer (ka) that there was an alternative declaration claimed, viz. a declaration to a 'right of possession'. Even if there was no such prayer the plaintiff would be entitled to get this relief under the prayer (ga) for further and other reliefs. I hold therefore that the predecessors-in-interest of the plaintiff company by their purchases before 1907 acquired a non-occupancy raiyati interest in the 1339.84 acres of land which forms the subject-matter of this suit. In the Court below it seems to have been argued and argued successfully that the plaintiff company had abandoned its claim to occupancy right in 1911. The learned Subordinate Judge at p. 106 of Part 1 of the paper-book says categorically that the plaintiff had given up its claim to occupancy right. At p. 107 (ibid) he says again that the plaintiff company 'agreed not to claim the occupancy rights by filing the petition Ex. F before Mr. Mac-Alpin.' The learned Judge has fallen into serious error in this matter. The plaintiff company never at any stage gave up this claim. Ex. P is printed at p. 151 of Part 2, Vol. 1 of the paper-book; therein the plaintiff company states explicitly that it accepts the lease from Government subject to its objection that they should be recorded as occupancy raiyats in respect of lands in which occupancy rights were acquired before 1907 and with the 'reservation of their right to move the higher authorities for the above purpose.' The learned Sub-ordinate Judge obviously forgot the import of Ex. F when he made the observations mentioned above.
30. I will also deal now with the contention of the appellant that the Government recognized its occupancy right in the Petty Settlement of 1910 and also in the Diara Settlement of Rajshahi in 1914-1915. There is no force in this contention. In 1910 the Settlement Officer Mr. Mahsud at first refused to record the company as occupancy raiyats. The then Collector, Mr. Ezekiel, however directed that the company should be so recorded. This order was set aside by the Commissioner who held the view that the company were debarred from acquiring such right: vide Ex. E order sheet of the Court of the Settlement Officer, Nadia, Re : Survey and Settlement of Marichardiar, p. 122, Part 2, Vol. 1 of the paper-book and Ex. C, the order of the Commissioner at p. 156 ibid. Thus there was no recognition by the Government of the plaintiff's occupancy rights in 1910. As regards the statement that in 1914-1915 the plaintiff company were recorded as occupancy raiyats of the lands in suit in the Settlement Record of Rajshahi it is equally inaccurate. Except in two instances there was no such entry made and learned Counsel for the appellant company very properly abandons this point. There was thus no abandonment by the plaintiff company of its claim to occupancy right nor was there any recognition of such right in the plaintiff company by the Government.
31. On behalf of the respondent it was pressed that this suit is barred by limitation and that the decision to the contrary of the learned Subordinate Judge is erroneous. The learned advocate puts his case regarding limitation in two ways. First, he points out that on 26th January 1912 the Commissioner of the Presidency Division rejected an appeal by the plaintiff company against an order of the Collector refusing to record the company as occupancy raiyat in the land in suit and directing them to he recorded as non-occupancy raiyats. In rejecting the appeal the Commissioner held that the plaintiff company had not acquired occupancy right in the land in suit: vide Ex. C, certified copy of the decision in appeal of the Commissioner of the Presidency Division regarding the settlement of Marichardiar, page 156, Part 2, Vol. 1 of the paper-book. The defendant argues that the plaintiff should have brought this Suit within six years of this decision as Article 120, Limitation Act, governs the present suit. Secondly, the defendant relies on Article 14, Limitation Act, which prescribes one year as the period of limitation for a suit to set aside an act or order of an officer of Government in his official capacity. It is contended that the present suit is one for setting aside the order of the Commissioner and that therefore it should have been brought within one year of 1912.
32. I shall deal first with the argument regarding the applicability of Article 14, Limitation Act. The short answer to this contention is that the suit is for a declaration of the plaintiff's title and that it is not a suit for setting aside the order of the Commissioner. The plaintiff company would be perfectly satisfied if it can get the declaration prayed for without in any way disturbing any order passed by the Commissioner. To succeed in this suit it is not necessary for the plaintiff to get the Commissioner's order set aside. In my opinion this suit is not one which is affected by Article 14, Limitation Act.
33. As regards the first branch of the argument on the question of limitation I do not think there can be any doubt that Article 120, Limitation Act, applies to this suit but I am not inclined to accept any other portion of the argument of the learned advocate for the respondent on this point. Article 120 says that the suit must be brought within six years from the date 'when the right to sue accrues'. These run from the date when the right to bring such a suit first accrues. The plaintiff company is in possession of the property. The order of the Commissioner has not dispossessed the plaintiff company nor has it extinguished any right of the plaintiff in the property. In spite of the order of the Commissioner all the rights which the plaintiff had in the property before the passing of the order still exist. The order of the Commissioner cast a cloud on the plaintiff's title but the plaintiff was not bound to institute a suit to dispel the cloud. The plaintiff may have thought that the cloud was not worth troubling about or that the cloud would disappear of itself. I realize that after the lapse of six years the plaintiff would not be able to sue for the removal of the cloud created by this particular order of the Commissioner but if thereafter a fresh cloud was thrown upon the plaintiff's title it seems to me that a fresh cause of action would arise and the plaintiff would be entitled to sue upon this fresh cause of action if the suit be brought within 'six years of the accrual thereof. To hold other-wise would lead to iniquitous results. Suppose A were to do some act in 1900 challenging B's title to certain land and then remain quiescent for ten years: B who did not take a serious view of this challenge does nothing during these ten years. Thereafter A again does some act whereby B's title to the land is seriously put in question. It would be ridiculous to say that B could get no relief against this fresh invasion of his title because he had not taken steps against A within six years of 1900. In my opinion when there have been successive invasions of a person's right each invasion gives rise to a fresh cause of action and furnishes a fresh starting point for computation of the period of limitation. This principle would apply to all types of suits, declaratory or otherwise. I would refer in this connexion to the case in Joy Narain Sen v. Srikanta Roy (1922) 9 AIR Cal 8 at p. 210. Applying this principle to the facts of this case, I find that the suit is not barred by limitation. The plaintiff company bases its cause of action on the final publication of the Re-cord of Eights which was made on 31st May 1929. In this record the plaintiff company's interest in the land in suit was not recorded. This constituted a denial of the plaintiff's title and furnished the plaintiff company with the cause of action of the present suit. As this suit had been brought within six years of 1929 I hold that it is not barred by limitation.
34. One other point urged on behalf of the respondent needs consideration. It is pointed out that the persons who have been recorded as holding the lands in suit directly under Government have not been made parties to the suit and it is urged that in their absence this Court should not give the plaintiff the declaration prayed for. It is said that the granting of a declaratory decree is discretionary and that this discretion should not be exercised in favour of the plaintiff when persons who would be affected by the decree are not before the Court. There is no point in this contention. These persons have not in any way challenged the plaintiff's title and they are neither necessary nor proper parties to the suit. In the circumstances mentioned above the decree of the Court below must be modified and this appeal must be allowed in part. The plaintiff company's title as non-occupancy raiyat in the land in suit is declared. I agree with what my learned brother has said regarding the paper books and for the reasons mentioned by him in his judgment I concur in the order that he has passed in this appeal.