1. All these appeals were, with the consent of the parties, heard together, the points that were involved being common to all of them, They arose out of suits brought by a number of tenants of the Bhowal Raj for a declaration that certain certificates issued against them were without jurisdiction and for an injunction to restrain the defendants from taking any steps in execution of those certificates. What happened in the cases was this: The Court of Wards was in possession of the entire sixteen annas of this estate till 15th August 1919 when the four annas share of one of the owners defendant 4 Srimati Ananda Kumari Devi, was released with the result that the Court of Wards remained in possession of the twelve annas share only while the four annas share of defendant 4 came into her possession.
2. In 1920 Ananda Kumari filed an application Under Section 158-A, Ben Ten. Act, to realize her share of the rent by certificate procedure and this application was granted on certain conditions, the conditions that were imposed being that the certificate procedure would apply to Ananda Kumari's share as long as the remaining twelve-anna share of the estate would remain under the Court of Wards and as long as the four-anna share of defendant 4 would be managed by the Manager of the remaining twelve-anna share, under the Court of Wards. Thereafter, the Manager under the Court of Wards sent requisitions for certificates against the plaintiffs for the whole sixteen-anna rent due from them and certificates were duly filed by the certificate officer. The suits which have given rise to the present appeals were filed for a declaration that these certificates were ultra vires and without jurisdiction. The defence was that there was nothing wrong in the certificates. This defence found favour with the Courts below and the Courts below dismissed the plaintiffs' suits. The plaintiffs have come up to this Court in second appeal.
3. The chief point in controversy before us has been the competency or otherwise of the certificates. On behalf of the appellants it was said that the application by Ananda Kumari Under Section 158-A and the order granting it were ultra vires, the contention being that Anand Kumari was only a co-sharer landlord without any separate collection and therefore was not entitled to apply Under Section 158-A. According to the learned advocate for the appellants, where there are more than one landlord with joint collection, an application Under Section 158-A, before it can be legitimately granted, must coma from the entire body of landlords. This contention, so far as it goes, seems to me to be sound, having regard to the provisions of Section 158-A, Sub-section 9, Ben. Ten. Act, the reason being that a certificate cannot be issued in respect of the share of the rent of one co sharer landlord only when the collection is joint. But in the present case, so far as the twelve-anna landlords were concerned there was no necessity of making any formal application Under Section 158-A as the statute had already given them the right which such an application could give them. As has been said before, the application of Ananda Kumari was granted on the condition that her estate should also be managed by the Manager of the other twelve-anna co-sharers. Therefore, although strictly speaking, there was an application under Section 158-A, coming from one of the co-sharer landlords only, in effect, when the application was actually granted, there was such an application from the entire body of landlords. At any rate the objection that was raised in the present case on the ground that the application had been actually filed by a cosharer landlord only whose collection was not separate is of a very technical nature in the circumstances of the present case. On behalf of the appellants it was said that the objection was not technical but of a a substantial nature in view of the fact that the action of the Manager was mala fide and that the certificate procedure was adopted only for the purpose of unnecessarily harassing the tenants. But there was no allegation of mala fide made against the Manager in the plaints of the plaintiffs and the point was not canvassed in either of the two Courts below. The main point raised on behalf of the appellants must therefore in my opinion fail.
4. There were one or two other small points taken before us. It was said that as the manager was acting in his capacity as a manager under the Court of Wards in respect of the twelve-anna share, and as a private manager in respect of Ananda Kumari's four-anna share the two claims one in respect of twelve-anna share and another in respect of four-anna share were distinct and therefore could not be joined together for the purpose of certificate procedure. I do not think that there is much substance in this contention. The procedure that would be applicable to the twelve-anna share under the Court of Wards would be the procedure as laid down in the Public Demands Recovery Act, 1913, and Under Section 158-A, Sub-section 7, Ben. Ten. Act, the same procedure would be applicable to Ananda Kumari's four anna-share of the rent. Lastly it was contended that even if the certificates are held to have been competent no proper discretion had been exercised by the authorities before issuing them. Whether there had been a proper discretion or not is a question of fact and that being so, it cannot be allowed to be raised here in second appeal for the first time, no definite issue having been raised in the Courts below as to whether the certificates were bad on the ground that no proper discretion had been exercised before issuing them. The cases appear to have been fought out in the Courts below on one ground only, viz., whether the application of Ananda Kumari Devi Under Section 158-A and the order granting the application were ultra vires and without jurisdiction. All the contentions raised before us on behalf of the appellants must, therefore, fail, and all the appeals must accordingly be dismissed with costs to the respondents represented by the manager under the Courts of Wards, hearing fee being assessed at Rs. 56 for all the appeals.
5. I agree.