Shamsul Huda, J.
1. The defendants Nos. 3 to 6 are the appellants before us. The plaintiff brought his suit for a declaration that defendants Nos. 1 to 3 have no ganti interest in the disputed Mehal, that the entry in the Record of Rights was incorrect and that such entry, so far a it recognises the existence of a ganti right in the names of defendants Nos. 1 to 3 and the predecessors of defendants Nos. 4 to 7, may be ordered to be expunged. He made other prayers in the plaint to which it is unnecessary to refer.
2. The facts of the ease are set forth in the judgment of the Court below and need only be briefly stated. It appears that the Mehal in respect of which the suit is instituted was settled for a term of years with one Prannath Dhar. Prannath had created a ganti interest in favour of some of the defendants or their predecessors. His interest in the Mehal was sold on the 10th January 1906 by reason of his default in payment of Government revenue and was purchased by the plaintiff in the present suit.
3. It appears that shortly after the plaintiff's purchase on the 23rd June 1906, the Settlement Officer settled the rent payable for the Mehal and the settlement was made on the basis of the rent payable by the gantidars. The settlement holder, that is, the plaintiff in this suit, executed a kabuliyat in the year 1908 and in that kabuliyat he agreed to respect the recorded rights possessed by the under-tenure-holders, rights of the village headman and Ors. in the said estate. It cannot be denied that the right of the gantidars was a right that was at the time recorded.
4. The question that arises for our considerations is this:-- Can the plaintiff, having agreed to respect the right of the gantidar tenants, now ask for a declaration that no ganti right existed? It seems to me that on the authority of the two cases, Tapanidhi Raghunath Puri v. Pitambar Gajendra Mahapaty 5 C.L.J. 67 and Chandramoni Mohanti v. Manmatha Nath Mitter 5 Ind. Cas. 301 : 11 C.L.J. 68 he is bound to recognise the ganti tenure and cannot question its existence.
5. The learned Judge has decreed the plaintiff's suit on the findings that the gantidars were never in possession and exercised no right as gantidars. In my opinion that finding does not dispose of the question. It is not said that the plaintiff has acquired any title by adverse possession. If he cannot question the title of the gantidars by reason of the kabuliyat which he executed, it seems to me that he cannot get a declaration that the ganti right does not exist.
6. It has been argued before us that some of the gantidars did on certain occasions renounce all claim to the ganti. The answer is that the suit is not based on the ground of abandonment. There could be no abandonment by some of the gantidars only. No issue was raised on this point.
7. On behalf of the respondents reliance has been placed on the cases of Gour Chandra Saha v. Mani Mohan Sen 32 C. 463; Jahandar Baksh Mallick v. Ram Lal Hazra 5 Ind. Cas. 565 : 11 C.L.J. 364 : 11 C.W.N. 470 : 37 C.449 and Jamna Das v. Ram Autar Pandey 13 Ind. Cas. 304 : 16 C.W.N. 97 : 11 M.L.T. 6 : 9 A.L.J 37 : (1912) M.W.N. 32 : 15 C.L.J. 68 : 14 Bom. L.R. 1 : 21 M.L.J. 1158 : 34 A. 63 : 39 I.A. 7. (P.C). We have examined these cases and, in our opinion, they do not affect the present question.
8. It has also been argued before us that the original gantidars have parted with their ganti interest in favour of defendants Nos. 8, 9 and 10 ans. therefore, the original gantidars have no rights to prefer any appeal to this Court as they have no longer any interest left in the ganti. In my opinion that question cannot be gone into. The defendants explain in their written statements that these sales were merely colourable transactions and the purchasers were mere benamdars. No issue was raised on the question and such controversy cannot, for the first time, be raised in second appeal. I, therefore, think that the decision of the Courts below decreeing the plaintiff's suit cannot be supported and must be set aside. I would accordingly decree this appeal with costs and dismiss the suit of the plaintiff with costs of all the Courts.
9. I agree.