1. This is an appeal on behalf of the defendant in a suitfor declaration that an entry in the khewat of the Dewar Settlement in respectof Mouza Malida is incorrect. The case for the plaintiffs is that they and thedefendants are descended from a common ancestor, that the rule of primogenituregoverns the family, that there-under the eldest member of the senior branch ofthe family succeeds to the impartible zamindari, and that the members of thejunior branch are entitled to a maintenance grant. The plaintiffs allege thatthe property in dispute is held by them as maintenance grant, but that in theDewar Settlement they have been recorded as ticcadars liable to pay rent at asum assessed by the Settlement authorities. They, therefore, seek a declarationthat in so far as bhogra or nij jote lands are concerned, they hold them as amaintenance grant and are not liable to pay any rent in respect thereof to thezamindar. These allegations are controverted by the defendant who further urgesthat the suit is not maintainable under the provisions of the Central ProvincesLand Revenue Act, 1881. The Courts below have overruled the contention of thedefendant and made a decree in favour of the plaintiffs on behalf of thedefendants that decree has been assailed substantially on two grounds, namely,first, that the suit is not maintainable under the Central Provinces LandRevenue Act, 1831, not at any rate, till the Secretary of State for India inCouncil has been joined as a party defendant, and secondly, that the plaintiffshave not established the particular grant specified in their plaint.

2. In so far as the first of these contentions is concerned,the argument for the appellant divides itself into two branches, namely, first,that the suit is not maintainable at all, and secondly, that if it ismaintainable the Secretary of State for India is a necessary party.

3. In support of the first branch of the contention,reference has been made to Section 152 of the Central Provinces Land RevenueAct, 1881, clause (a) of which provide that no Civil Court shall entertain anysuit instituted or application made to obtain a decision or order on any matterwhich the Governor-General in Council, the Chief Commissioner or a Revenue orSettlement Officer is by the Act empowered to determine or dispose of Referencehas been made particularly to clause (12) of sub-section (b) of Section 152which refers specifically to claims to set aside corrections of entries orrevision of records under sections 120, 121 and 122; in respect of thesematters it is provided that no Civil Court shall exercise jurisdiction. Section120 provides that any entry in the Record of Rights may, after such record hasbeen made over to the Deputy Commissioner, be corrected by the DeputyCommissioner on the application, of any person interested or of his own motion.Such correction may be made on one or more of the grounds stated and on noothers. Of the grounds specified, clause (b) provides for the case in which adecree has been made in a suit brought under Section 83 by which the entry hasbeen declared to be erroneous. Section 83 then provides that any person deeminghimself aggrieved by any decision under Section 78 or by any decision of theChief Settlement Officer in appeal therefrom or by any entry made in the Recordof Rights us to any matter referred to in that section, may institute a suit inthe Civil Court to have such decision set aside or such entry cancelled oramended. To this there is added a proviso which lays down, first, that when anysuit under this Section is instituted for the cancellation or amendment of anentry, the Government, if it so desires, and all persons interested in theentry shall be made parties; and in the second place, that no person by whomthe Record of Rights was signed and no person claiming through or under themshall, without the previous sanction of the Chief Commissioner, institute anysuit with a view to modify or set aside any entry relating to any mattermentioned in Section 70 or 77 clauses (b), (c) or (d). It has been argued onbehalf of the plaintiffs-respondents that the suit is one within the scope ofSection 83 of the Central Provinces Land Revenue Act of 1881; but that theproviso does not operate as a bar because although the Record of Rights wassigned by them, the suit is not one instituted with a view to modify or setaside any entry relating to the matters mentioned in Section 70 or 77 clauses(b), (c) or (d). This contention is clearly well founded. Section 70 refers toa decision, by the Settlement Officer, of disputes amongst share-holdersregarding the management of the mahal. Section 77 Clause (b) refers to thedetermination of a dispute by the Settlement Officer regarding the rights ofpersons resident in the village or holding lands comprised in the village, inor to the common lauds of the mahal and its produce and the village site.Clauses (c) and (d) refer to decisions of disputes relating to customs aboutirrigation or rights of way or other easements and to any other rights orcustom which the Chief Commissioner directs to be recorded, in theadministration paper. It is clear, therefore, that the second branch of theproviso has no application to this case and does not operate as a bar to theinstitution of a suit under Section 83. It was next suggested that Section 65Asubsection (4) clause (d) operates as a bar. That clause provides that in theevent of any dispute arising between the proprietor and the protected ticcadaras to what is a fair and equitable ticca jama, the matter shall be referred tothe Deputy Commissioner whose decision shall, subject to revision by the ChiefCommissioner, be final. This clause, in our opinion, has no application to thecircumstances of the present case. No doubt, the plaintiffs have been recordedas protected ticcadars and the defendant the proprietor. The question whicharises between the parties is as to the true status of the plaintiffs Theplaintiff do not seek to have a fair and equitable ticca jama assessed inrespect of the land of which they have been deemed to be the protectedticcadars. Consequently neither Section 63 nor Section 65A Sub-section (4) Clause(d) operates as a bar to the institution of the suit. It cannot also besuggested that the suit is open to objection under Section 42 of the SpecificRelief Act. The plaintiffs did not seek for a consequential relief because itis not necessary for them to do so. If they obtain a declaratory decree, itwill be open to the Revenue Authorities under Section 120 to correct or amendthe Record of Rights. It is clear, therefore, that the suit is maintainable.

4. In so far as the second branch of the contention isconcerned, the question arises whether the suit has been improperlyconstituted, because the Secretary of State for India in Council has not beenjoined as a party defendant. With reference to this objection, reliance hasbeen placed upon the first branch of the proviso to Section 83 and to thedecision of this Court in the (sic) of Ujal Singh v. Debya Singh: 13 Ind. Cas. 84 : 16 C.L.J. 28. That proviso lays down thatwhen any suit under Section 83 is instituted for the cancellation or amendmentof an entry, the Government, if it so desires, and any person interested in theentry shall be made parties to the suit. The Legislature apparently has notprovided for any machinery by which intimation of the institution of each asuit may be given to the Collector so as to enable him to decide whether theSecretary of State should or should not intervene under this section. We arenot aware whether the Court of the Judicial Commissioner, Central Provinces,framed any rule in this behalf, at any rate, no such rule has been framed bythis Court. Apparently, therefore, a suit of this character may be institutedand the trial completed, without; any notice given by either party to theGovernment to enable it to intervene under Section 83. The case mentioned is ofno assistance in the determination of the question raised before us. There theSecretary of State made an application to this Court to be joined as a partydefendant. That application was granted. In the case before us, no such applicationhas been made by the Secretary of State for India in Council. This objectionwas not taken by the defendant in either of the Courts below. He has not alsoadopted what would have been obviously the proper course to take, if theobjection were substantial, namely, to apply to this Court, when the appeal wasfiled, for a rule upon the plaintiffs-respondents and upon the Secretary ofState to show cause why the Secretary of State should not be joined as a partyrespondent to the appeal. We are of opinion, therefore, that notwithstandingthe provisions of Section 83, the suit ought not to fail, especially, as thereis nothing to indicate that the Secretary of State is willing to be joined as aparty defendant to the suit under that section. It has been suggested on behalfof the appellant that the object of this provision is two-fold, first, tosecure that the Government revenue is not affected and secondly, to secure thatthe party against whom the declaration may be made, may not be prejudiced, whenhe applies to the Collector to have the assessment of revenue altered in hisfavour. But even if this be conceded, it does not affect the case. TheSecretary of State will obviously be not bound by any decision that may begiven in favour of the plaintiffs in this suit, and it is by no means clearthat the result of that declaration will be to prejudice the position of thedefendant in so far as the payment of Government revenue is concerned. It isconceivable that, notwithstanding the declaration made in this suit, he may beentitled to throw the burden of the Government demands upon the plaintiffs inrespect of the land to which they have successfully asserted their title askhoreposh has without the payment of any rent. That, however, is a questionwhich can be determined only in a suit property constituted for that purpose.There is, consequently, no bar to the suit as framed.

5. In so far as the second ground is concerned, whichrelates to the merits of the case, no doubt, the plaint makes reference to thegrant of 1861. But it is clear from the plaint as a whole and from theproceedings in the Court below that the case throughout has been that the grantof 1861 was a confirmatory grant and that the maintenance grant under which theplaintiffs claim title, has been really held by them and their ancestors forseveral generations. We are, therefore, not prepared to held that there is anysubstantial variance between pleading and proof, or that the Courts below havemade a decree in favour of the plaintiffs upon a case not set out in theplaint.

6. The result is that the decree of the Subordinate Judge isaffirmed and this appeal dismissed with costs. The decree will declare,however, that nothing in this decision will affect the question of the terms ofthe maintenance grant or the validity thereof, and any question which mayhereafter arise as to the right of the zamindar to resume the maintenancegrant, will be deemed unaffected by the result of this litigation. The decreewill further declare that the question of the liability of the plaintiffs, ifany, for payment of the Government demand will be open for consideration in afuture litigation.

7. This judgment will govern the other Appeals ( Nos. 1777to 1780 of 1908) which are also dismissed with costs, subject to similarreservations.

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Baktawar Singh vs.Bhubano Singh (24.05.1912 - CALHC)