Charles Dickson Field, J.

1. who after setting out the facts continued.--The firstpoint pressed upon us in appeal is that no notice was necessary, because thedefendant being entitled merely to kursa-jama had set up a larger interest inhimself, viz., a permanent malguzari jama, had repudiated the true position ofhis landlord, and might therefore be ejected at once without notice. In supportof this contention the case of Vivian v. Moat L.R. 16 Ch. D. 730 was reliedupon. In that case the tenant defendant had disputed his landlords right toraise the rent. FRY, J., said: "Every landlord, in the ordinary sense ofthe word, has in popular Janguage a right to raise the rent," and heconsidered that the denial of the landlords right to raise the rent being asuggestion that the landlord was not an ordinary landlord of the estate, buteither a lord of the manor or an owner of some other right which gave him atitle to a customary rent merely, was in fact a renunciation or disclaimer ofthe landlords title. We think that the ground of this decision rests mainlyupon the relation of landlord and tenant, as it exists in England, where suchrelation depends upon contract, and that the principle of this case is notapplicable to this country, where a different state of things prevails. In thiscountry there are numerous tenures the rent of which cannot be raised, and thedenial of the landlords right to raise the rent is not necessarily arenunciation or disclaimer of his title as landlord.

2. The next question argued before us is concerned with thereasonableness of the notice. Whether a notice is or is not reasonable is aquestion of fact, and therefore ordinarily the decision of this question is notopen to second appeal. But if the finding of the Court below is based upon noevidence, or upon reasons, all of which are untenable, no doubt the proprietyof such finding might be questioned upon second appeal. The Judge in the Courtof First Instance thought the notice unreasonable, because it did not expire atthe end of the year, and further, because it was not a six months notice whichhe thought would under the circumstances be a reasonable notice. The first groundis absolutely untenable. There is no law in this country which requires anotice to quit in a case of this kind to expire at the end of the year. Thesecond ground is also bad, because there is no law which requires a six monthsnotice to be given. What the Judge ought to have found was, not what noticewould have been reasonable, but whether the notice actually given in this casewas or was not reasonable. If the Judge in the lower Appellate Court had merelyadopted the reasons given by the Subordinate Judge, it might fairly becontended that his finding was open to question in second appeal. We think,however, that although he has adopted the Subordinate Judges finding, he hasnot adopted his reasons, but has exercised his own judgment upon the evidencein the case. He says at page 31: "The defendant urges that this notice isunreasonable, and the Subordinate Judge holds that it is so. So far I quiteagree with the Subordinate Judge." Here he agrees in what the SubordinateJudge holds, but he does not express his concurrence in the reasons given bythe Subordinate Judge for his finding; and from his observations at page 33 itappears that he did not concur in the view taken by the Subordinate Judge thatthere should be a six months notice. At page 32 the District Judge says:"Under any circumstances it was utterly unreasonable to ask defendant togive up in a month and twenty-four days land which he had held for so long, andwhich with the permission of plaintiffs agents he had covered with buildings."We think that this is a finding of fact that the notice of one month andtwenty-four days given to the defendant was not a reasonable notice. TheDistrict Judge then proceeds to give his reasons, and it has been pressed uponus that in giving these reasons he has omitted to consider-many facts andcircumstances in the case which should have weighed with him in forming hisopinion upon the question which he had to decide. It may be quite possible thatthe Judge has not dealt with this question as fully and satisfactorily as couldbe wished; but nevertheless we are of opinion that we cannot enter upon anexamination of the evidence upon second appeal, and that we are precluded frominterfering with the finding of fact arrived at by the Judge.

3. The next question with which we have to deal resolvesitself into two present, was the District Judge right in thinking that nodeclaratory decree could according to law be made in this case; and, secondly,was he justified in interfering with the exercise of discretion by the Court ofFirst Instance in making such a decree.

4. As to the first point we think that the Judge was inerror in holding that a declaratory decree could not, according to law, be madein the present case. In the two cases in Nilmony Singh v. Rally ChurnBhattacharjee L.R. 2 IndAp 83 : 14 B.L.R. 382 [LQ/PC/1874/22] and Kathama Natchiar v. DoraSinga Tevar L.E. 2 I.A. 169 : 15 B.L.R. 83 [LQ/PC/1875/4] their Lordships of the Privy Councildeal with the provisions of Section 15 of Act VIII of 1859. This section hasbeen repealed, and the provisions of the present law, Section 42 of theSpecific Relief Act, are materially different, The provisions of Section 42 areas follows: "Any person entitled to any legal character, or to any rightas to any property, may institute a suit against any person denying, orinterested to deny, his title to such character or right, and the Court may inits discretion make therein a declaration that he is so entitled, and theplaintiff need not in such suit ask for any further relief." Now, what theplaintiff asks in this case is that the defendants declaration as to having apermanent malguzari jama be set aside. We must not in this country tie upparties too strictly to the language of their pleadings, and we must look, notat the language merely, but at the substance of the thing. The plaintiff admitsthat the defendant has a kursajama but he denies that the defendant has themuch larger interest asserted by him, viz., a permanent malguzari jama. Inother words, he alleges that the interest which is vested in himself is thewhole proprietary right less a kursajama belonging to the defendant, and thatit is not a much smaller interest, viz., the proprietary right less a permanentprotected tenure, that is, a permanent malguzari jama. Let us now see what thepleadings were. In the sixth paragraph of his written statement the defendantalleged that for more than twelve years before the service of the notice, heand his predecessor had been possessing and enjoying the disputed lands inright of a permanent fixed malguzari jama, and exercising the aforesaidpermanent mylgurzan right over the same; and in the nineteenth paragraph healleged as follows: "From before the Decennial Settlement, from the timeof the plaintiffs predecessors, I have been from the time of my forefathersenjoying and possessing the disputed lands together with some other lands ofmouzah Ghatakhal and Turbhunaia at a rent formerly of Sicca Rs. 7-124-1-2 kag,and then of Companys Rs. 8-4-6 pie as permanent mokurrari transferable malguzarijama held and possessed from generation to generation, first by clearing thejungles and preparing gardens on the same, and then by settling tenants hereand there from time to time, and preparing gardens and excavating tanks,&c, on the same. My right of occupancy is of course involved in thatsuperior right of mine." The Subordinate Judge fixed among other issuesthe following, namely, the tenth, "whether or not the disputed land is thepermanent right alleged by the defendant in the nineteenth paragraph of hiswritten statement," and the fifteenth," whether or not the defendanthas a right of occupancy in the land. "Finding these two issues againstthe defendant, he made a declaration that the defendant has no permanent orprotected holding in the land, not even aright of occupancy; that he is atenant from year to year, and is liable under the circumstances to be ejectedon a six months notice to quit expiring at the end of the year. Now, there canbe no doubt that this declaration is too wide, and that so far as regards thestatement that the defendant is a tenant from year to year, and is liable underthe circumstances to be ejected on a six months notice to quit, expiring atthe end of the year, it should not have been made. But it is contended that theplaintiff is entitled to a declaration upon the finding upon the tenth andfifteenth issues, that the defendant is not entitled to such a permanent rightas that alleged in the nineteenth paragraph of his written statement, and thathe has not a right of occupancy in the land. It appears to us that as a matterof law such a declaration can be made under the provisions of Section 42 of theSpecific Belief Act. This view is in conformity with the case of RajundwKishwar Sing v. Sheopursun Misser 10 Moor I.A. 438 see the remarks of theirLordships of the Privy Council at pages 449 and 450. This case, it is to beobserved, was decided before Section 15 of Act VIII of 1859 was enacted. Thenthe case of Bissesuri Dabeea v. Baroda Kant Roy Chowdry I.L.R. Cal. 1076decided after the passing of the Specific Relief Act, though not exactly inpoint, lends a certain support to the view which we take. It has been contendedthat, inasmuch as the plaintiff sued for ejectment, and the declaration whichhe asks for is merely ancillary to this ejectment, the declaration should notbe made. This is no doubt a good argument, as regards that portion of thedeclaration made by the Court of Kist Instance, which we have above intimated,cannot be sustained. It has also some force as regards the portion of thedeclaration, based on the finding upon the fifteenth issue; and as regards thisissue we may further observe that the plaintiff has not asked that it bedeclared that the defendant has not a right of occupancy. It appears to us thatthe whole of the pleadings fairly construed show that the plaintiff sought twothings: first, to have it declared that the defendant had not a permanentmalguzari tenure, or, in other words, that the interest in him, the plaintiff,was the whole zamindari interest less a kursajama; and secondly, to have thedefendant evicted from this kursajama upon service of notice to quit. We thinkthat these two things are separate, and that the plaintiff may well have thedeclaration which he asks for, even though in consequence of his failure toprove a reasonable notice he is unable to proceed to the ejectment of thedefendant. Having regard to the proviso of Section 42, it may be observed thatin respect of the interest as to which the plaintiff seeks a declaratory decreeno further relief is possible, and that the further relief which would havebeen possible, if a proper notice had been served, is sought no in respect ofthe interest which the plaintiff claims to have and which in substance he asksto have declared, but in respect of the interest -which he admits the defendantto have, viz., a kursajama. We think, therefore, that under the present law,Section 42 of the Specific Relief Act, (and see the illustrations to thissection), such a decree as that which is now asked can be made. Then it is saidthat the plaintiff seeks merely to set aside an allegation. There can be nodoubt that a declaratory decree ought not to be made to set aside a mereallegation; but in the present case the defendants conduct amounts tosomething more. In the previous case, No. 23 of 1878, he set up this permanentmalguzari jama and he produced documentary evidence to prove it. He is found tohave since been exercising rights in the land inconsistent with a kursajama interest,though consistent with the permanent malguzari jama which he alleges, and inthe present case he has repeated this allegation of a permanent malguzari jama,and has again brought forward documentary evidence to prove it (a large portionof which evidence has been found to be forged).

5. The next question with which we are concerned is that ofdiscretion. The Judge in the court of First Instance in the exercise of hisdiscretion made a declaratory decree. The District Judge set aside the decree,because in his view it cannot be made under the present law, and then at theend of his judgment he says: "Finally I must remark with specialadvertence to Nilmony Singh v. Rally Churn Bhattacharjee L.R. 2 IndAp 83 : 14B.L.R. 382 that the granting of a declaratory decree is discretionary with theCourt, and that even if there was no rule of law against making the declarationasked for by the plaintiff, this is not a case in which such relief should begranted." Now if the second portion of this sentence be construed asreferring to the case of Nilmony Singh v. Kally Churn Bhattacharjee L.R. 2IndAp 83 : 14 B.L.R. 382 [LQ/PC/1874/22] the reasons which may be assumed to have influencedthe Judge have no existence, because that case was governed by Section 15 ofAct VIII of 1859, which has no application in the present case, and the Lordsof the Privy Council, after expressing their opinion at the bottom of page 85that that was not a case in which, in the proper exercise of discretion, adeclaration of title should be made, proceeded to state what the facts were;that the real object of the suit was to obtain a general declaration against anumber of persons holding different rights. The facts of the present case arenot analogous, and, therefore, the same reasons do not apply. If, on the otherhand, the second part of the sentence above quoted is to be construed as havingno reference to the case of Nilmony Singh v. Kally Churn Bhattacharjee L.R. 2IndAp 83 : 14 B.L.R. 382 [LQ/PC/1874/22] then the Judge reverses the exercise of discretion bythe Court of First Instance without assigning any reason for so doing, and sucha judgment cannot stand. In the case of Sreenarain Mitter v. Kishen SoonderyDassee 11 B.L.R. 171 at p. 190, their Lordships of the Privy Council said:"It is not a matter of absolute right to obtain a declaratory decree. Itis discretionary to the Court to grant it or not, and in every case the Courtmust exercise a sound judgment as to whether it is reasonable or not under allthe circumstances of the case to grant the relief prayed for." The Lordsof the Privy Council heard that case as a second appeal, and putting themselvesin the position of the High Court hearing a second appeal they made it a groundof their decision, that it would not be exercising a sound discretion, even ifit could be done, to make the declaratory decree asked. In the case now beforeus the Judge has exercised no judgment, he has given no reasons for interferingwith the exercise of discretion by the Court of First Instance.

6. We must, therefore, set aside his reversal of theSubordinate Judges exercise of discretion as to the granting of a declaratorydecree and the case must go back in order that the Judge, in the Court below,may determine the question of fact raised by the tenth issue. If this issue isfound against the defendants and in favour of the plaintiff, the plaintiff willbe entitled to a decree declaring that the defendant has not the rights put inissue thereby. T. A, P. Case remanded.

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Kali Kishen Tagorevs. Golam Ali (19.03.1886 -CALHC)