SAYDANMIA RAHIMANMIYA Vs. HASANMIYA MANWARMIYA

JUDGEMENT

(1.) The plaintiff brought this suit praying that it might be declared that plaintiffs 1 and 2 had a one anna four pies share in the Jahagir vallage of Kanoshi, and that it might be declared that they were entitled to receive Rs. 65, or any greater or less amount which might be settled according to Tharavband, from the village officers by a separate receipt, and for an injunction and for other relief.

(2.) Before the Subordinate Judge a preliminary issue was framed: is a certificate under the Pensions Act necessary? The learned Judge held that it was necessary, and as the certificate was not produced the plaintiff s suit was dismissed on the 29th November 1913. In appeal the decree was set aside, and the suit was remanded to the trial Court for a framing and trial on evidence of the issue whether the grant to the parties ancestors was of the soil or of the land revenue. The finding on that issue was that the grant in suit was of the soil, and not of the land revenue only, and that a certificate under the Pensions Act was not necessary. A decree was passed on the 29th February 1916 in favour of the plaintiff awarding him the greater part of his claim. In first appeal the learned District Judge held that a certificate was necessary. He said that the plaintiffs claim in this case was limited to a share in the nett land revenue of an Inam village as ascertained from the Tharavband and to a corresponding claim for arrears. The learned Judge seems to have overlooked the fact that the plaintiffs claimed a declaration that they were Rharers to the extent of one anna four pies in the Jahagir village, and that the plaint was not confined to a mere request for a declaration that they were entitled to receive a share of the revenue from the village officers and nothing more. The learned . Judge has not dealt with the question whether there was originally a grant of the soil of the village, and not merely a grant of the royal share of the revenue. The trial Judge has found that this question must be decided wholly on the decision of the Inam Commissioner, copy of which has been filed, and was finally marked Exhibit 82. That was a decision by the Inam Commissioner under Rule 1 of Schedule B of Act XI of 1852. The finding was that the village of Mouje Kanoshi, Taluka Shevgaon, District Nagar, excluding the ancient Hakdars and" Inamdars, should be continued as Inam to Pir Darga Shaha Sharifa so long as the male descendants of any one of the three persons, namely, Babamiya valad. Mahomed Burhan, Matumiya valad Babasaheb and Mahomedmiya valad Darvesh were alive. We have been referred to the decision in Vasudev Pandit v. The Collector of Puna (1873) 10 B.H.C.R. (A.C.J.) 471 and that case is almost exactly on all fours with this case. The learned Judges said : If we felt ourselves flee to dispose of the case on a construction of these documents (that is to say, the grants made to Bhau Maharaj by Sir T. Munro in 1818, confirmed by the Honourable Mountstuart Elphinstone), we should have considerable difficulty in saying that they were meant to convey more than the revenue arising from the village...But the disposal of the present case is to be governed by wholly different considerations- considerations which we cannot but think would have had a decisive effect in the District Court, had they been duly pressed upon the attention of the Judge presiding there. The rights of the Inamdar have been weighed and adjudicated on by the Inam Commissioner under Act XI of 1852. The duty of that officer, as laid down in Rule 1 of Schedule A to the Act, is to investigate...the titles of persons holding or claiming against Government the possession or enjoyment of Inams or Juhgeers, or, any interest therein, or claiming exemption from the payment of land revenue. According to Section 7 of the Act no decision or order of the Inam Commissioner...shall be questioned or avoided in any Court of law .

(3.) The judgment of the Inam Commissioner in that case was in exactly similar terms as the decision in this case, except that additional words baki darobast gav chalvava were used in that case which are translated by the learned Judge "let the whole remainder of the village continue" ,(in the enjoyment or possession of the Inamdar s family). But otherwise the decision of the Inam Commissioner was that the village, excluding the ancient Hakdars and Inamdars, should be continued as Inam in the grantees family so long as their male descendants were alive, and the learned Judges came to the conclusion that that was more than a grant of the revenue. When, therefore, with express reference to a rule applicable only to lands, he says that, saving particular charges, the whole village is to go on, or for the future to be in the possession or enjoyment of the Inamdar s family, we must necessarily construe this order as adjudging the lands and not merely the revenues of the village to the claimant. I think this case must be decided according to the decision in Vasudev Pandit v. The Collector of Puna (1873) 10 B.H.C.R. (A.C.J.) 471 and that, therefore., no certificate was necessary under Section 4 of the Pensions Act. The result must be that the decision of the learned District Judge must be set aside, and the case must be remanded to him for trial on the merits. The appellant will have the costs of the appeal and the costs in the lower appellate Court. Heaton, J.