(1.) This case has been the subject of a protracted litigation but the essential facts are few. In the year 1905 the District Magistrate being of opinion that the employment of two extra pagis in the village of Kamijla was necessary, required the Avalkarkun of Viramgam to take statements of the bhayats on the point. The Avalkarkun took down the statements of the bhayats (Exhibits 33 and 34), and they were not willing to employ two pagia. Thereafter the District Magistrate directed the plaintiff, who is the Chief of Patdi, to employ two pagis. This appears from the District Magistrate's order dated November 27, 1906, Exhibit 361 and the extract from the Barnishi of the Patdi Durbar which contains a summary of the correspondence on the subject between the Mamlatdar and the Durbar. The two pagis who were the nominees of the Patdi Durbar were appointed by the Collector. The plaintiff has been paying their wages, and seeks to recover a half share of the wages that he had paid for the defendant who is a jiwaidar entitled to a half share of the revenue of the village. He seeks not only to recover the amount that he has already paid, but also prays for a declaration of his right to reimburse himself from the defend-ant in respeet of the future payments.
(2.) The first point made by Mr. Thakor is that the District Magistrate had no jurisdiction to appoint the village pagis. This matter was concluded by the interlocutory judgment of this Court given on October 9, 1919. Mr. Thakor contends that that judgment has been misunderstood, and that all that the judgment decided was that the right of the District Magistrate to make the appointment of the village pagis was a question of evidence dependent upon whether the organization of the village did or did not include the appointment of the stipendiary village servants. He suggests that the re-trial should have included further evidence as to whether organization of the village was such as to make it competent to the District Magistrate to make such appointments. But if that had been the effect of that judgment, the High Court would surely have proceeded under Order XLI, Rule 25, and have either called for further evidence on the preliminary issue or framed an issue as to whether the organization of the village was such as to justify the appointments. As a matter of fact the High Court proceeded under Order XLI, Rule 23, reversed the decree of the lower Court and remanded the case for re-trial of the rest of the issues. No doubt there are observations in the judgment which lend colour to Mr. Thakor's construction of it inasmuch as the only evidence pointed to in the judgment in support of the conclusion that the organization of the village contemplated the appointment of the stipendiary village servants, was a Government Resolution of the year 1895. But we are not here to sit in review of that judgment and there is no doubt that the effect of the judgment was to hold that the District Magistrate had power under Section 3 of Bombay Act VIII of 1867 to make the appointments and that the judgment was so construed by the appellants own pleader in the District Court. We must, therefore, hold that Mr. Thakor's first point is concluded by the judgment of this Court dated October 9, 1919.
(3.) Mr. Thakor then contends that even if the District Magistrate had power under Section 3 of Bombay Act VIII of 1867 to make the appointments he had no power to delegate making of those appointments to the Chief of Patdi or to any other authority. This is a question of fact and is concluded by the judgment of the District Judge for he says: "There is no question of delegation at all. What plaintiff way called upon to do was to nominate two men for appointment as pagis." What happened was that the District Magistrate through his local officials asked the Patdi Durbar to name two individuals, and that he then sub-sequently appointed the two individuals whom the Patdi Durbar had nominated. This it was competent for the Magistrate to do.