RAJAH NILMONY SINGH Vs. KALLY CHURN BATTACHARJEE

JUDGEMENT

(1.) THIS was a suit instituted by the Rajah of Pachete against a great number of his ryots, about fifty, "to," in his own language, "obtain possession of ten rekhs, or a ten annas share of mouzah Raotara, pergunnah Para, under a mal title, by setting aside the false mogolee bromuttur title stated by the Defendants." The Defendants set up different defences; some of them alleged the mogolee bromuttur tenure, which the Rajah complained of their having set up; others repudiated any such tenure, and declared that they had never set it up, and therefore that the suit was brought unjustly against them; others did not appear. The case came in the first instance before the Assistant Commissioner, who in their Lordships' opinion did not sufficiently distinguish between the different classes of Defendants. He treated them substantially as all setting up this mogolee bromuttur tenure, and framed his issue with that view. He found in the result in favour of the Rajah, that the Rajah was entitled to possession of the lands in suit, and that the Defendants' allegation of mogolee bromuttur holding be set aside.

(2.) AN appeal was then presented to the High Court, and in their Lordships' judgment the High Court scarcely sufficiently adverted to the distinct defences on the part of the various Defendants; the case of some being that they had a bromuttur tenure, that of others being that they had not and never had set it up; as against those last it was necessary for the Rajah to prove that they had set up a bromuttur tenure. The High Court reversed the decision of the Lower Court, and the ground of their decision is expressed in the last paragraph of their judgment : "On the whole case we think that the onus being shifted on the Plaintiff to prove that those Defendants had, since the year 1197, paid at a variable rate, and that they had not paid at the rate of Rs. 121. 9a., as per settlement of 1197, he has altogether failed to do so. We therefore dismiss the Plaintiff's case, and decree the appeal with costs." In other words, the High Court appears to have found that the Defendants had proved a, prima facie case of a mogolee bromuttur tenure, throwing upon the Plaintiff the onus of rebutting that case, and that he had failed to sustain the onus thrown upon him. The decree of the High Court is in these terms: "It is ordered and decreed by the said Court that this appeal be decreed, and the decree of the Lower Court be reversed, and that the suit of the Plaintiff Respondent as against all the Defendants be and the same is hereby dismissed." Their Lordships do not think it necessary to determine whether or not the High Court were right in the conclusion they came to, as to the proof or the rebuttal of proof of the bromuttur tenure, because in their Lordships' opinion the judgment dismissing the suit is maintainable on totally different grounds. This is in substance a suit for a declaration of title, and it is a suit to set aside, not any deed nor any act, but a mere allegation of the Defendants that they had a certain tenure. In their Lordships' view such a suit is not maintainable. Section 15 of Act VIII. of 1859 is in these words: "No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the Civil Court to make binding declarations of right without granting consequential relief." A similar clause in this country has been held to give a right of obtaining a declaration of title only in those cases where the Court could have granted relief if relief had been prayed for and that doctrine has been applied to this clause in the Indian Act.

(3.) UNDER these circumstances their Lordships, for the reasons given, are of opinion that the decree of the High Court was right, and they will humbly advise Her Majesty that that decree should be affirmed. It is scarcely necessary for their Lordships to add that, the decree being affirmed on these grounds, no adjudication has been given in favour of either party upon the question of mogolee bromuttur tenure.