BENI RAM SARUGS Vs. MAHOMED ABDULLAH

JUDGEMENT

(1.) This is an appeal on behalf of the defendant in an action commenced by the plaintiff for cancellation of an order made by the Assistant Settlement Officer of Sambalpore, on the 7th June 1906, under the Central Provinces Land Revenue Act (XVIII of 1881) and also for amendment of the Record of Rights based thereupon. The entry in question is to the effect that the plaintiff is liable to pay the defendant an assessed annual rent of Rs. 3-2 in respect of the disputed land. The case for the plaintiff is that one Kirtibas, who was Gaontia of village Mahomed Larpank within which the disputed land is situated, sold the village to the father of the defendant on the 18 February 1867. Under the conveyance a right was reserved to Kirtibas to hold the disputed parcel in perpetuity without payment of rent, and the transferee was to payout of the profits of the Village the rent that might be assessed in future. On the 24 April 1898, the plaintiff purchased the right, title and interest of Kirtibas. Before this Kirtibas had been recorded as Bhogra Bhogi or plot proprietor in the Settlements made by Russel and Nethersole under which he was made liable only for payment of cesses, In the last Settlement made by Mr. Dewan the plaintiff was made liable as before for cesses; but on the 2 June, 1906, the defendant applied to the Settlement Officer to have it recorded that the plaintiff was also liable to pay Rs. 3-2 as rent. Tin's application was allowed on the 7 June and a note to this effect was made in the Record of Rights. The plaintiff then commenced this action on the 5 July 1906 ostensibly under Section 83 of the Land Revenue Act for cancellation of the order of the 7 June and for amendment of the record. The defendant resisted the claim substantially on the ground that the suit was not maintainable in the Civil Court, that Section 83 of the Land Revenue Act had no application to the case which is governed by Section 152, Sub-section (b), Clause (9), and that on the merits the plaintiff had no ground for complaint inasmuch as the rent was assessed because the plaintiff sought to have the right to use, for irrigation purposes, water from a reservoir constructed by the defendant. The Court of first instance found upon these points in favour of the defendant and dismissed the suit. Upon appeal the Subordinate Judge has held that the suit is maintainable in the Civil Court and that under Section 92 of the Indian Evidence Act oral evidence is not admissible to vary the terms of the conveyance of the 18 February 1867. In this view of the matter, the Subordinate Judge has decreed the suit. The defendant has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first, that the suit is not maintainable in the Civil Court, and secondly, that the decision of the Settlement Officer was right on the merits and that in fact no question of admissibility of oral evidence to vary the terms of the original contract really arises.

(2.) In support of the first of these contention; reliance has been placed by the learned vakil for the appellant upon Section 152 (b), Clause (9), of the Central Provinces Land Revenue Act, which provides that except as other- wise provided no Civil Court shall exerciser jurisdiction over any matter provided for or referred to in Section 74 as to lands; held or claimed to be held free from revenue except rights arising under any contract between the Government of India and grantees of land. It has further been contended that the enquiry by the Settlement Officer was under Section 74. On the other hand it has been argued by the learned vakil for the respondent that the enquiry by the Settlement Officer was under Section 68 and that the suit is maintainable under Section 83. Before I decide which of these contentions ought to prevail, it is necessary to observe that the Subordinate Judge obviously misread Section 83 when he held that under that section person is entitled to bring a suit in the Civil Court to have any entry cancelled or amended when he feels himself aggrieved by such entry. Section 83 manifestly shows that the right of suit is restricted to decisions under Section 78 and to entries made in the Record of Rights as to matters mentioned in that section. The question to be really decided, therefore, is whether the investigation by the Settlement Officer was under Section 68 as the respondent contends or under Section 74 as the appellant contends. In my opinion, there can be no reasonable doubt that the contention of the appellant must prevail. ? There was no dispute that the respondent was in possession as plot proprietor. The sole question was whether he was entitled to hold wholly or partially free from revenue as against the other mloguzars of the melted. This was obviously a case under Section 74 and not under Section 68. An examination of Section 78 shows that an investigation tinder Section 74 is not included within its scope and consequently in such a case Section 83 is of no avail. On the other hand Section 152 shows that the Civil Court cannot exercise jurisdiction in a matter of this description. The suit, therefore, is, in my opinion, not maintainable in the Civil Court. This view is supported by the decision of the Judicial Commissioner of the Central Provinces in Ram Lal V/s. Sett Fateh Chand (1897) 11 C.P.L.R. 45.

(3.) I do not desire, however, to rest my decision solely on the ground of jurisdiction because I feel convinced that the claim of the plaintiff has no merits whatsoever. The plaintiff challenges the decision of the Settlement Officer. The defendant supports that order on the ground that the Settlement Officer, assessed rent because the plaintiff sought to have the benefit of a reservoir constructed by the defendant and if he wished to have - the advantage of the costs incurred by the defendant he must pay for it. The Settlement Officer found that the plaintiff wanted to have the benefit of the reservoir and that he could do so only upon payment of fair rent. The Court of first instance found that the version of the defendant was true and that the Settlement Officer assessed rent because the plaintiff had accepted the water rate valuation made by the defendant. The Subordinate Judge does not reverse this finding, but proceeds on the ground that oral evidence is not admissible to vary the terms of the conveyance of 186V. Obviously no question of the admissibility of oral evidence arises. The conveyance of 1867 does not entitle the plaintiff to use the water of the reservoir of the defendant. It merely entitles him to occupy the disputed land free of rent. If subsequently the plaintiff seeks to have some benefit out of the property of the defendant, if the defendant consents to allow him to have the benefit upon payment of adequate consideration, and if the plaintiff accepts the terms of the defendant it is obviously perfectly justifiable for the Settlement Officer to give effect to this agreement and to end the dispute. There is nothing in Section 92 of the Evidence Act which prevents the defendant from showing that the order of the Settlement Officer was right on the merits and cannot be impeached on any valid ground.