FAKARUDINSAB AND TWO ORS SONS AND HEIRS OF THE DECEASED MAHOMEDARIFSAHEB WALAD PIRASAHEB, KHATIB AND MULLA Vs. SECRETARY OF STATE FOR INDIA IN COUNCIL

JUDGEMENT

(1.) The plaintiff sues for a declaration that he is the full owner of the lands in suit and of the khatib-giri right appertaining to them, for an injunction prohibiting the defendants from recovering Rs. 450 annually from him and for a refund of Rs. 750. recovered by the defendants.

(2.) It is alleged that Fakarudin walad Mahomed Kusim-saheb was originally the khatib in Bangui and that as such he held certain lands in Inam. These lands were allowed to remain with him in 1856 by the Inam Commissioner under Act. XI of 1852. Under circumstances detailed in the plaint the lands and the Khatib-gtri came to be alienated to the plaintiff s father in 1864 by Fakarudin s widow Pachhabi. Thereafter the plaintiff claims to have enjoyed the lands free from assessment and performed the services as khatib until the Commissioner (Southern Division) made an order on the 23rd September 1911 directing that the full economic rent be recovered from the present plaintiff and be paid to Mahomed Hanif (defendant No. 3) as long as he officiated as khatib on behalf of the Inamdar. The Commissioner made this order under the rules framed by the Government in 1908 under Act XI of 1852 and Bombay Act VII of 1863, Section 2, Clause (3) and their general powers. The plaintiff now claims reliefs in this suit on the footing that the said order of the Commissioner is invalid, and not binding upon him and that the alienation in favour of his rather is good. The plaintiff also claims as an heir to Pachhabi.

(3.) It is not necessary to note all the defences, which may be gathered from the several issues framed by the lower Court. Three issues out of them were taken up as preliminary issues. Two out of these three issues were dropped as having been unnecessarily framed. The only preliminary issue considered and decided by the lower Court relates to the jurisdiction of the Court to entertain the suit. The lower Court held that the suit was barred by Section 4 (a) of the Bombay Revenue Jurisdiction Act and accordingly dismissed the suit. The plaintiff has appealed to this Court and has urged in support of the appeal that the jurisdiction of the Civil, Courts is not ousted by Section 4 (a) and that the suit is covered by the exception indicated in the proviso Clause (k) of Section 4 and is also saved by Section 5 (a) and (b). On behalf of the defendants it has been contended that the jurisdiction of the Courts is ousted under the first, second and fourth paragraphs of Section 4 (a) and that Clause (k) docs not apply as the plaintiff is only an alienee and further that the claim relating to the khatibgiri service is not covered by the proviso. Further it is contended that Section 5 (a) does not apply as the amount ordered by the Commissioner to be recovered as the economic rent is really the amount authorized by the Government, and that, there-fore there is no excess such as is contemplated in the first part of Section 5 (a). Section 5 (b) it is urged, can-not apply to the present suit as it relates not merely to a claim between private parties but to a claim against Government.