Shrimant Dattaji Raobahirojirao
Ghorpade Vs. Shrimant Vijayasinhrao & ANR [1960] INSC 96 (29 April 1960)
DAS, S.K.
SARKAR, A.K.
HIDAYATULLAH, M.
CITATION: 1960 AIR 1272
ACT:
Saranjam Estate-Maintenance grant to junior
member-Power of Government to resume and re-grant-Custom of lineal
primogeniture, extent and effect of-Suit challenging Government order of
resumption and re-grant-If barredSaranjam Rules-Bombay Revenue jurisdiction
Act, 1876 (Bom.
X of 1876), s. 4.
HEADNOTE:
Upon the death of the holder in 1932, the
Government of Bombay by order dated June 7, 1932, resumed the Saranjam estate
of Gajendragad and re-granted the same to his eldest son. By the same order the
assignment of some lands out of the estate in favour of B, a younger member of
the family, by way of maintenance was also continued. On May 14, 1940, B died
leaving his widow, A, and his undivided brother, D. A asked the Government for
permission to adopt a son but without the permission being granted adopted V on
July 10, 1941. By an order dated December 17, 1941, the Government continued
the maintenance grant (Saranjam potgi) to D.
Thereupon V filed a suit against the
Government and D for recovery of the lands on the grounds (i) that the order of
the Government dated December 17, 1941, was ultra vires, null and void, and
(ii) that by the custom of lineal primogeniture which prevailed in the family
the lands, upon the death of B and upon the adoption of V by A, devolved upon V
in preference to D. The suit was contested, inter alia, on the grounds: (i)
that under the relevant Saranjam Rules the interest of B came to an end on his
death and was not such as could devolve upon V despite the order dated December
17, 1941, (ii) that the alleged family custom did not apply to maintenance
grants and (iii) that the suit was barred under s. 4 Of the Bombay Revenue
jurisdiction Act, 1876:
Held, that the plaintiff was not entitled to
the lands either under the Saranjam Rules or under the custom; further that the
suit was barred by $4 of the Bombay Revenue jurisdiction Act, 1876.
103 790 The maintenance grant (potgi holding)
was part of the Saranjam and was governed by the incidents of Saranjam tenure
and by the relevant Saranjam Rules. Saranjam grants were granted or withheld at
the will and pleasure of the sovereign power and the grant was always subject
to interruption and revocation by resumption, temporary or absolute. On the
death of B it was open to the Government to resume the grant and to grant it to
D and this is what it did by the order dated December 17, 1941. The taking in
adoption of the plaintiff by the widow of the deceased could not affect the
operation of the order passed by the Government.
Daulatrao Malojiyao v. Province of Bombay
(1946) 49 Bom.
L.R. 270, referred to.
Even under the custom of lineal primogeniture
pleaded by the plaintiff, D was entitled to get the properties after the death
of B. It was not pleaded that the properties once so vested were divested by
subsequent adoption by the widow.
Further it was neither pleaded nor proved
that the custom took away the right of the Government to resume the maintenance
grant and to make a fresh grant thereof.
Sub-clause 4 of the Bombay Revenue
jurisdiction Act, 1876, barred the jurisdiction of civil courts in respect of
" claims against the Government relating to lands granted or held as
Saranjam". The plaintiff asked for a finding that the order of December
17, 1941, was null and void and did not affect the properties in suit. Unless
the order was out of his way, the plaintiff was not entitled to claim recovery
of possession. The claim was one which fell within the mischief of s. 4 and the
suit was barred.
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 37 of 1960.
Appeal from the judgment and decree dated
November 12, 1952, of the Bombay High Court in First Appeal No. 492 of 1949,
arising out of the judgment and decree dated the 20th April, 1949, of the First
Class Sub-Judge, Dharwar, in Special Civil Suit No. 16 of 1943.
S. N. Andley, J. B. Dadachanji, Rameshwar
Nath and P. L. Vohra, for the appellant.
Naunit Lal, for respondent No. 1.
B. R. L. Iyengar and T. M. Sen, for
respondent No. 2.
1960. April 29. The Judgment of the Court was
delivered by S. K. DAS, J.-This is an appeal on a certificate given by the High
Court of Bombay, from the judgment and decree of the said High Court dated 791
November 12, 1952, by which it reversed the decision of the Civil Judge, First
Class, at Dharwar dated-,, April 20, 1949, in Special Civil Suit No. 16 of
1943.
The material facts are these. Gajendragad in
Taluk Ron in the district of Dharwar is a Saranjam estate known as the
Gajendragad Saranjam bearing number 91 in the Saranjam list maintained by
Government. Within that estate lay village Dindur and survey field No. 302 of
Unachgeri, which are the properties in suit. One Bhujangarao Daulatrao Ghorpade
was the holder of the Saranjam estate at the relevant time. In 1932 the
Saranjam was resumed and re-granted to the said Bhunjangarao by Resolution No.
8969 dated June 7, 1932, of the Government of Bombay in the Political
Department. This Resolution said:
" The Governor in Council is pleased to
direct that the Gajendragad Saranjam should be formally resumed and regranted
to Bhujangarao Daulatrao Ghorpade, the eldest son of the deceased Saranjamdar
Daulatrao Bhujangarao Ghorpade, and that it should be entered in his sole name
in the accounts of the Collector of Dharwar with effect from the date of the
death of the last holder. The Collector should take steps to place the
Saranjamdar in possession of the villages of the Saranjam estate which were in
possession of the deceased Saranjamdar.
The Governor in Council agrees with the
Commissioner, Southern Division, that the assignments held by the Bhaubands as
potgi holders should be continued to them as at present." One of the
younger branches of the Ghorpade family was Babasaheb Bahirojirao Ghorpade, to
be referred to hereinafter as Babasaheb. He held by way of maintenance (as
potgi holder) the aforesaid village of Dindur and survey field No. 302 of
Unachgeri. He had an undivided brother called Dattojirao, who was defendant No.
2 in the suit and is appellant before us. In this judgment we shall call him
the appellant. Babasaheb died on May 14, 1940. On his death he left a widow
named Abayabai and the appellant, his undivided brother. On July 10, 1941,
Abayabai adopted Vijayasinhrao as a, son to her deceased husband.
Vijayasinha was the plaintiff who brought the
suit' 792 and is now the principal respondent before us. It will be convenient
if we call him the plaintiff-respondent, and state here that he was the natural
son of Bhujaugarao's younger brother, another Dattajirao to be distinguished
from the appellant who also bears the same name. On Babasaheb's death Abayabai
asked for sanction of Government to her taking a boy in adoption; this
application was opposed by the appellant. On December 17, 1941, the Government
of Bombay passed a Resolution in the following terms:
" 1. Government is pleased to direct
that the Saranjam potgi holding of village Dindur and Survey No. 302 of
Unacbgeri, which were assigned for maintenance to the deceased potgidar, Mr.
Babasaheb Bahirajirao Ghorpade, at the time of the re-grant of the Gajendragad
Saranjam, should be continued to his undivided brother, Mr. Dattajirao
Babirojirao Ghorpade.
2.Government is also pleased to direct, under
Rule 7 of the Saranjam Rules, that the new potgidar, Mr. Dattajirao Bahirojirao
Gborpade, should give to Bai Abaibai, widow of the deceased Potgidar, Mr.
Babasaheb Bahirojirao Ghorpade, an annual maintenance allowance of Rs. 300 for
her life.
3.These orders should take effect from the
14th May, 1940, i.e., the date on which the deceased potgidar, Babasaheb
Bahirojirao Ghorpade, died.
4.The Commissioner S. D. should be requested
to communicate these orders to Bai Abaibai, widow of the late potgidar, with
reference to her petitions addressed to him and also to the Rayats of Dindur,
with reference to their petition, dated the 12th May, 1941. The orders should
also be communicated to the present Saranjamdar of Gajendragad." On
February 8, 1943, the plaintiff-respondent brought the suit against the
Province of Bombay as defendant No. 1, the appellant as defendant No. 2 and
Abayabai as defendant No.
3. The suit was contested by the Province of
Bombay (now substituted by the State of Bombay) and the appellant.
Abayabai supported the case of the
plaintiff-respondent, but she died during. the Pendency of the suit.
793 The claim of the plaintiff-respondent was
that on his adoption the estate of his deceased adoptive father devolved on him
by the, rule of lineal primogeniture in preference to the appellant. The main
plea of the plaintiff-respondent was stated in paragraph 6 of the plaint, which
read as follows:
" 6. The Government Resolution passed by
defendant No. 1 in 1941 is ultra vires and null and void for the following
reasons:
(a)Defendant No. 1 made a re-grant of the
Saranjam estate to Shrimant Sardar Bhujaragarao Ghorpade in 1932 and therein
the suit properties were, according to defendant No. 1, continued to the
adoptive father of plaintiff Under the Saranjam rules no occasion has arisen
for interference by Government at this stage. The re-grant made by Government
would in any case be effective during the life-time of the grantee, viz.,
Shrimant Sardar Bhujangarao Ghorpade.
Further the said Shrimant Sardar Bhujangarao
Ghorpade was not consulted by defendant No. 1 before the said Government
Resolution.
(b)By the custom of the family to which the
family belongs, the estate of a deceased person devolves by the rule of lineal
primogeniture. Hence after the death of plaintiff's adoptive father and the
adoption of plaintiff himself, all the estate vested in plaintiff's adoptive
father has devolved on the plaintiff in preference to defendant No. 2.
The action of defendant No. 1 in ignoring
this rule of succession prevalent in the family is ultra vires and null and
void." On the aforesaid pleas, the plaintiff-respondent prayed for (a)
recovery of possession of properties in suit from the appellant, (b) mesne
profits, and (c) costs.
On behalf of the Province of Bombay several
pleas by way of defence were taken. The main pleas were (1) assuming that the
plaintiff-respondent was validly adopted, he had nevertheless no legal claim to
the properties in suit because under the relevant Saranjam Rules the interest
of Babasabeb came to an end on his death and was not of such a nature as would
794 devolve on the plaintiff-respondent despite the Government Resolution dated
December 17, 1941, (2) that the alleged family custom did not apply to
maintenance grants, and (3) that, in any event, the suit was barred under s. 4
of the Bombay Revenue Jurisdiction Act, 1876. The appellant besides supporting
the aforesaid pleas raised the additional pleas that there was no valid
adoption of the plaintiffrespondent and Abayabai was expressly prohibited by
her husband from adopting a son.
On these pleadings several issues were
framed. The suit was originally dismissed on a preliminary ground, namely, that
the plaint did not disclose any cause of action. The learned Civil Judge
apparently took the view that the properties in suit were subject to the
Saranjam Rules and on examining those rules, he came to the conclusion that as
the plaintiff-respondent on his adoption became a nephew of the appellant and
in that sense was claiming maintenance from the latter, it was necessary for
him to have alleged the necessary circumstances under which certain members of
a Saranjam Family are entitled to claim maintenance under Rule 7 of the said
Rules and as those circumstances were not pleaded by the plaintiff-respondent,
the plaint disclosed no cause of action. The High Court rightly pointed out
that the plaintiff-respondent did not make a claim for maintenance under Rule 7
of the Saranjam Rules, but claimed that the properties in suit devolved on him
by reason of his adoption and the custom of lineal primogeniture. Therefore,
the High Court held that the claim of the plaintiffrespondent was much more
fundamental than a mere claim of maintenance, and the learned Civil Judge had
misdirected himself as to the true scope of the suit. Accordingly, the High
Court set aside the decree of dismissal and directed the suit to be tried on
all the issues.
After this direction the learned Civil Judge
tried all the issues. Issues 1 and 2 related to the question of adoption,
namely, (1) whether the ceremony of adoption was properly proved and (2)
whether Babasaheb during his life-time had prohibited his wife from making an
adoption. On the first issue the learned 795 Civil Judge found in favour of the
plaintiff-respondent and on the second against him. The High Court affirmed the
finding on the first issue, and on a careful and detailed examination of the
evidence held on the second issue that the learned Civil Judge was wrong in
holding that the adoption was invalid by reason of the alleged prohibition of
Babasaheb. The High Court held that there was no such prohibition, and the
adoption was valid. We do not think that this finding of the High Court has
been or can be successfully assailed before us. Therefore, we have proceeded in
this appeal on the basis that the plaintiff respondent was validly adopted by
Abayabai on July 10, 1941.
We go now to a consideration of those issues
which are material for a decision of this appeal. They are: Issue No. 3--Does
plaintiff prove his title to the suit property ? Issue No. 4--Is it proved that
the Government Resolution (D.
G.) No. 8969 of December 17, 1941, is ultra
vires and null and void as alleged in the plaint ? Issue No. 5-Is the suit
barred under section 4 of the Revenue Jurisdiction Act ? Issue No. 7-Is the
alleged custom set up in para. 6(b) of the plaint proved ? On all these issues
the learned Civil Judge found against the plaintiff-respondent, and held that
the latter was not entitled to recover possession Of the properties in suit,
that he had failed to prove the custom pleaded in paragraph 6(b) of the plaint,
that the Government Resolution of December 17,1941, was not ultra vires, and
that the suit itself was barred under s. 4 of the Bombay Revenue Jurisdiction
Act, 1876. The High Court reversed the decision of the learned Civil Judge on
all the aforesaid issues, and held that as the properties in suit were given to
the junior branch of Babasaheb for its maintenance and were impartible and
governed by the rule of lineal primogeniture, they devolved on the appellant
after Babasaheb's death ; but as soon as Babasaheb's widow 796 made a valid
adoption, the properties were divested and inasmuch as the plaintiff-respondent
became the eldest member of the senior branch of Babasaheb's family, he became
entitled thereto as a result of the combined effect of the family custom and
ordinary Hindu law. The High Court said that looked at from this point of view,
no question arose of the validity of the Government Resolution dated December
17, 1941, and no relief for possession having been claimed against Government,
the suit was not barred under s. 4 of the Bombay Revenue Jurisdiction Act, 1876.
On behalf of the appellant, it has been very
strenuously argued that the High Court was in error in holding that the
properties in suit which are part of a Saranjam, vested in the appellant on
'the death of Babasaheb and were then divested on the adoption of the
plaintiff-respondent; it is contended that such a conclusion is inconsistent
with the nature of a Saranjam tenure and furthermore, the properties in suit
having vested in the appellant by reason of the regrant dated December 17,
1941, they could not be divested by the adoption made on July 10, 1941. Nor
does it follow, it is contended, from the custom pleaded in paragraph 6(b) of
the plaint, apart from the question whether even that custom has been proved or
not, that the properties in suit having once vested in the appellant will be
divested on a valid adoption. Secondly, it has been contended that the High
Court was also in error in holding that there was no claim against Government
within the meaning of the fourth sub-cl.
of s. 4(a) of the Bombay Revenue Jurisdiction
Act, 1876.
The argument before us has been that there
was such a claim, and no Civil Court had jurisdiction to determine it.
We are satisfied that these arguments are
correct and should be accepted. The claim of the plaintiff respondent that the
properties in suit devolved on him on his adoption may be examined either from
the point of view of the Saranjam Rules or the custom which he pleaded in
paragraph 6(b) of the plaint. Let us examine the claim first from the point of
view of the Saraniam Rules assuming here that they apply, 797 as far as
practicable, to maintenance grants (potgis) within the Saranjam. In the
Resolution of June 7, 1932, quoted earlier, the Government of Bombay treated
the potgi holders as being within the Saranjam and made provision for them.
The Resolution of December 17, 1941, also
proceeded on that footing. Two earlier Resolutions, one of 1891 (Ex. 100) and
the other of 1936 (Ex. 101), also treated the whole of Gajendragad and also
parts thereof as a Saranjam. Babasaheb in his lifetime wanted to surrender the
grant in his favour to the Saranjamdar, but Government refused to accept such
relinquishment. Even Abayabai asked for permission of Government to take a boy
in adoption, which permission she did not obtain. All this shows that the potgi
holding was part of the Saranjam and was treated as such by all the parties
concerned.
What is a Saranjam ? The word " Saranjam
literally means apparatus, provisions or materials. In his Glossary, Wilson
defines Saranjam as temporary assignments of revenue from villages or lands for
support of troops or for personal service usually for the lifetime of the
grantees. Dr. G. D.
Patel in his book on " The Indian Land
Problem and Legislation has said:
" According to the account given by Col.
Etheridge in his preface to the Saranjam List, it was the practice of the
former Governments, both the Muslims and the Marathas, to maintain a species of
feudal aristocracy for the State purposes by temporary assignments of revenue
either for the support of the troops or personal service, the maintenance of
official dignity or for other specific reasons. The holders of such lands were
entrusted at the time with the necessary powers for enabling them to collect
and appropriate the revenue and to administer the general management of the
lands. Under the Muslim rule, such holdings were called Jahagirs and under the
Maratha rule, they came to be called Saranjam. However, this distinction
between these tenures ceased to exist during the Maratha period. At the time of
the introduction of the British rule, 104 798 the difference between a Jahagir
and a Saranjam ceased to exist, to all intents and purposes. The two terms
became convertible and all such grants came to be known by the general term
"saranjam". Apart from the Saranjam grants, which were found only in
the Deccan, there were other grants of a political nature found scattered over
the whole State.
Their origins did not materially differ from
those of the Saranjam with the result that the British treated them under the
same rules called the Saranjam Rules ".
The Saranjam Rules were made in exercise of
the powers referred to in r. 10 of Schedule B of Act Xi of 1852 and of the
second sub-cl. to el. 3 of s. 2 of Bombay Act VII of 1863. We may here
reproduce some of these Rules:
" Rule I-Saranjams shall be ordinarily
continued in accordance with the decision already passed or which may hereafter
be passed by Provincial Government in each case.
Rule 2-A Saranjam which has been decided to
be hereditarily continuable shall ordinarily descend to the eldest male
representative in the order of primogeniture, of the senior branch of the
family descended from the First British grantee or any of his brothers who were
undivided in interest. But Provincial Government reserve to themselves the
rights for sufficient reasons to direct the continuance of the Saranjam to any
other member of the said family, or as an act of grace, to a person adopted
into the same family with the sanction of Provincial Government. When a
saranjam is thus continued to an adopted son, he shall be liable to pay to
Provincial Government a nazarana not exceeding one year's value of the
saranjam, and it shall be levied from him in such installments as Provincial
Government may in each case direct.
Rule 5-Every saranjam shall be held as a life
estate. It shall be formally resumed on the death of the holder, and in cases
in which it is capable of further continuance, it shall be made over to the
next holder as a, fresh grant from Provincial 799 Government, unencumbered by
any debts or charges save such as may be specially imposed by Provincial
Government itself Rule 7-Every saranjamdar shall be responsible for making a
suitable provision for the maintenance of the widow or widows of the preceding
saranjamdar, his own brothers, or any other member of his family who, having a
valid claim arising from infancy, mental or physical deformity rendering such
member incapable of earning a livelihood, may be deemed deserving of support at
his hands. When this obligation is not fulfilled by any saranjamdar, Provincial
Government may direct him to make suitable provision for such person and may
fix the amount, which he shall pay in each instance;
provided that no one who has independent
means of his own, or is, in the opinion of Provincial Government, otherwise
sufficiently provided for, shall be entitled to maintenance from the
Saranjamdar.
Rule 8-Every order passed by Provincial
Government under the above rule for the grant of maintenance by a Saranjamdar
shall hold good' during his life only The true nature of a Saranjam tenure was
considered by a Full Bench of the Bombay High Court in Daulatrao Malojirao v.
Province of Bombay(1) where their Lordships after referring to the earlier
decisions in Shekh Sultan Sani v. Shekh Ajmodin (2) and Raghojirao v.
Laxmanrao(3) observed:
" An examination of the authorities,
makes it clear that the whole structure of a Saranjam tenure is founded in the
sovereign right, which can only change by conquest or by treaty. So founded,
jagirs and Saranjams, with the feudal incidents connected with them, are
granted or withheld at the will and pleasure of the sovereign power, and, if
granted, the fixity of tenure is always subject to interruption and revocation
by resumption, be it temporary or absolute in character. No incident normally
applicable (1) (1946) 49 Bom. L.R. 270. (2) (1892) L.R. 20 I.A. 50.
(3) (1912) 14 Bom. L.R. 1226.
800 to private rights between subject and
subject can fetter or disturb the sovereign will ".
It seems to us manifestly clear that the
Saranjam Rules furnish no basis for the claim of the plaintiff respondent.
Abayabai asked for sanction to her taking a
boy in adoption.
No such sanction was given. On the death of
Babasaheb, it was open to Government to resume the grant, and by its Resolution
of December 17, 1941, Government directed that the Saranjam potgi holding of
village Dindur and Survey No. 302 of Unachgeri should be continued to the
appellant. This really amounted to a resumption and fresh grant and we do not
agree with the High Court that the order passed amounted to no more than
recognising the legal position according to the rule of succession and stood on
the same footing as any order of ordinary mutation. The High Court has emphasised
the use of the word " continued " in the Resolution dated December
17, 1941, and has contrasted that Resolution with the earlier Resolution dated
June 7, 1932, which was clearly a Resolution giving effect to a resumption and
regrant of the Gajendragad Saranjam. It may, however, be pointed out that in
paragraph 2 of the earlier Resolution, Government used the same word "
continued " in connection with the maintenance grants, namely, potgi
holdings within a Saranjam. Nothing, therefore, turns upon the use of the word
" continued " and if the ]Resolution dated December 17, 1941, is read
as a whole it is clear that the potgi of village Dindur and Survey field No.
302 of Unachgeri was granted to the present appellant. It was open to
Government to pass such an order, and we see no reasons to hold that it was
null and void. Indeed, the High Court did not say that it was an invalid order;
on the contrary, it said that it was a good order and operated with effect from
the death of Babasaheb. But it said erroneously in our opinion, that by reason
of the subsequent event of adoption, the order ceased, for all practical
purposes, to have any effect from that event. It is well to remember that the
adoption took place on July 10, 1941, and the Resolution was passed on December
17, 801 1941, though it took effect retrospectively from the date of death of
Babasaheb. We see no reasons why S, a valid order made by Government will cease
to have any effect because of an adoption made by Abayabai without sanction of
Government.
To hold that the Government Order ceased to
have any effect by reason of the act of a private party will be to go against
the very nature of a Saranjam tenure.
Let us now examine the claim of the plaintiff
respondent from the point of view of the custom pleaded in paragraph 6(b) of
the plaint. The custom pleaded was the rule of lineal primogeniture. In its
written statement Government said:
" The family custom alleged in clause
(b) is not admitted, and it is denied that such a custom can apply in respect
of maintenance grants. Under Rule 7 of the Saranjam Rules, which merely embody
the customary law relating to Saranjams, Government is given absolute
discretion to determine whether or not to make an order and what provision to
make and in whose favour The appellant said:
" The contents of para. 6(b) of the
plaint are not correct.
The custom of descent by the rule of
primogeniture is denied. This defendant has become the owner by survivorship,
after the death of Babasaheb ".
The learned Civil Judge found that the custom
pleaded in paragraph 6(b) of the plaint was not proved. The High Court has not
referred to any evidence on which the custom could be said to have been proved,
but observed that " it is common ground that the properties which had been
assigned to this branch for its maintenance is impartable and goes by
primogeniture". Even if we assume that the High Court is right in its
observation, though in face of the denial in the two written statements it is
difficult to see how this could be common ground between the parties, we fail
to appreciate how the assumption helps the plaintiffrespondent. On the
operation of the rule of lineal primogeniture after the death of Babasaheb, the
appellant became entitled to and got the 802 properties. It was not pleaded in
the plaint that the properties once vested by the customary rule of lineal
primogeniture were divested on subsequent adoption, by the widow. No such plea
was specifically taken, but the High Court relied on the concession made by
learned advocate for the appellant that under ordinary Hindu law the properties
which were vested in the appellant were divested on a subsequent valid adoption
by the widow. We consider it unnecessary to go into the vexed question of
divesting of an estate on a subsequent valid adoption by the widow. It is
enough to point out that the plaint disclosed no such case;
no such issue was raised and it was not open
to the plaintiff-respondent to make out a new case for the first time in
appeal. The plaintiff-respondent set up a family custom of lineal primogeniture
different from the ordinary law of inheritance; it was incumbent on him to
allege and prove the custom on which he relied and to show its precise extent
and how far it prevailed over ordinary Hindu law. In our opinion, he failed to
plead or prove any family custom by which the properties devolved on him.
Moreover, in order to succeed the plaintiff respondent must further establish
that the custom was such as would bind the Government. The appellant and the
Government never conceded that the custom of lineal primogeniture, if it
prevailed in the family, took away the right of Government to resume the
maintenance grant which was part of a Saranjam and make a fresh grant thereof
in accordance with the Saranjam Rules.
Now, as to s. 4 of the Bombay Revenue
Jurisdiction Act, 1876. The section, so far as it is relevant for our purpose,
says:" S. 4.-Subject to the exceptions hereinafter appearing, no Civil
Court shall exercise jurisdiction as to any of the following matters:
(a)claims against the Government relating to
any property appertaining to the office of any hereditary officer appointed or
recognised under Bombay Act no. III of 1874 or any other law for the time being
in force, or of any other village-officer or servant, or 803 claims to perform
the duties of any such officer or servant, or in respect of any injury caused
by,, exclusion from such office or service, or suits to set aside or avoid any
order under the same Act or any other law relating to the same subject for the
time being in force passed by the State Government or any officer duly
authorized in that behalf, or claims against the Government relating to lands
held under treaty, or to lands granted or held as Saranjam, or on other
political tenure, or to lands declared by the Provincial Government or any
officer duly authorized in that behalf to be held for service".
In Mallappa alias Annasaheb Basvantrao Desai
Nadgouda v. Tukko Narshimha Mutalik Desai and Others (1) it was pointed out
that in the section a distinction has been made between claims and suits. The
sub clause we are concerned with is the fourth sub-clause which relates inter
alia to " claims against the Government relating to lands granted or held
as Saranjam ". The High Court has taken the view that no claim was made
against Government in the present case. We are unable to agree. In express
terms, the plaintiff respondent asked for a finding that the Government
Resolution dated December 17, 1941, was null and void and did not affect the properties
in suit because the Government had either no authority to make such an order or
no occasion to do so. He asked for possession of those properties in spite of
the orders of Government. In these circumstances we must hold that Government
was more than a purely formal party, and a claim was made against it in respect
of the orders contained in its Resolution dated December 17, 1941. Unless the
Resolution is out of his way, the plaintiff-respondent is not entitled to claim
recovery of possession from the appellant with mesne profits, etc. The Civil
Court has no jurisdiction to determine any claim against the Government in the
matter of the Resolution of December 17, 1941, relating to Saranjam lands, and
the suit was barred under s. 4 of the Bombay Revenue Jurisdiction Act, 1876.
(1) I.L.R. [1937] Bom. 464.
804 We accordingly allow this appeal, set
aside the judgment and decree of the High Court dated November 12, 1952, and
restore that of the learned Civil Judge dated April 20, 1949. The appellant
will be entitled to his costs throughout from the plaintiff-respondent.
Appeal allowed.
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