http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

PETITIONER: SHRIMANT SARDAR BHUJANGARAODAULATRAO GHORPADE

       Vs.

RESPONDENT: SHRIMANT MALOJIRAO DAULATRAOGHORPADE AND OTHERS.

DATE OF JUDGMENT: 30/01/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN SASTRI, M. PATANJALI (CJ) DAS, SUDHI RANJAN

CITATION:  1952 AIR  138            1952 SCR  402  CITATOR INFO :  E&D        1964 SC 436  (13)

ACT:    Bombay  Revenue  Jurisdiction  Act (X  of  1876),  s.  4 (a)--Saranjam--Dispute   between   branches   of   grantee’s family--Government Resolution regulating succession--Suit to declare  Resolution  ultra vires, for  declaration  of  sole right  as  saranjamdar,  and for  injunction  against  other branches--Government impleaded as party--Maintainability  of suit.

HEADNOTE:    The  position of the Gajendragad estate which  had  been recognised by the British Government as a saranjam and which had  been  declared by the Bombay High Court in 1868  to  be partible,  was re-examined in 1891 and Government  passed  a Resolution in 1891 that "the whole of the Gajendragad estate was  a  saranjam continuable as hereditary  in  the  fullest sense of the word.  It is continuable to all male legitimate descendants  of the holder at the time of the  British  con- quest."  In 1932 by another Resolution  Government  formally resumed  the  grant and re-granted it to the  plaintiff  who belonged  to the first branch of the family of the  original grantee  with a direction that it should be entered  in  his sole  name in the accounts of the Collector. The  other  two branches felt aggrieved and in 1936 Government passed anoth- er  Resolution  which confirmed the Resolution of  1891  and modified  the  Resolution  of 1932, by  declaring  that  the portions of the 403 estate  held  by the branches shall be entered as  de  facto shares and that each share shall be continuable hereditarily as  if  it were a separate saranjam estate.   The  plaintiff instituted  a  suit impleading the  representatives  of  the other  two branches as defendants 1 and 2, and the  Province of Bombay as the 3rd defendant, alleging that the Resolution of  1936 was ultra vires and praying (A) for  a  declaration (i)  that the defendants 1 and 2 had no right to  go  behind the Resolution of 1932 under which the plaintiff was  recog- nised as the sole saranjamdar and that the assignments  held by defendants were held by them as mere potgi holders,  (ii)

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

that  the  plaintiff had the sole right  to  all  privileges appertaining to the post of saranjamdar, and (iii) that  the Government  had no right to change the Resolution  of  1932, and  (B) for restraining the defendants 1 and 2  from  doing any  acts  in contravention of the aforesaid  right  of  the plaintiff.      Held, (i) that the suit was a suit "against the  Crown" and also a suit "relating to lands held as saranjam"  within the  meaning  of sec. 4 of the Bombay  Revenue  Jurisdiction Act,  1876,  and  the Civil Courts had  no  jurisdiction  to entertain the suit;     (ii)  that  the plaintiff could not be  given  even  the reliefs  claimed  against defendants 1 and 2 alone,  as  the rights  claimed  against these defendants could not  be  di- vorced from the claim against the Government and  considered separately;      (iii) in any event if the claim against the  Government was  to  be  ignored it can only be on the  basis  that  its orders could not be challenged and if the orders stood,  the plaintiff  could not succeed because both sides  held  their respective properties on the basis of those orders. Basalingappagowda  v. Secretary    of State (28  Born.  L.R. 651)  and Basangauda v. Secretary of    State (32 Bom.  L.R. 1370)  approved.  Province of Bombay v.   Hormusji  Maneklal (74 I.A. 03) distinguished.     Held also, that see. 4 of the said Act would apply  even if  the only relief claimed in the suit against the  Govern- ment was a declaration.      Dattatreya  Viswanath v. Secretary of State  for  India (I.L.R. 1948 Bom. 809) disapproved. Daulatrao v.  Government of Bombay (47 Bom. L.R. 214) approved.

JUDGMENT: CIVIL  APPPELLATE   JURISDICTION:  Civil  Appeal No.  11  of 1950.       Appeal from the judgment and decree of the High  Court of  Bombay  (Bhagwati and Dixit JJ.)  dated  16th  December, 1948,  in Second Appeal No. 1226 of 1945 confirming a  judg- ment  and decree of the District Judge of Dharwar in  Appeal No. 123 of 1943.  The facts of 404 the  case  and the arguments of the counsel  appear  in  the judgment.     B. Somayya and Sanjiva Rao Naidu (N. C. Shaw, with them) for the appellant.       M.C.  Setalvad,  Attorney-General for  India,  (V.  N. Lokur, with him) for the respondents Nos. 1 and 2.    M.C. Setalvad, Attorney-General for India, (G. N.  Joshi, with him) for respondent No. 3 (the State of Bombay.)     1952.  January  30.  Judgment was delivered by  BOSE  J. PATANJALI SASTRI C.J. and DAS J. agreed with Bose J.    Bose J.--The plaintiff appeals.      The  suit relates to a Saranjam estate in the State  of Bombay.  The plaintiff claims to be the sole Saranjamdar and seeks certain declarations and other reliefs appropriate  to such a claim.      The  first  and second defendants are  members  of  the plaintiff’s family while the third defendant is the State of Bombay (Province of Bombay at the date of the suit).     The  only  question  is whether the suit  is  barred  by section 4 (a) of Bombay Act X of 1876 (Bombay Revenue Juris- diction Act).     The following genealogical tree will show the  relation-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

ship between the parties: Bhujangrao Appasaheb              (British grantee)                  Daulatrao I              (died 24--7--1864) Bhujangrao I          Malojirao       Yeshwantrao alias (died 1881 )              :           Annasaheb      :                    :               : (widow) Krishnabai    Daulatrao III   Bhujangrao II Daulatrao II          (Del. 1)        (Def. 2) (died 8--5--1931)      : Bhujangrao III (Plaintiff) 405     The  facts  are  as follows. A common  ancestor  of  the present parties was given the Gajendragad estate as a Saran- jam  some time before the advent of the British.  When  they arrived  on the scene they decided, as far  as possible,  to continue such Saranjams, jagirs and inams as had been grant- ed by the earlier rulers, and accordingly they framed  rules under  Schedule  B, Rule 10 of Bombay Act XI  of  1852  (The Bombay  Rent Free Estates Act of 1852) to regulate the  mode of  recognition and the succession and conditions of  tenure to Saranjams, which are analogous to jagirs.  In  compliance with  this,  the common ancestor shown at the  head  of  the genealogical tree set out above was recognised by the  Brit- ish Government as the Saranjamdar of the Gajendragad estate. He  may for convenience be termed the British Grantee.   The Register  Ex.  P-53 shows that the estate  consisted  of  26 villages. We do not know the date of the British recognition but the nature of the tenure is described as follows :--     "Continuable  to all male legitimate descendants of  the holder  at the time of British  conquest,  viz.,  Bhujangrao Appasaheb,   the first British Grantee, son  of  Bahirojirao Ghorpade."       On the death of the British Grantee (Bhujangrao  Appa- saheb)  he was succeeded by his son Daulatrao I who died  on the  24th of July, 1864. This Daulatrao I left  three  sons, Bhujangrao I,  Yeshwantrao  and Malojirao.        In  the year 1866 Bhujangrao I and his brother  Yesh- wantrao  alias  Annasaheb sued Malojirao for  possession  of this  Saranjam.  A question of impartibility was raised  but the Bombay High Court declared that the property in  British India was partible.  They further declared that Bhujangrao I was  the  head of the family and as such was entitled  to  a special assignment which was not to exceed a quarter  share, for  the expenses and duties which might devolve on  him  by virtue  of  his position, and that after this had  been  set aside  each of the three brothers was entitled to  an  equal one-third  Share  in  the landed property  in  India.   This judgment 406 is  reported in 5 Bom. H.C.R. 161. The duties enumerated  at page 170 included the "keeping up of armed retainers for the fort  of Gajendragad, and for the improvement of  that  vil- lage,  which was the chief seat of this branch of the  Ghor- pade family, and also to enable him to distribute on ceremo- nial occasions the customary presents to the junior  members of  the family." The judgment is dated the 12th of  October, 1868.       As  a consequence a division of the property  was  ef- fected.  Malojirao separated himself from his  brothers  and was   allotted   seven  villages.  The  other  two  brothers continued  joint  and took the remainder. But this was  only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

with  respect  to property situate in  British  India.   The parties  also had property in the State of  Kolhapur.   That was left undivided.     Bhujangrao I died in 1881 and his younger brother  Yesh- wantrao  (alias  Annasaheb) claimed to succeed as  the  sole heir.  The Political Department of the Government  of  India refused to recognise this claim and permitted Bhujangrao I’s widow Krishnabai to adopt a a boy from the family and recog- nised  him  as the heir in respect of that  portion  of  the estate which lay within the Principality of Kolhapur.   This was on the 3rd of February, 1882.        The  Bombay  Government  followed  a  similar  course regarding  the  property in British India.  On the  26th  of April, 1882, they passed a Resolution embodying the  follow- ing decision:     (1)   The adoption was to be recognised and the  adopted son was to occupy the same position as his adoptive  father, that is to say, he was to get one-third of the property plus the assignment given to him as head of the family.    (2)   Malojirao  who had already taken his share  of  the estate was to continue in possession.   (3)  Yeshwantrao (alias Annasaheb) was given the option of remaining joint with the adopted boy or separating.  Finally, the Resolution Concluded-- 407     ‘‘The two brothers will hold their respective shares  as their  private property in virtue of the decree of the  High Court  and the Jahagir will henceforth be restricted to  the portion  awarded by the High Court to Bhujangrao  which  the adopted  son will now inherit. It should however be  clearly understood that the decision of the High Court is not to  be held  as  a precedent and that no partition of  the  Jahagir Estate  to  be  continued to the adopted son  will  ever  be allowed."    This  position was emphasised by Government in  the  same year  on  the 22nd August, 1882. Krishnabai,  who  had  been allowed by Government to adopt Daulatrao II, asked that  her husband’s  one-third share in the estate be also treated  as private property in the same way as the shares of the  other two brothers.  This prayer was refused and Government  stat- ed:     "It  should be plainly understood that Government  allow the  adoption  to be made by her only  in  consideration  of Bhujangrao’s one-third share as well as the portion assigned to him as head of the family being continued to the  adopted son as indivisible Jahagir Estate descending in the line  of male  heirs in the order of primogeniture and subject to  no terms whatsoever as to the enjoyment of the same by Krishna- bai during her lifetime."     The  position was re-examined by Government in 1891  and its decision was embodied in the following resolution  dated the 17th of March, 1891:     "It appears to Government  that  the  whole  Gajendragad Estate is a Saranjam continuable as hereditary in the  full- est sense of the word as interpreted by the Court of  Direc- tors  in  paragraph 9 of their Despatch No.  27  dated  12th December,  1855.  It is continuable to all  male  legitimate descendants  of the holder at the time of the  British  con- quest;  and should Government ever sanction an adoption  the terms of sanction would be those applicable to Saranjamdars. The  property should be dealt with like Other  Saranjams  in the Political Department." 53 408     In  the  year  1901 the adopted son  Daulatrao  II  sued

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

Yeshwantrao’s  son Bhujangrao II for partition.  It will  be remembered  that in the litigation of 1866, which  ended  in the  Bombay High Court’s judgment reported in 5 Bom.  H.C.R. 161,  Malojirao  alone separated and the other two  brothers continued joint.  The litigation of 1901 put an end to  that position.  High  Court’s judgment dated the 12th  of  March, 1908,  makes it clear that as Government was not a party  to that  litigation  its rights against either or both  of  the parties were not affected.  But as between the parties inter se  they  were  bound by the previous decision  and  so  the adopted  son was entitled to partition and separate  posses- sion  of such properties as might fall to his  share.  After this  decision  was given the two partitioned  the  property between themselves amicably.    In  or about the year 1930 a Record of Rights was  intro- duced in fourteen of the villages  in the Gajendragad  Jaha- gir and a dispute arose again between the three branches  of the family. The District Deputy Collector, after  inspecting the  records, found that "the  name of the  Khatedar  Saran- jamdar  alone has found place in the village Inam  register, in  the  Saranjam list and the  land  alienation  register," while  in the other village records the various  members  of the family were entered according to the "actual wahivat  or enjoyment."     After due consideration he thought that the interest  of Government   and   the  Saranjamdar would   be  sufficiently safeguarded  by allowing the same position to continue.   He ordered the entries  to be made accordingly.  The order also discloses  that  the matter had been referred to  the  Legal Remembrancer to the Bombay Government.     In  the  meanwhile, on the 5th of May, 1898,  a  set  of Rules  framed under Schedule B, Rule 10, of the Bombay  Rent Free Estates Act of 1852 were drawn up and published in  the Bombay Gazette.  These Rules were republished, probably with some  modification, in the Gazette of 8th July,  1901.   The portions applicable here were as follows:- 409   "I.  Saranjams shall ordinarily be continued in accordance with   the   decision already passed by Government  in  each case.    II.  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  Gran- tee  or any of his brothers who were undivided in  interest. But Government reserve to themselves their rights for suffi- cient  reason 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 Government.     V.  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  Gov- ernment, unencumbered by any debts, or charges, save such as may be specially imposed by  Government itself. VI. No Saranjam shall be capable of sub-division. VII.  Every  Saranjamdar shall be responsible for  making  a suitable  provision for the maintenance of......   "(certain members of the family enumerated in the Rule).  IX. If an order passed by Government under Rule VII is  not carried  out,  Government may, whatever the reason  may  be, direct   the   Saranjam,  or  a  portion  of   it,   to   be resumed.......   Provision for the members of the  Saranjam- dar’s  family entitled to maintenance shall then be made  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

Government out of the revenues of the Saranjam so resumed."      After  the  District  Deputy  Collector’s  orders  were passed  on the 20th of May, 1930, Daulatrao II died  on  the 8th  of  May,  1931, and the matter was again  taken  up  by Government.  This time it passed the following 410 Resolution  on  the 7th of June, 1932.  The  Resolution  was headed, "Resumption and regrant of the Gajendragad  Saranjam standing at No. 91 of the Saranjam List."  It reads--      "Resolution  :--The Governor-in-Council is  pleased  to direct  that  the Gajendragad Saranjam  should  be  formally resumed   and  regranted  to  Bhujangrao Daulatrao  Ghorpade eldest  son  of the deceased  Saranjamdar  Sardar  Daulatrao Bhujangrao  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.     2.   The  Governor-in-Council  agrees  with the  Commis- sioner, Southern Division, that the assignments held by  the Bhaubands as potgi holders should be continued to them as at present."     The Bhujangrao mentioned in the Resolution is the plain- tiff  who  is shown as Bhujangrao III  in  the  genealogical tree.     The  defendants  were evidently aggrieved by  this,  for they filed Suit No. 23 of 1934 against the present plaintiff and the Secretary of State/or India in Council praying inter alia  "that the properties in that suit, viz., the  villages allotted to their shares, were their independent and private properties and in case they were held to be Saranjam proper- ties,  they be declared as independent  Saranjams,  separate and distinct from the one held by the present plaintiff."      This  suit was withdrawn with liberty to bring a  fresh suit on the same cause of action against the present  plain- tiff  but  not against the Secretary of State for  India  in Council.  According to defendants 1 and 2, this was pursuant to an arrangement between the Government and themselves that Government  would issue a fresh Resolution in terms  of  the earlier Resolution dated the 17th of March, 1891. 411 This  was done.  On the 25th of February,  1936,  Government passed the following Resolution :--       "Resolution  :--After   careful   consideration    the Governor-in-Council  is pleased to confirm the  decision  in Government   Resolution   (Political  Department)  No.  1769 dated the 17th of March, 1891,and to declare that the  whole of  the  Gajendragad  Estate shall be  continuable   as   an inalienable   and  impartible Saranjam  on  the   conditions stated in  the said Resolution.  Having regard, however,  to the  manner in which different portions of the  estate  have been   held  by  different  branches  of  the  family,   the Governor-in-Council, in modification of the orders contained in Government Resolution No. 8969 dated the 7th June,  1932, is  pleased to direct that the portions of the  said  estate held  by  Sardar Bhujangrao  Daulatrao  Ghorpade,  Daulatrao Malojirao   Ghorpade  and  Bhujangrao Yeshwantrao  Ghorpade, respectively,  shall  henceforth be entered in  the  Revenue Records  as de facto shares in the said estate held  by  the said  persons  as representatives,  respectively,  of  three branches of the Ghorpade family.  Each of the said de  facto shares  shall be continuable hereditarily as such as  ii  it were a separate Saranjam estate in accordance with the rules made  for the continuance of Saranjams by  the  Governor-in-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

Council  in exercise of the powers referred to in the  rules framed  under  the Bombay Rent Free Estates Act,  1852,  and section  2 (3) of the Bombay Summary Settlement Act (VII  of 1863) and such special orders as the Governor-in-Council may make  in regard to the Gajendragad Estate as a whole  or  in regard to the said share.  The recognition of the  aforesaid shares  and their entry in the Revenue Records  as  separate shares shall not be deemed to amount to a recognition of the estate of Gajendragad as in any manner partible or alienable and  shall not in any way affect the right of Government  to treat  the said estate as an entire impartible and  inalien- able Saranjam estate.      2.   The Governor-in-Council further directs  that  the aforesaid shares shall in no case be capable of 412 sub-division and shall not in any way be alienated or encum- bered  except  in accordance with the rules and  orders  re- ferred to above..."      The present suit is an attack on the action of  Govern- ment  in  passing  this Resolution.  The  first  and  second defendants  are  the present representatives  of  the  other branches of the family and the third defendant is the  Prov- ince  of  Bombay  (now the State  of  Bombay).   The  plaint states-     "9.  Government  can have no jurisdiction to deprive the plaintiff at any rate during his lifetime of the full  bene- fit  of  all the rights and privileges appertaining  to  the holder  of a Saranjam.  The Order of Government of  the  8th February,  1936  is, therefore, ultra vires and  in  no  way binding on the present plaintiff......     10.  Defendants 1 and 2, therefore, are not entitled  to any rights or privileges claimable by the holder of a Saran- jam which according to the G.R. is continuable ’as an inali- enable and impartible Saranjam’, such as for example in  the matter of appointment of the village officers in any of  the 27 villages appertaining to the Gajendragad Saranjam.      11.  The  cause of action arose in April 1938  and  the resolution and the entry being ultra vires is not binding...     12.  As  this is a suit claiming  for  relief  primarily against  defendants 1 and 2, defendant 3 is made a party  to the suit in order to enable Government (defendant 3) to give proper  effect  to the decision of Government  of  the  17th March, 1891, and of 7th June, 1932, as against defendants  1 and 2 who have no right to the position which they claim..." The reliefs prayed for are--    "(a) That it be declared that defendants 1 and 2 have  no right to go behind the order of the Government as per  Reso- lution No. 8969 of 7th June, 1932, under which plaintiff  is entitled  to  be recognised as the sole Saranjamdar  in  the Revenue Records, and that the assignments held by defendants 1 and 2 are held by them as mere potgi holders. 413     (b) That in consequence of his position of a sole Saran- jamdar  the plaintiff alone at any rate during his  lifetime has the sole right to the rights and privileges appertaining to  the post of a sole Saranjamdar, to wit, to be  consulted in  the  appointment  of the  village officers  in  all  the villages  appertaining to the Saranjam estate, but  assigned to defendants 1 and 2 for potgi...       (c)  Defendants 1 and 2 be restrained from  doing  any acts  or taking any steps in contravention of the  aforesaid right of the plaintiff.    (d)  That  it be declared that defendant  3  (Government) have no right to change the Resolution No. 8969 of 7th June, 1932, and at any rate during the lifetime of the plaintiff."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

    The first Court dismissed the plaintiff’s claim on  the merits  holding that Government had the right to  amend  its Resolution in the way it did.    The  lower  appellate Court also dismissed  the  suit  on three  grounds: (1) that the two previous decisions of  1868 and  1908  operate as res judicata, (2)  that  the  impugned Resolution is intra vires and (3) that section 4 (a) and (d) of the Revenue Jurisdiction Act bars the jurisdiction of the Court.     In  second  appeal the High Court  only  considered  the question of jurisdiction and, agreeing with the lower appel- late Court on the point, dismissed the appeal but it granted the plaintiff leave to appeal to this Court.      The  only  question we have to consider is the  one  of jurisdiction.  Section 4 of the Bombay Revenue  Jurisdiction Act, 1876 (Bombay Act X of 1876), runs-    Subject to the exceptions hereinafter appearing, no Civil Court shall exercise jurisdiction as to-     (a)...claims against the Crown relating to lands... held as Saranjam....  "      It  was strenuously contended that this is not a  claim against  the  Crown  but one against the  first  and  second defendants.   That, in my opinion, is an idle contention  in view of paragraphs 9 and 12 of the plaint and reliefs (a)and (d).   In any event, Mr. Somayya was asked whether he  would strike out the third defendant 414 and those portions of the plaint which sought relief against it.  He said he was not prepared to do so.  I cannot see how a plaintiff can insist on retaining a person against whom he claims no relief as a party.  I am clear that this is a suit against the "Crown" within the meaning of section 4(a).       The next question is whether, assuming that to be  the case,  it is also one "relating to lands held as  Saranjam." So  far  as  the  reliefs  sought   against  Government  are concerned,  that  is clearly the case. Paragraph  9  of  the plaint  challenges Government’s jurisdiction to deprive  the plaintiff  of the full benefit of all rights and  privileges appertaining   to   the holder of a Saranjam.  These  rights cannot   exist apart  from  the  lands  which  form part  of the  Saranjam  estate and the implication of the  prayer  is that  Government  has, for example, no right to  resume  the Saranjam either under Rule V on the death of the last Saran- jamdar  or under Rule IX during his lifetime.  It is  to  be observed that a resumption under Rule IX can only be of  the land  because  the rule directs that when  the  Saranjam  is resumed  Government  itself shall make  provisions  for  the maintenance of those entitled to it "out of the revenues  of the Saranjam so resumed."   These revenues can only come out of the land.     Relief (d) in the prayer clause seeks a declaration that Government has no right to change Resolution   No. 8969 dated the  7th of June, 1932. That Resolution directly relates  to the land because it directs that the Gajendragad Saranjam be resumed and the Collector is directed to take steps to place the Saranjamdar in possession of the villages of the  Saran- jam estate etc.    It  is  impossible to contend that this is  not  a  claim relating to lands held as Saranjam.    It  was  next argued that if that be the case  the  claim against Government can be dismissed and the plaintiff can at least  be  given the reliefs claimed against the  other  two defendants.  These, it was contended, do not relate to  land and in any event are not claims against the "Crown". 415

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

   In  my opinion, this is not a suit in which  the  rights claimed  against the other defendants can be  divorced  from the claim against Government and considered separately. That is evident enough from paragraph 10 of the plaint. In  para- graph 9 the power of Government to deprive the plaintiff  of the  rights he claims is challenged and in paragraph 10  the plaintiff  explains  that "therefore" the first  and  second defendants  are  not  entitled  to any  of  the  rights  and privileges  of the Saranjamdar.  One of those rights, as  we have seen from Rules VII and IX, is to take the revenues  of the  entire  estate  in  order  that  he  might  fulfil  his obligation  regarding the payment of maintenance to  certain members  of the family; and if the defendants claim to  hold their lands under the orders of Government and the plaintiff insists on retaining Government as a party in order that  it may  be  bound  by the decree he  wants  against  the  other defendants  it  is  obvious that  his  claim  against  these defendants  cannot be separated from his claim  against  the Government.      In any event, if the claim against Government is to  be ignored  it can only be on the basis that its orders  cannot be challenged and if the orders stand it is evident that the plaintiff  can  have no hope of success because  both  sides hold  their  respective  properties on the  basis  of  those orders.      There are two decisions of the Bombay High Court  which have taken this view.  Basalingappagouda v. The Secretary of State  for India(1) was a Watan case. Government had  recog- nised the second defendant as the Watandar.  Plaintiff  sued Government and the second defendant and sought a declaration and  injunction.  On being faced with the dilemma  that  the suit against Government did not lie because of section 4 (a) (3) of the Bombay Revenue Jurisdiction Act of 1876, he asked the Court, as here, to leave the Government out of consider- ation  and  decree his claim against  the  second  defendant alone.   The learned Judges held that that would  amount  to striking out the main relief sought against both the defend- ants and would entirely  (1) 28 Born. L.R. 651. 54 416 change the character of the suit and added that "as long  as the Secretary of State is a party to the suit, such a decla- ration could not be granted."       In  the  other  case,  Basangauda  v.  The   Secretary State(1),  Beaumont  C.J. and Baker J. took the  same  view. They said--      "Mr. Gumaste, who appears for the appellant, says  that his claim is not a claim against the Government but in  that case  he ought to strike out the Government. He is not  pre- pared to strike out the Government, because if he does  they will  not be bound by these proceedings and will follow  the decision of their revenue tribunals.  Therefore, he wants to make the Government a party in order that they may be bound. But, if they remain a party, it seems to me that there is  a claim against them relating to property appertaining to  the office  of  an hereditary officer, although no doubt  it  is quite  true  that the appellant does not desire to  get  any order  against  the Government as to the way  in  which  the property should be dealt’ with or anything of the sort,  and he only wants a declaration as to his title which will  bind Government."     They held that the jurisdiction of the courts was  oust- ed.     It was next contended, on the strength of a decision  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

the  Judicial  Committee of the Privy  Council  reported  in Province of Bombay v. Horrnusji Manekji(2). that the  courts have  jurisdiction  to decide whether  Government  acted  in excess of its powers and that that question must be  decided first.  In my opinion, this decision does not apply here.       Their Lordships were dealing with a case falling under section  4  (b) of the Bombay Revenue  Jurisdiction  Act  of 1876. That provides that--  "...no Civil Court shall exercise jurisdiction as to.....    (b) objections to the amount or incidence of any  assess- ment  of land revenue authorised by the  Provincial  Govern- ment." (1) 32 Bom. L.R. 1370.                    (2) 74 I A. 103 417     As  pointed  out  by Strangman K.C., on  behalf  of  the plaintiff-respondent,  "authorised" must mean  "duly  autho- rised," and in that particular case the impugned  assessment would not be duly authorised if the Government Resolution of 11-4-1990 purporting to treat the agreement relied on by the respondent as cancelled and authorising the levy of the full assessment  was  ultra vires under section 211 of  the  Land Revenue  Code.  Thus,  before the  exclusion  of  the  Civil Court’s  jurisdiction  under section 4 (b) could  come  into play,  the Court had to determine the issue of ultra  vires. Consequently,  their Lordships held that that  question  was outside  the  scope  of the bar. But the  position  here  is different.  We  are concerned here with section  4  (a)  and under that no question about an authorised act of Government arises. The section is general and bars all "claims  against the   Crown  relating to  lands......  held   as  Saranjam." That is to say, even if the Government’s act in relation  to such  lands was ultra vires, a claim impugning the  validity of such an act would fall within the scope of the  exclusion in clause (a) provided it relates to such land.       There  is a difference of opinion in the  Bombay  High Court  as  to  whether section 4 is attracted  if  the  only relief  sought against Government is a declaration. One  set of  decisions  holds that that does not amount to  a  "claim against Government."  Dattatraya Vishwanath v. The Secretary of State for India(1) is typical of that view. On the  other hand, Daulatrao v. Government of bombay(2), a case  relating to the Gajendragad estate, took the other view. In my  opin- ion, the latter view is correct.      In my opinion, the decision of the High Court was right  and I would dismiss the appeal with costs. PATANJALI SASTRI C.J.--I agree. S.R. DAS J.-- I agree.                                     Appeal dismissed. Agent for the appellant: Ganpat Rai. Agent  for respondents Nos. 1 & 2: M.S.K. Sastri. Agent  for respondent No. 3; P.A. Mehta. (1)I.L.R. 1948 Born. 809 at 820.       2) 47 Bom. L.R. 214. 418