JUDGMENT Sinha, J.
1. This is an application under Section 205, Government of India Act, inviting us to certify that this is a fit case for being taken to the Federal Court in that it "involves a substantial question of law as to the interpretation of the Government of India Act, 1935." The facts briefly are these:
The village in dispute is Chhatari in the District of Bulandshahr. It has extensive abadi which is divided into houses and shops. They are occupied by ryots who pay rent only for the shops and not for residential houses, The plaintiff is admittedly its sole zamindar. Shiam Lal is defendant 1, and Shiva Shankar alias Sallo and Baldeo Shankar alias Ballo, defendants 2 and 3, are his sons. Defendant 4 is the son of the brother of Shiam Lal. The first three defendants occupy a house in the abadi of mauza Chhatari. They do not, however, pay any rent or other dues to the plaintiff. The plaintiff came to Court with the following allegations:
The defendants lived in the abadi of mauza Chhatari as ryots and were entitled to use and occupy the said house for residential purposes only, he being the owner of the site of the house. The plaintiff went on to say that the defendants, who were members of a joint Hindu family, were occupying the house, the materials of which were supplied by the plaintiff's ancestors to the ancestors of the defendants and so he was also the owner of those materials. He further went on to say that under the terms of the wajib-ul-arz ryots paid no rent for the occupation of residential houses but did pay rent for the use and occupation of shops and that in the month of January 1939 the defendants, wrongly and without his permission, converted their residential house into a shop. The relief claimed, stripped of unnecessary details, was the ejectment of the defendants or for an injunction directing restoration of the house to its original condition and recovery of damages or for an order fixing the defendants with the liability to pay Rs. 5 per month as rent. The case was based on the wajib-ul-arz, contract and usage.
2. The defence, in the main, of defendants 1 to 3, was that they were entitled to use and occupy the house without any restriction and that the materials of the house were not supplied by the plaintiff or his ancestors. It was also pleaded that no ground rent was payable by the ryots for their houses and that the entry in the wajib-ul-arz did not apply to shops built by ryots or to those shops which formed part of the residential house. It was further pleaded that the wajib-ul-arz related to the shops in existence at the time of settlement when it was prepared and not to the shops which had come into existence subsequently. Lastly, they refuted the charge that they used any part of the house as a shop; all that they had done was to use it as a godown for the stock-in-trade; they denied the contract or usage forbidding the use of the house as a stock room or as a godown or forbidding any transaction of business at the residential houses of the ryots. The validity of the contract and usage, assuming that they had been proved, was challenged on the ground that they were opposed to public policy and forbidden by law. The applicability of wajib-ul-arz to Chhatari, which had been declared a town area under the Town Areas Act, was also impugned. Acquiescence and estoppel were also pleaded. And, finally the bar of Section 56, Specific Relief Act, was set up as against the relief for an injunction.
3. The learned Munsif held that the village Chhatari did not loose its character of an agricultural village; that, under the general law of the province, the plaintiff, as zamindar of Chhatari, was the owner of the site of the house and the defendants were licensees for residential purposes and under the terms of the wajib-ul-arz, the use of the house by the defendants for any purpose other than residential amounted to an infringement of the plaintiff's right. He also found that in a part of the house defendants 1 to 3 were storing goods for retail sale and another part was being used as a shop. On these findings, the learned Munsif decreed the suit for an injunction restraining the defendants from using the house as a shop. In his opinion rupee one per month was a fair quantum of damages for the use of the part of the house as a shop. Defendant & was treated as an unnecessary party.
4. Defendants 1 to 3 went up in appeal. The learned Civil Judge found that mauza Chhatari had ceased to be an agricultural village. He held further that the materials of the disputed house were not supplied by the plaintiff. In his opinion the conversion of the residential house into a shop was not in contemplation of anybody at the time of the Currie Settlement when the wajib-ul-arz was prepared. He also found that the defendants were not using the disputed portion of the shop for retail sale but as a godown and, in so doing, they were within their rights. The wajib-ul-arz, to his mind, did not apply to the disputed portion of the house, even if converted into a shop, inasmuch as it applied only to those shops which were in existence at the time of the Currie Settlement. His findings on the question of custom and contract were against the plaintiff. He finally came to the conclusion that the Bengal Chaukidari Act and the U.P. Town Areas Act had completely altered the position of the village and had the effect of destroying its agricultural character.
5. The plaintiff came in second appeal ('44) 31 A.I.R. 1944 All. 177 (F.B.) in this Court and various questions were raised. The first and the most important question was whether Chhatari had lost its character as an agricultural village or it still continues to retain it and the wajib-ul-arz governs the rights of the parties. The applicability of the Notified Areas Act as also of Section 299, Government of India Act, was also challenged. On a review of the entire case-law, I came to conclusion that Chhatari is an agricultural village and retains all its incidents and that the wajib-ul-arz still held the field. This view was based upon the law as it has prevailed in this Court ever since the eighties of the last century and was founded upon the principle of stare decisis. I made it clear in my judgment ordpr that this was enough to dispose of the case. I also held that the Town Areas Act could not make an inroad upon the rights of the zamindar assured to him by the law of the land and this view was based on the decision in Fateh Chand v. Kishan Kunwar ('12) 34 All. 579. I wound up my judgment, on both the points in these terms:
In the view which I have taken, it is not necessary to deal with the larger question whether the Town Area Act was ultra vires.
6. As, however, I chose to refer to the other question, not because it was necessary for the purposes of the case, but, as I made it clear, "out of deference to the able arguments of Sir Tej Bahadur Sapru," the learned Counsel for the plaintiff, I briefly addressed myself to it and finally came to the conclusion that, in so far as the Town Areas Act did encroach upon the rights of the zamindar without compensating him for the loss, it was ultra vires. The other member of the Bench which heard the second appeal agreed with me. Mr. Chandra Bhan Agarwala has, however, strenuously argued that, on a plain reading of the section, he is entitled to a certificate. If the language of the section were that "the ease substantially involves, a question of law," there might have been some justification for refusing him redress, but, inasmuch as, he contends, the section merely requires that the case should "involve a substantial question" there is no such warrant. The argument, though plausible, is not sound. The difference between "substantially involved" and "involved" is merely seeming, but not real. The question was, no doubt, debated; it received the attention of the Court; it was also adjudicated upon, but was it involved? Or, in other words, did it really arise and call for a decision?
7. The Act is a new Act and no light is available from any previous judicial pronouncement, but Section 110, Civil P. C, is a section pari materia and the case law which has grown round that section might afford some guide. The language of Section 205, Constitution Act, and that of the last clause of Section 110, Civil P.C., have a close family likeness; in material particulars they are identical. Both speak of a substantial question of law, and both insist that the case should 'involve' it. It is not surprising if, while enacting Section 205 of the Act, the Legislature had in mind Section 110 of the Code. Both the provisions define the limits within which a party can go in appeal - in one case before the Federal Court and in the other before the Privy Council - but, in both, against a decision of this Court. Now, the last clause of Section 110, Civil P.C., is in the following terms:
and where the decree or final order appealed from affirms the decision of the Court immediately below the Court passing such decree or final order, the appeal must involve some substantial question of law.
8. The word 'involve' has been the subject of judicial interpretation in a number of cases. The earliest case is Banke Lal v. Jagat Narain ('01) 23 All. 94. The facts of the case were complicated, but, in brief they were these : In execution of a decree against Ram Sarup and Piare Lal, one Kalka Prasad purchased some property on 20th November 1885. Objections were raised to the sale by the judgment-debtors on the ground of irregularity in publishing or conducting it under Section 311, Civil P.C. The Court allowed the objections and set aside the sale on 5th May 1886. The Code of 1882 did not allow an appeal against this order but permitted a suit. This suit was filed on 20th September 1886. But on the same day, i.e., 20th September 1886, two men, Damodar Das and Jagat Narain, purchased some property from the same judgment-debtors. This included the property purchased by Kalka Prasad on 20th November 1885. No defence was entered by the judgment-debtors but the suit was dismissed by the first Court on 7th March 1887. It was however decreed by the High Court on 14th May 1888. As the decree-holder wanted to take possession of the property, he was resisted by the two purchasers Damodar Das and Jagat Narain. This led the auction-purchaser to file a fresh suit for possession.
9. Various defences were raised, but the learned Subordinate Judge accepted the main defence to the effect that the purchase of 20th November 1885 was tainted with fraud and he dismissed the suit. The appeal, which came up before Sir Arthur Strachey and Promoda Charan Banerji J., was principally decided by both the Judges on the question of fraud. They agreed with the learned Subordinate Judge that the auction-sale was a fraudulent sale. Sir Arthur Strachey however discussed, at considerable length, the other point raised by the plaintiff. That point was this: The purchase was made on 20th November 1885. The effect of the decree of the High Court, dated 14th May 1888, was to hold that the purchase by the plaintiff at no time failed and the purchases by Damodar Das and Jagat Narain must be deemed to have been subject to his inchoate title. In the result, the appeal was dismissed by both the learned Judges. On an application for leave to appeal to His Majesty in Council, the main contention of the plaintiff-auction-purchaser was that the case involved a substantial question of law. That the question of law, which was dealt with by Sir Arthur Strachey, was a substantial question of law - that it was a very important question there can be no manner of doubt, but their Lordships considered the other question whether it was really 'involved' in the case. In construing the meaning of the word "involve" Sir Arthur Strachey has made the following observation:
But can it be said, those findings being as they are, that the appeal 'involves' a substantial question of law? The word 'involve' implies a considerable degree of necessity. It does not mean that in certain contingencies a question of law might possibly arise.
10. Banerji J., as he then was, was still more explicit. Says he:
The mere circumstance that a question of law is raised in the case would not, in my opinion, justify the inference that the appeal involves a substantial question of law if the findings upon the facts do not necessitate a decision of that question.
The italics are mine.
11. This case was followed in Ghisa Singh v. Gajraj Singh ('16) 3 A.I.R. 1916 Oudh. 286 and the ratio was affirmed in Chokkalingam Chetti v. Official Assignee Madras ('41) 28 A.I.R. 1941 Mad. 227 at p. 228. Thel ratio appears to be that the test is not merely the importance of the question but its importance to the case itself. If the facts of the case depend upon a consideration of that point, it will be deemed to be "involved." If, on the other hand, there is a remote contingency of its being taken into consideration, it will not answer that test. The view which I have taken receives support from a recent decision of the Bombay High Court reported in Emperor v. Saver Manuel Dantes ('41) 28 A.I.R. 1941 Bom. 245, a case which turned upon a consideration of Section 205, Government of India Act. The facts of the case were, no doubt, different, but the principle deducible is applicable in the case in hand. The principle underlying all the cases which I have mentioned above is that there must be a pressing necessity for the decision of the point. The point may be important or its attractiveness may invite an adjudication, but can it be said that its importance to the case compels decision? This is the principal test and this test the present application does not answer. I, therefore, am of opinion that the applicant has failed to make out a case under Section 205, Government of India Act, and his prayer for a certificate cannot be granted. I would, therefore, reject the application.
Verma, J.
12. I agree that the application should be dismissed and have nothing to add.
Wali Ullah, J.
13. I also agree that this application is without force and should be rejected.
14. The application is dismissed with costs.