JUDGMENT
1. This is an appeal in execution proceedings raising the question of the liability of qazi watan land to be sold in execution. The material facts are very few. The appellant in this Letters Patent Appeal brought a suit against the respondent in 1925 and got three fields in the possession of the respondent, attached before judgment. He obtained a decree on August 26, 1926. It was a decree for money, but it provided that the attachment on the three fields was to continue until the decree was satisfied. In execution proceedings the Court ordered that one of these fields, Survey No. 82 plot No. 1, which is qazi watan land, should be sold. This order for sale was made on August 8, 1928. Execution of the decree was then transferred to the Collector. Defendant made an application to the Collector contending that the land was not liable to be sold, but the Collector rejected his application, and the land was sold on June 26, 1930. In the meantime, on April 16, 1930, the defendant had applied to the Subordinate Judge repeating the contentions which he had made before the Collector, viz., that as the land in question is inam granted to the defendant as qazi service emolument and as it is non-transferable by the terms of the sanad, it cannot be sold. The Subordinate Judge held, on September 8, 1930, that there was no legal bar to the defendant’s interest in the land being attached and sold in execution of the decree against him. Subsequently, on September 25, 1930 the Collector confirmed the sale. There was an appeal from the Subordinate Judge’s order to the District Judge who agreed with him and held that the land is liable to be sold. On second appeal, however, Tyabji, J., took the other view and has set aside the sale.
2. The first part of his judgment is an exhaustive examination of the law relating to the powers of the Collector in execution proceedings transferred to him. We do not consider it necessary to accompany the learned Judge over this ground. There may of course be cases in which there is room for doubt as to the respective powers of the Collector and the Court, but in the present case we think the matter presents no difficulty. The Court had ordered the sale of this land which had been attached before judgment. In exercise of the powers conferred by Schedule III the Collector could postpone the sale, or let or mortgage the land instead of selling it or sell part of it only. But it was not open to him to allow the validity of the order for sale to be questioned. In that respect he can be in no better position than a Court executing a decree transferred to it; he cannot go behind the decree. Conversely, as it is not within the Collector’s competence to consider this question, it must be open to the Court to consider it, on a proper application and assuming that there is no bar, of res judicata. The mere fact that the carrying out of the Court’s order has been delegated to the Collector cannot deprive the Court of jurisdiction to consider the validity of the order. If any authority is required for these propositions, it will be found in Onkar Singh v. Mohan Kuer 20 A. 428 : A.W.N. 1898, 96. The only point of this kind which could really arise is whether it was open to the defendant to question the validity of the Court’s order for sale by an application in execution when he had not appealed against the order.
3. But that particular point has not been taken in any of the lower Courts and in accordance with the usual practice, we have declined to allow it to be taken in the Letters Patent Appeal. Mr. Kane, who appears for the appellant, cited Parbhu Lal v. Badri , in support of his right to argue the point before us. In that case some decisions of the Privy Council have been referred to, but we do not think that there is anything in these cases which affects the power of the High Courts to decide what matters they will consider in a Letters Patent Appeal. A Full Bench of the same High Court in Mahabir Singh v. Dip Narain Tiwari , has recognized the practice according to which new points are not to be allowed to be raised in such appeals, though it was held that that practice does not mean any absolute prohibition. In Shripad Shivram v. Shivram Bhikaji 36 Bom. L.R. 1052 : 152 Ind. Cas. 1031 : A.I.R. 1934 Bom. 466 : 7 R.B. 203, our own High Court has held that in an appeal under the Letters Patent the appellant is not entitled to be heard on joints which had not been raised before the Judge from whose judgment the appeal has been preferred. Teja Singh v. Gurcharan Singh 11 Lah. 535 : 128 Ind. Cas. 57 : A.I.R. 1930 Lah. 632 : 31 P.L.R. 281, was followed. We think the practice is salutary and we see no reason why we should depart from it in this case. We must take it, therefore, that the question whether the land is liable to be sold is still open for consideration on the merits. That question depends upon the construction of the sanad which is set out at p. 6 of the print. The sanad which is dated July 1, 1867, begins by reciting that certain land held as watan official emolument under the authority of the British Government is entered in the village accounts. Details of the land are then given. In the column for “designation of office” the name of the defendant’s ancestor is given. The authority for permanent continuance of the grant is given as the Inam Commission’s decision, No. 263 of December 31, 1852. Then there are details of the land, field No. so and so, measurement so and so, and assessment so and so. Then follows this provision:
It is hereby declared that the said land shell be permanently continued as the service emolument appertaining to the said office on the following conditions, that, is to say, that the holders thereof shall perform the usual service and shall continue faithful subjects of the British Government. As this watan is held for the performance of service, it cannot be transferred, and in consequence no nazarana will be levied.
4. The sanad is in the ordinary form for grants to village servants useful to the community and is so printed in Joglekar’s Alienation Manual at p. 311. As I have mentioned, the person whose name appears under the heading “designation of office” is defendant’s ancestor and it is not disputed that the land has descended from father to son. It is also not disputed that the defendant performs the duties of aqazi. Mr. Kane contends, however, that he is not legally a, qazi because the office of qazi, under Muhammadan Law and as held by the Courts, is not hereditary and the defendant has not been appointed qazi by anybody. Therefore, he says, in spite of the terms of the sanad, his interest in the land can be sold. Tyabji, J., points out in his judgment that when the ancient texts speak of qazi, they refer to a judicial office having entirely different functions from those of the religious officiant now spoken of as a qazi; and the applicability of the original texts to the question whether the office now known in India as that of a qazi should be hereditary may not be incontrovertible. There is a Special Act, the qazis Act XII of 1880, under which appointments of qazis may now be made, although the Act does not confer on the qazi the exclusive right to perform functions which his office requires him to discharge. This Act has been applied to some parts of the Bombay Presidency but apparently not to the District of Belgaum with which we are concerned. That being so, it seems to be a matter of doubt whether any valid nomination to the office of qazi could now be made.
5. However that may be, the question whether the defendant is legally entitled to hold the office of qazi or not does not appear to be relevant as between the parties to this litigation. She sanad declares that the land shall be permanently continued as service emolument appertaining to the office of qazi. Defendant is at any rate de, facto qazi and is performing services as such. If he is not legally entitled to perform those services, it may be open to the Government which granted the sanad to resume the grant. What the effect of resumption would be, whether defendant might be turned out of possession or merely required to pay full assessment, I need not consider. As long as the sanad remains in force, I cannot accept Mr. Kane’s contention that the land can be transferred to a person like the plaintiff who has nothing to do with the office of qazi and is not even a Muhammadan. That would be inconsistent with the plain terms of the grant. Nor can I see any force in the distinction which the learned Advocate attempts to draw between the sale of the land and the sale of defendant’s right, title and interest in it. Nothing more than the interest of the defendant in the land could of course be sold in execution of a decree against him. But the practical effect of the sale would be that the land would cease to be available as remuneration for the qazi’s services and that is contrary to the sanad.
6. The other line of argument for the appellant is that the Inam Commission only dealt with the right of exemption from paying the assessment and that the expression “permanently continued” in the sanad did not apply to the land but only to the continuance of the exemption. Tyabji, J., has sufficiently disposed of that argument in his discussion of the provisions of Act XI of 1852 and of the authorities. I think it is only necessary to say that the plain language of the sanad negatives the construction which Mr. Kane, wishes us to place upon it. The land is the watan official emolument, the land is to be permanently continued, and the watan, which in the context can only mean the land, cannot be transferred. Mr. Kane is unable to explain how, if the watan meant merely exemption from assessment as he says, it could possibly be transferred apart from the land. He can only say that if the land is transferred, the exemption would cease. But that is not what the sanad says. No case has been cited to us in which the Court has construed a sanad in this form and held that the land can be sold. We think, therefore, that Tyabji’, J.’s decision is right and dismiss the appeal with costs.