JUDGMENT This is a first appeal by the plaintiffs from the judgment and decree of the District Judge, Manipur in Civil Suit No. 4 of 1955, dismissing the plaintiffs claim for declaration in respect of about 70 paris (about 175 acres) of land situated at Pangei village described in detail in Schedule "A" to the plaint. The suit was filed by the four plaintiffs in a representative capacity on behalf of other tenants also under the provision of order 1 rule 8 of the C. P. C. 2. It appears that when the British took over Manipur State after the rebellion of 1891 they granted this land and some other lands to one Hafiz Fateh Shah and his brother - Sheriff Shah, who were from the Punjab in recognition of services rendered during the rebellion and the land was also mutated in their names. Hafiz and his brother, then allowed the plaintiffs or their predecessors and others to re-claim the land and bring it under cultivation. Thus, the plaintiffs including the other occupants have been in cultivating possession of the land as tenants of Hafiz and his brother for the last about 60 years. They paid rent (loushal) to Hafiz and his brother and on their death to their heirs through one Chand Khan (defendant No. 6) their agent, but no change in the mutation was got affected after the death of Hafiz (which occurred long ago) and his brother (who died in 1920). Some of these heirs also died being succeeded by their heirs, but no action was taken to have the land mutated in the name of the successors. 3. In 1949, the Manipur State Council passed a resolution (Resolution No. 13 dated 7-9-1949 Ext. A/2) that the Patta granted to Hafiz and his brother was against the customary law of the State, namely, that no one shall hold more than 10 paris of land without the special permission of the State Government. They, therefore, directed the Land Revenue Officer to issue notices to all parties concerned to show cause within 30 days from the date of service of the notice, why the patta in respect of land in excess of 10 paris be not cancelled, and if the cause shown be found to be not satisfactory, then to cancel the patta accordingly and to take possession. 4. 4. Notices were accordingly issued and some objections were also received from the heirs of Hafiz, who were then living in Pakistan and from Chand Khan their agent. The matter went on pending without any action for some time and in 1950 the file was submitted to the Chief Commissioner by the Officer concerned with a suggestion that it should be decided by a competent Officer whether the excess land should be confiscated or not in the light of the objection of the Hafiz family. The Chief Commissioner directed the Deputy Commissioner to take action in the matter and to expedite it (see Ext. A/3). 5. On 2-11-1950, the Chief Commissioner passed an order that since the persons in whose names the patta stood were all dead and the heirs had not got the land mutated in their names and Chand Khan, who claimed to be their agent was an interloper, pending decision of the question of confiscation of the land as per Council Resolution No. 13 of 7-9-1949, the Sub-Deputy Collector should take over possession of the entire area and recover the grain rent (loushal). The land thus came under the management of the Government, who also recovered rent from the tenants (see Ext. 6). 6. The Deputy Commissioner on 27-2-52, submitted a report to the Chief Commissioner (Ext. 11) that since the pattadars of the land or their heirs were traceless and no application for mutation had been filed the settlement of the land should be annulled. He further recommended the cancellation of the settlement under rule 26 chapter I Part II of the Assam Land Revenue Manual (which applied to Manipur State) as the settlement was in contravention of the rule that no one will hold more than 10 paris of land. 7. The Secretary to the Government then conveyed to the Deputy Commissioner the following orders of the Government on 24-5-1951 (Ext. 12) : "I am directed to say that it would hardly be fair for us not to recognise the title of Sharif Shah and his relations to the land and to proceed to confiscate it outright after they have been in possession for such long period. The holders of the pattas or their legal heirs may be allowed to dispose of the lands to the actual tenants". 8. The Deputy Commissioner then made an attempt for the purchase of the land by the tenants. The holders of the pattas or their legal heirs may be allowed to dispose of the lands to the actual tenants". 8. The Deputy Commissioner then made an attempt for the purchase of the land by the tenants. By that time, defendant No. 3 Benoy Krishna Bhattacharjee had come on the scene as an agent of the heirs of the original holders and it appears from the notice issued by the Deputy Commissioner on 29-7-1952 (Ext. A/13) that a certain price was agreed for the land and the tenants in occupation were given time till 31-12-1952 to pay and purchase the land. Thereafter time was extended till 31-1-53 by defendant No. 3 acting as the agent of the heirs of the original pattadars. But the tenants did not pay the price and the matter fell through. On 24-1-1953, some of the tenants also applied to the defendant No. 3 as agent of the heirs of Hafiz requesting him to keep them on the land as tenants (Ext A/14). 9. In 1953, Chand Khan as special agent of the heirs of the original holders and defendant No. 3 as one of the purchasers made applications for the mutation of the lands in the names of defendants Nos. 1 to 5, but those applications were rejected by the Sub-Deputy Collector as no registered sale deed was produced before him (Ext. A/10). In 1954, again mutation was sought in favour of the purchasing defendants on the strength of a registered sale deed and the Deputy Commissioner allowed it by his order dated 22-7-1954. The tenants appealed to the Chief Commissioner against that order, but the appeal failed (see Ext. A/11 and Ext. A/12). 10. These facts were not disputed before me and I have mentioned them at some length to facilitate the understanding of the case as they cannot be readily gathered from the pleadings which are neither specific nor clear. Pleadings of the parties in these parts are usually incomplete, lacking in details and defective, and more often than not each party develops its case as it proceeds and the present case is no exception. It was also admitted that the plaintiffs and other occupants of the suit land were tenants of the type which is known as annual tenant in these parts. It was also admitted that the plaintiffs and other occupants of the suit land were tenants of the type which is known as annual tenant in these parts. The lease of such a tenant is initially for a year but goes on being automatically renewed from year to year unless the landlord gives intimation to the tenant before the Sri Panchami day that he does not want to let out the land for the next year. 11. The case of the plaintiffs, in substance, was that the Council Resolution No. 13 dated 7-9-1949 had the effect of cancelling the settlement of the land with Hafiz and his brother and the succeeding Government was not competent to set aside that cancellation, which it did by the order conveyed in the Secretarys letter dated 24-5-1952 (Ext. 12). The subsequent order being void the confiscation of the land stood, that is, the land reverted to the Government and the tenants were entitled to get settlement of the land from the Government. It was also alleged that there was no proof that Chand Khan (defendant No. 6) the agent of the heirs of the original pattadars, who executed the sale deed of the land in favour of the purchasing defendants Nos. 1 to 5, on the strength of which mutation had been granted in their favour, had valid authority to sell the land and the sale transaction was also challenged as fraudulent and collusive. The plaintiffs, therefore, claimed the following reliefs: "(a) That a declaration be made that the sale transaction of the suit land between defendant No. 6 and defendants Nos. 1 to 5, on the strength of a power of attorney which has not been duly proved, is a fraudulent one and as such it is invalid and inoperative. (b) That a declaration be made that the Government of Manipurs order contained in letter No. R/4/52 dated 24-5-52, setting aside the Council Resolution No. 13 of 7-9-1949, is null and void and all the proceedings taken under it culminating in the mutation of the pattas of Pangei land in the names of defendants Nos. 1 to 5, are void and inoperative. (c) That such other relief which the court deems fit and proper with costs be granted". 12. 1 to 5, are void and inoperative. (c) That such other relief which the court deems fit and proper with costs be granted". 12. The defence, as far as it can be gathered from the written statements filed and the issues framed was that the plaintiffs were not competent to bring a representative suit and were not entitled to question the order sanctioning the mutation, or the transfer in favour of defendants Nos. 1 to 5. They could not similarly question the power of attorney in favour of defendant No. 6. The customary law that no one could hold more than 10 paris of land was denied and in the alternative it was asserted that the customary law in question and the Council Resolution No. 13 dated 7-9-1949 were ultra vires the Constitution of India, as they went against the fundamental rights guaranteed by the Constitution of India. The jurisdiction of the trial court was also questioned on the ground that the defendants Nos. 1 to 5 who are evacuees from the East Pakistan took the suit land in exchange of their immovable properties in East Pakistan. Thus the matter became one of International Law, and the transaction having been recognised by the Government of the two countries (that is, by sanctioning mutation in favour of defendants Nos. 1 to 5 here) the matter was beyond the jurisdiction of civil courts of this country. It was contended that court-fee was payable on the market value of the land not for a suit for mere declaration. The plea of estoppel, waiver and acquiescence was also raised. It was then pleaded that the suit was not, in any case, maintainable as the plaintiffs who were admittedly tenants had not shown as to how their interest could suffer and what could be the cause of action for the suit. Obviously, what was meant by this last plea was that the conditions necessary to attract section 42 of the Specific Relief Act being absent, the plaintiffs were not entitled to declaration of any kind. 13. The learned District Judge held that the court had jurisdiction to try the suit and plaintiffs were competent to bring the suit in a representative capacity. 13. The learned District Judge held that the court had jurisdiction to try the suit and plaintiffs were competent to bring the suit in a representative capacity. He held that the court-fee paid on the plaint was proper, and that there was a customary law in the Manipur State that a person could not hold more than 10 paris of land without special permission, but it was not ultra vires the Constitution of India. The authority of Chand Khan, defendant No. 6 to sell the land to defendant Nos. 1 to 5 and the transaction of sale being fraudulent and void he found not proved. As regards the effect of Council Resolution No. 13 of 7-9-1949 he decided that the resolution did not actually confiscate the land and the question of that resolution being ultra vires, did not, therefore arise, and the order conveyed in the Secretariat letter dated 24-5-1952 (Ext. 12) that the land be not confiscated was valid and operative. He held that the plaintiffs were estopped from questioning the title of defendants Nos. 1 to 5 and had no locus standi to question mutation or transfer in favour of defendant Nos. 1 to 5 or the order of the Government not to confiscate the land. According to him, the plaintiffs had no cause of action as they were not entitled to claim the declaration, because the conditions requisite under section 42 of the Specific Relief Act were wanting in the case. 14. The arguments of the counsel, for the appellants were directed to show that the points held against the plaintiffs ought to have been held in favour of the plaintiffs-appellants and they should have been granted the declarations claimed. 15. The first contention of the learned counsel was that in view of the customary law, the grant of more than 10 paris of land to Hafiz and his brother was initially bad that is, void, and they did not acquire any title to the land in excess of 10 paris. The reply to this was that the customary law had not been proved and in any case it was ultra vires the Constitution of India as it offended the provision of Article 19 (1)(f) and the restriction imposed was not reasonable within the meaning of Article 19 (5). The reply to this was that the customary law had not been proved and in any case it was ultra vires the Constitution of India as it offended the provision of Article 19 (1)(f) and the restriction imposed was not reasonable within the meaning of Article 19 (5). This really involves the question whether there was such a customary law at the time when the land was originally granted to Hafiz and his brother in about 1891, but this point appears to have been missed in the Lower Court. An examination of the oral and documentary evidence brings out that there is no evidence to show that such a customary law prevailed in about 1891, rather some of the official documents which throw a light on the subject give reason for doubt if such a customary law existed as far back as about 1891. In para 2 of the report dated 27-2-1952, that the Deputy Commissioner, Manipur, made recommending that the settlement of the suit land be cancelled (Ext. 11), he made the following observations : "The law in Manipur was that no non-Manipuris could hold land in Manipur except with the permission of the then State authority which was given in very exceptional cases. The rules further provided that nobody could be allowed to hold more than 10 paris (1 pari : 71/2 bighas) (Darbar Resolution No. 10 dated 12-2-41 read with Darbar Resolution No. 1 of 30-7-41 refers). In contravention of these rules Sheriff Shah and his family (Punjabi Muslims) were given patta for large tracts of agricultural land as well as town land for residential purpose". 16. Those observations incline one to the view that the rule came to be introduced for the first time in 1941 by the Darbar Resolution referred to in those observations. 17. In Ext. A/1, which is a copy of the minute dated 13-8-49 of the Dewan, his observations were : "... .The question is whether or not the State can take over possession of certain lands which are said to be excessively held by an individual". ……."The State may decide to deprive the present owners of the property on the ground that they possess more land than what has been general rule or so to speak an unwritten law in this connection......." 18. ……."The State may decide to deprive the present owners of the property on the ground that they possess more land than what has been general rule or so to speak an unwritten law in this connection......." 18. It is significant that he does not refer to the original grant being against any rule, but confines himself to the making of a statement as regards the present position, by using the expressions "lands which are said to be excessively held by an individual" and "on the ground that they possess more than what has been generally the rule etc." 19. In Resolution No. 13 of 7-9-49 (Ext. A/2) no doubt, it was stated that the pattas in question were granted against the customary law of the State, but if it was so then why was 20 paris of land not allowed to the holders when the grant was made to 2 persons (Hafiz and his brother). The resolution itself shows that they were dealing with the estate of Hafiz and his brother. I mention this only to show that this gives room for doubt as regards the terms of the custom, if any and its age. 20. In the trial Court reliance was placed on the Registration Rules which were applied in 1947 to Manipur State, except such parts of the British Reserve, which had not been, till then retroceded. Rule 8 prohibits the Registering Officer from registering a sale deed unless it is accompanied by a certificate of the vendee that the purchase will not make the area of land possessed by him more than 10 paris or area which he has been specially allowed to possess by the Darbar. The rule also provided that if such certificate is found to have been falsely given the person responsible will be severely punished, but that rule does not establish the existence of the alleged customary law much less that it existed at the time of the grant to Hafiz and his brother. 21. It was pointed out by the learned counsel of the appellants that the rule existed as unwritten customary law before 1947 when it was embodied in the Registration Rules. That again brings to the fore the question whether there was such an unwritten law when the impugned grant was originally made. 21. It was pointed out by the learned counsel of the appellants that the rule existed as unwritten customary law before 1947 when it was embodied in the Registration Rules. That again brings to the fore the question whether there was such an unwritten law when the impugned grant was originally made. The customary law was specifically denied by the defendants and the burden lay heavily on the plaintiffs to prove it, but they failed to produce the available evidence and to discharge that burden. It must, therefore, be found that it has not been satisfactorily established that such a customary law was in force in or about 1891. 22. But even if it were to be assumed that such a customary law prevailed at the time of the grant made to Hafiz and his brother, I think nothing will turn on it. It is not disputed that the grantors had power to grant and it is admitted that by special permission of the Government one could be allowed to hold more than 10 paris. It appears that the grant was made when the British had taken over the Government after the rebellion. Admittedly then, they had the power to give special permission contemplated by the customary law in question and such a special permission on their part would be implicit in the very grant which they made in respect of 70 paris of land and more. In this view of the matter the grant of the entire land to Hafiz and his brother would be valid and there could be no justification for the Resolution No. 13 dated 7-9-49. The question of such a customary law being ultra vires the Constitution does not now arise, but even if it arose I am of the opinion that it would not be ultra vires as the restriction imposed was reasonable within the meaning of Article 19(5) looking to the social and economical conditions of this State and the fact that the restriction was not absolute and Government could always give permission to hold more if the circumstances so justified. Resolution No. 13 dated 7-9-49, based on that customary law therefore cannot also be said to be ultra vires of the Constitution. 23. Resolution No. 13 dated 7-9-49, based on that customary law therefore cannot also be said to be ultra vires of the Constitution. 23. The next argument advanced on behalf of the appellants was that the learned District Judge had misread and misconstrued the import of the Council Resolution No. 13 dated 7-9-49 (it was amended in respect of the area of certain lands mentioned in it by Resolution No. 3 of 21-9-49 - Ext. A/8). The argument was that in view of what was said in the last three lines of the resolution and the failure to show good cause on the part of the heirs of the original holders the land could not but be confiscated and it was not open to the succeeding Government to deviate from it, as that Council Resolution operated as a law of this State, and reliance was placed on Babu v. Parasaram AIR 1954 Madh-B 78, at p. 80 para 5 (A). The further argument based on this proposition was that the plaintiffs and other occupants being in possession would be then entitled to obtain settlement from the Government under Rule 15 in Chapter I Part II of the Assam Land Revenue Manual. That is, on this ground they were entitled to the second declaration. 24. The last three lines of the Resolution No. 13 dated 7-9-49 (Ext. A/2) run thus : "If the cause shown be not found satisfactory the pattas of all the lands in excess of all the 10 paris will be cancelled and the L.R.O. shall take possession of the same". 25. It is clear from that part of the Resolution that it was decided to confiscate the land, unless the heirs showed good cause. It appears from the report of Sri R. Singh dated 3-5-50 (Ext. A/3) that an objection in answer to the notice issued in accordance with the resolution was received from the heirs and as already stated before, the proceedings culminated in the order of the Government conveyed by the Secretary on 24-5-1952 (Ext. 12). It is obvious that the Government were satisfied that there was good cause for not confiscating the lands and that cause appears from the letter dated 24-5-1952 (Ext. 12). It is obvious that the Government were satisfied that there was good cause for not confiscating the lands and that cause appears from the letter dated 24-5-1952 (Ext. 12) to be that it would not be fair to confiscate the land after such a long time, that is, after the breach, if any, had been allowed to stand for so long. No one will deny that, that was a good cause. As we know the whole of the law of limitation is based on delay and latches. The discretion to decide what was satisfactory cause was left to the Land Revenue Officer by the Resolution No. 13 and one fails to understand how fault can be found when that decision was taken by the Government and for good reasons. 26. There is thus no force in the contention that the Government was bound to confiscate the land. It is also difficult to understand how the order or decision contained in Resolution No. 13 would operate as the law of the land so as to attract the principles reproduced in para 5 of the judgment in Babu v. Parasaram (A) or contained in Article 51 (c) of the Constitution of India. It will be hardly disputed that the old Government had the power to allow the holders to hold land in excess of 10 paris. It follows, therefore, that the succeeding Government had the same power, and what was done by the final order conveyed on 24-5-1952 was nothing more than this as already seen. 27. There was thus never any confiscation and the order conveyed in the Secretariat letter dated 24-5-1952 was perfectly valid and not void as alleged by the plaintiffs. In view of this finding the question that they were entitled to get settlement under R. 15 of the Assam Land and Revenue Regulation, 1886 does not arise. But even if it were held that there was a confiscation the position of the plaintiffs would not alter, as in that case they become under the law the tenants of the Government on the same terms, that is, annual tenants liable to be ejected on service of a notice before Sri Panchami Day. But even if it were held that there was a confiscation the position of the plaintiffs would not alter, as in that case they become under the law the tenants of the Government on the same terms, that is, annual tenants liable to be ejected on service of a notice before Sri Panchami Day. What the plaintiffs really mean appears to be, that their chances of obtaining renewal of the annual leases in their favour would be much better if the land reverts to the Government as Government would not cultivate the land itself, but that is not the same thing as having a right to get settlement or having a right in property. Rule 15 in Chap, I of Part H of the Assam Land Revenue Manual runs thus : "15. No person shall have any right to settlement merely because he is in occupation of land not included in any lease granted by the Provincial Government either to himself or to any other person, but if the Deputy Commissioner be satisfied that the occupant has not taken possession of the land with the intent to defraud the Crown and that the land may with advantage be settled with the occupant shall be offered settlement : provided that in the Assam Valley Districts Division when lands are found occupied which are not included in any lease granted by the Provincial Government either to the occupant or to any other person, and for which no application has been made under R. 5, the settlement of such lands shall ordinarily be made with the actual occupant. If any dispute arises as to who the actual occupant is under this rule, settlement shall be offered to the person whom the Deputy Commissioner considered to be prima facie best entitled to settlement." 28. It will be noticed that at the very beginning the rule makes it clear that it does not give a person in possession the right to get settlement. What the rule provides is that a person in possession shall be offered settlement if the Deputy Commissioner is satisfied on certain points. That clearly means that the person in possession has merely a chance and nothing more of obtaining settlement, but that is not the same thing as a right. What the rule provides is that a person in possession shall be offered settlement if the Deputy Commissioner is satisfied on certain points. That clearly means that the person in possession has merely a chance and nothing more of obtaining settlement, but that is not the same thing as a right. The case of Dhanai Namasut v. Haji Niamuttulla, 39 Cal WN 857 (B), which was cited cannot apply to the present case as it was a case under S. 32 (1) of the Assam Land and Revenue Regulation, 1888 (Part I of the Manual). That section contemplates a person in possession having a permanent, heritable and transferable right of use and occupancy in the land, which plaintiffs admittedly are not. 29. It was also urged that in any case what R. 15 gives amounts to a contingent right and a person having a contingent right is entitled to maintain a suit for declaration under S. 42 of the Specific Relief Act on the basis of the decision in Tarak Chandra Das v. Anukul Chandra Mukherjee, 49 Cal WN 716 : (AIR 1946 Cal 118) (C). That case is distinguishable as the facts there were quite different. In that case part of the amount of consideration for the transfer of property payable to the plaintiff was retained with the defendant on condition that if the reversioner who claimed the property succeeded in his suit then the amount would go to indemnify the defendant, whereas if the reversioner failed then it would be paid to the plaintiff. In these circumstances it was held that the plaintiff has a contingent right in property, and the court could in the exercise of its discretion, grant the declaration asked for. But I do not think that what R. 15 lays down can be taken as giving the person in possession a contingent right in property, and the observations in the case referred to above would go to show that plaintiffs cannot on that score claim any kind of declaration under S. 42 of the Specific Relief Act. Those observations were : "It is perfectly well settled that S. 42 of the Specific Relief Act does not sanction every form of declaration but only a declaration that the plaintiff is entitled to a specific legal character or a right as to property. Those observations were : "It is perfectly well settled that S. 42 of the Specific Relief Act does not sanction every form of declaration but only a declaration that the plaintiff is entitled to a specific legal character or a right as to property. Now, legal character is the same thing as status, whereas a right as to property signifies that there is an existing right of the plaintiff in any particular property. But though the right must be an existing one, it need not necessarily be a right which is vested already. No declaration can possibly be made on the basis of a chance or a mere hope entertained by the plaintiff, but a person having even a contingent right in a property may sue for a declaration, though the court in the exercise of its discretion may refuse to make such declaration if it considers the claim to be too remote or that the declaration given would be ineffectual and abortive. The question, therefore, really is not one of jurisdiction but one of discretion to be exercised by the court." 30. It was next urged that the order of mutation in favour of the defendant Nos. 1 to 5 was illegal and so was the appellate decision upholding that order because the defendants Nos. 1 to 5 admittedly never took possession and mutation could not, therefore, be effected in view of the provisions contained in Ss. 40, 50 (a) and 53 of the Assam Land and Revenue Regulation, 1886. The contention finds support from the decision in Mt. Dukhuni Bibi v. Khalidoor Rahman, AIR 1953 Assam 216 (D) and Jaltiram Choudhury v. Krishna Kanta Rajbansi, AIR 1954 Assam 44 (E). On behalf of the respondents it was contended that since the tenants were in actual possession, it was not possible to deliver actual possession to the purchasers and therefore they should be deemed to be in constructive possession by virtue of their purchase. It was not asserted that formal possession even was delivered at the time of sale. In these circumstances, I am afraid, that mutation could not be sanctioned. But it is not easy to see how plaintiffs are affected by it. They do not claim to be "pattadars" of the land and therefore mutation in favour of defendants 1 to 5 does not, in any way, affect their legal character or right to any property. In these circumstances, I am afraid, that mutation could not be sanctioned. But it is not easy to see how plaintiffs are affected by it. They do not claim to be "pattadars" of the land and therefore mutation in favour of defendants 1 to 5 does not, in any way, affect their legal character or right to any property. It does not come into conflict with their tenancy rights as mutation in favour of defendants Nos. 1 to 5 does not amount to a denial of their tenancy. If they are afraid that the defendants might terminate their tenancy, and it was said that a notice for the same has been given, that would not be a denial of their tenancy rights, on the other hand it would be a recognition of whatever rights they possess as tenants. A person who claiming to be the landlord gives notice to a tenant terminating his tenancy expressly recognises that he is a tenant and in the event of a suit for ejectment being filed the tenant always has the right to show that the plaintiff is not the landlord. Wrong mutation cannot, therefore, give the plaintiffs a right to claim a declaration under S. 42 of the Specific Relief Act. 31. There is no doubt that the Power of Attorney authorising the defendant No. 6 to sell the land to the defendants Nos. 1 to 5 was neither produced nor proved, therefore, the finding must be that the defendant No. 6 was not competent to sell the land to defendants No. 1 to 5. On behalf of the respondents, it was urged that no adverse inference could be drawn because the plaintiffs failed to call for this document. Reliance was placed on Apcar Collieries Ltd. v. Radha Govinda Roy, AIR 1954 Cal 480 (F). But the facts in that case were different. Both the parties had failed to produce their Account Books to prove the disputed payments. But that is not the point involved in this case. The question of defendant No. 6 being competent to sell the land was specifically denied and put into issue. In the circumstances the defendants were bound to produce the alleged Power of Attorney or to cause it to be produced, and it was not necessary for the plaintiffs to ask for it. 32. The question of defendant No. 6 being competent to sell the land was specifically denied and put into issue. In the circumstances the defendants were bound to produce the alleged Power of Attorney or to cause it to be produced, and it was not necessary for the plaintiffs to ask for it. 32. But non-production of the Power of Attorney does not necessarily imply that the transfer was fraudulent or collusive as was urged. It may at the most raise a suspicion but suspicion is not enough. The plaintiffs also failed to lead any evidence in support of this plea. It was urged that the court was entitled to presume under S. 114 of the Evidence Act that the sale deed was fraudulent because the power of attorney was withheld and illustration (g) under that section was pointed out in support of it. I am afraid that illustration only supports the presumption that the defendant No. 6 had no power to sell the land and not that the sale deed was fraudulent. The finding must, therefore, be that it was not proved that the sale was fraudulent or collusive. 33. In the absence of proof that Chand Khan had power to convey the land to defendant Nos. 1 to 5, the defendants do not get a valid title to the land (it remains with the heirs of Hafiz and his brother) and the question arises whether the plaintiffs can on that account claim any declaration under S. 42 of the Specific Relief Act. The learned District Judge held that they could not as their legal status was not, in any way affected by it nor did it amount to a denial of their rights and the matter related purely to the title of the landlord and not to that of the plaintiffs. In his opinion grant of a declaration as claimed will neither improve nor adversely affect the legal status of the plaintiffs and would therefore be devoid of any practical utility. In my opinion, the learned District Judge was right. Under S. 42 of the Specific Relief Act, one cannot claim any and every kind of declaration that he likes. It must be shown that his legal character or right to any property is denied or is in danger of being denied. As already seen that is not the case here. In my opinion, the learned District Judge was right. Under S. 42 of the Specific Relief Act, one cannot claim any and every kind of declaration that he likes. It must be shown that his legal character or right to any property is denied or is in danger of being denied. As already seen that is not the case here. If the defendants have given a notice to the plaintiffs to terminate the tenancy that would not amount to a denial of their status or right as tenants and the plaintiffs will be entitled to show in case the defendants Nos. 1 to 5 file a suit to eject them or for rent that the defendants Nos. 1 to 5 have no title to the land and are not their landlords and cannot therefore maintain the suit. But that does not entitle them to bring Appellant suit for declaration in respect of the title of the landlord because they anticipate that he may not renew their leases. It is not disputed that plaintiffs are annual tenants, and their leases are terminable if notice is given before Sri Panchami Day. It is, therefore, difficult to see how such an action on the part of defendants would be an invasion of the rights of the plaintiffs. That is the reason why a tenant is not entitled to bring an interpleader suit to establish which of the two landlords claiming him to be their tenant, is in reality his landlord. Even the case reported in Ganeshi Lal v. Anwar Khan Mahboob and Co., AIR 1933 All 495 (G), cited on behalf of the appellants would show that the plaintiffs have no right to seek a declaration as regards the title of the defendants under S. 42 of the Specific Relief Act. It was observed in that case, as follows : "Where the effect of negativing a right claimed by the defendant is to directly or indirectly affirm a right claimed by the plaintiff in common with others, a suit for declaration that the defendant does not possess such right is, in my opinion, maintainable. However the relief may be worded, the test is always the same, namely, whether the right claimed by the defendant implies a denial of the plaintiffs right as to any property or to some legal character". 34. However the relief may be worded, the test is always the same, namely, whether the right claimed by the defendant implies a denial of the plaintiffs right as to any property or to some legal character". 34. In the present case it is clear that denial of the right of defendants cannot affirm any right of plaintiffs, nor does the right claimed by the defendants imply a denial of any right of the plaintiffs. For these reasons I am also of the opinion that the present case cannot fall within the purview of illustration (g) to S. 42 of the Specific Relief Act. 35. It is well settled that the grant of declaration under S. 42 of the Specific Relief Act is a matter for discretion of the Court. As already seen plaintiffs lose nothing if the declaration is refused. They can still contest the title of defendants if defendants file a suit to eject them or to recover rent. It is also clear that the plaintiffs filed this suit when they failed in all their attempts to resist mutation and to obtain the lands for themselves. In these circumstances it cannot be said that the learned District Judge exercised his discretion wrongly, in refusing to grant any declaration. 36. The learned District Judge found the plea of estoppel, waiver and acquiescence in favour of the defendants. In my opinion that was not correct. Section 116 of the Indian Evidence Act does not prevent the tenant from showing that the landlord who claims a derivative title and who did not himself induct the tenant into the land, has no title. The case law in support of this view will be found discussed at pages 996 to 998 of Sarkars Law of Evidence (9th edition) and I need not enter into a discussion of the rulings cited on the subject. It is undisputed in the present case that defendants 1 to 5 did not put the plaintiffs in possession of the land. There is thus no estoppel under S. 116 of the Evidence Act. It follows therefore that the plaintiffs can question the mutation, sale and the power of attorney of defendant 6. It is undisputed in the present case that defendants 1 to 5 did not put the plaintiffs in possession of the land. There is thus no estoppel under S. 116 of the Evidence Act. It follows therefore that the plaintiffs can question the mutation, sale and the power of attorney of defendant 6. The other materials on which the plea was applied were the facts that the plaintiffs had agreed with defendant 3 to buy the land, had obtained an extension of time to pay the price and also applied to him to continue them as tenants on the land (Exts. A/8, A/13 and A/14). That was taken as an admission of the title of defendant No. 3 and his co-vendees. But as already seen, defendant No. 3 acted in all this as an agent of the heirs of Hafiz and his brother, and all these negotiations etc. took place before the defendants Nos. 1 to 5 purchased the land. Those acts cannot therefore amount to an admission of the title of defendants 1 to 5 and neither do they prove the presence of the ingredients necessary to bring S. 115 of the Indian Evidence Act into play. It is, therefore, clear that there could be no bar of estoppel, waiver and acquiescence against the plaintiffs. 37. It was urged on behalf of the respondents that the plaintiffs whose number is four only could not institute a representative suit under O. 1, R. 8 of the C.P.C. on behalf of about 200 persons who were the tenants of the land, and the court ought not to have granted permission for the same. It was also pointed out that the name of plaintiff No. 1 did not appear in the list of tenants, and in fact his father, and not he was the tenant. I think there is no force in this contention. Under O. 1, R. 8, the court can permit even a single person to bring a suit on behalf of others. The fact that one of the plaintiffs is not a tenant should also make no difference as he will be a superfluous or unnecessary plaintiff and can be left out of consideration. Even after that is done, the number of remaining plaintiffs would be three, and as already shown even a single person can be allowed to bring a suit under O. 1, R. 8. 38. Even after that is done, the number of remaining plaintiffs would be three, and as already shown even a single person can be allowed to bring a suit under O. 1, R. 8. 38. The next contention raised on behalf of the respondents was that the plaint was liable to be charged with Court Fee under S. 7 (iv) (c) of the Court Fees Act, and not under Schedule II, Art. 17 (iii), as what the plaintiffs were really claiming was a cancellation of the sale deed in favour of the defendants No. 1 to 5. An examination of the plaint leaves no doubt on the point. It is clear from it that what the plaintiffs want is only a declaration that the sale deed in favour of the defendants 1 to 5 is void and not a cancellation of that deed, as urged on behalf of the respondents. It must therefore be found that court-fee was payable under Sch. II, Art. 17 (iii). 39. The question that civil courts had no jurisdiction to try the suit was not seriously pressed before me. The transaction of sale in question was clearly between two private parties and was a private affair and simply because one party was from India while the other was from Pakistan, would not make it an act of the State. It was alleged that it became an act of the State because the transaction of exchange was recognised by the respective Governments by sanctioning mutation. That contention is also without any force as mutation is effected under the civil law of the country and not by an act of the State. The learned District Judge also repelled this contention for reasons which were sound. The finding that civil courts had jurisdiction to try the suit must, therefore, be upheld. 40. The result of my findings is also that the suit was not maintainable and plaintiffs are not entitled to the declarations claimed. I confirm the decree of the District Judge and dismiss the appeal with costs. Appeal dismissed.