JUDGMENT This is a first appeal and relates to a fishery known as Heingangpat, situated at village Heingang within the jurisdiction of the Police Station at Imphal, in Manipur. The area of the land covered by it is about 120 paris (about 300 acres). 2 In 1938 the plaintiffs representing 120 houses of the village and the pro forma defendants representing 40 houses applied to the President of the Manipur State Darbar for permission to convert the Fishery into arable lands, as there was scarcity of agricultural lands in the village. The defendants representing 260 houses of the village raised certain objections, but the President, Manipur State Darbar ordered the conversion, and the settlement of the lands with the plaintiffs and the pro forma defendants. It is also in the above-mentioned capacity that the present suit was prosecuted and defended by the respective parties under Or. 1 R. 8 C. P. C. 3 The principal defendants then appealed to the Maharajah, and the appeal was heard and decided by the Judicial Member, who was empowered to hear such appeals by the Maharajah, and the copy of the appellate order dated 21-7-1941 (Ext. D/A) shows that the order for conversion was maintained and it was further ordered that all the residents of the village, on the basis of houses, should get a share of the land, but they will have to contribute towards the cost of draining the Pat (fishery) to be fixed by the L. R. O. and they will not be entitled to transfer the land so allotted for a period of 10 years. 4 The Maharajah was then moved for a reconsideration of the said order of the Judicial Member, and that matter came up before Maharajah Budhchandra, who had by then succeeded his father. He referred the matter to the Agent to the Crown Representative and the advice tendered by the latter was that the order dated 21-7-1941 could not be set aside, but that order would not prevent those who were not willing to contribute their share of the labour or expense from being deprived of their share of the land in favour of those who undertook the labour and expense. The Maharajah accepted the same and directed the P. M. S. D. to take necessary action accordingly. His order (copy marked Ext. P-E) is dated 7-6-1945. The Maharajah accepted the same and directed the P. M. S. D. to take necessary action accordingly. His order (copy marked Ext. P-E) is dated 7-6-1945. It will be thus clear that the objection of the principal defendants to the conversion was overruled by all. 5 It appears that the matter went before the L. S. O., who made a local enquiry and found that all the expenses for draining and making the fishery land suitable for cultivation were incurred by the present plaintiffs and pro forma defendants, and the principal defendants had contributed nothing towards those expenses. He also found that nearly the entire area had been brought under cultivation and the parties had been enjoying the lands for three years, that is, since 1942. He found the plaintiffs and pro forma defendants to be in possession of a total area of 31 1/2 paris and the principal defendants in possession of 88 1/2 paris. He found that the principal defendants were liable to contribute Rs. 77,969/- to the plaintiffs and pro forma defendants towards these costs of making the land cultivable; and ordered that if the principal defendants fail to pay the amount, the lands in their possession shall revert to the plaintiffs and pro forma defendants of the present suit. That order is dated 4-9-1945 and is marked Ext. A-6 in this appeal. 6 An appeal was preferred against this order of the L. S. O. to the P. M. S. D., who set aside the order of the L. S. O. on the ground that the order of the Maharajah (Ext. D/A), which was also approved by the Agent to the Crown Representative was quite clear on the subject and the principal defendants should be made to pay the draining costs only, which were found by the L. S. O. to be Rs. 16/-per pari; and the order of the L. S. O. including costs of clearing the land, acquiring the fishery rights of the pattadars etc. was at variance with the orders of the Maharajah which were explicit. He therefore allowed the appeal (see copy of the order dated 23-10-1945 - Ext. D/E.). 7 An appeal was taken against this order to the Maharajah, who interpreted the words "labour and/or expense" in the order dated 7-6-1945 (Ext. was at variance with the orders of the Maharajah which were explicit. He therefore allowed the appeal (see copy of the order dated 23-10-1945 - Ext. D/E.). 7 An appeal was taken against this order to the Maharajah, who interpreted the words "labour and/or expense" in the order dated 7-6-1945 (Ext. P/E) to mean the price of labour and expense which was taken into consideration by the L. S. O. and allowed the appeal (see copy of order dated 12-5-1948 - Ext. P/H). In putting this interpretation, what weighed with the Maharajah is best described in his own words: "From the records I find that the land in question was originally a fishery and not a reserved land and that it was purchased from the fishery pattadar by the appellants and the drain was cut in the fishery so as to make it a cultivable land. Only drain cutting will not do in converting it to a cultivable land but there are other expensive works which are inseparable in doing so : vide L. S. Os order in Rev. Appeal No. 14 of 1941-42 regarding compensation of Heingang settlement. So the villagers Respdts. ought to bear not only the draining costs but also share equally all the costs spent towards making the fishery into cultivable lands. From all these facts I see no reason to interfere with the findings of the L. S. O. in Rev. Appeal No. 14 of 1941-42 regarding compensation of Heingang settlement, which I uphold by setting aside the order of P. M. S. D. passed in L. R. A. No. 68 of 1945-46. Appeal allowed". 8 The L. R. O. then asked the principal defendants to pay up, but they informed him that they could not pay the amount. He therefore ordered on 31-5-1948 (Ext. A-7 in this appeal) that the lands shall revert to the plaintiffs and pro forma defendants. The review petition filed against the order of the Maharajah dated 12-5-1948 (Ext. P/H) also failed (see Ext. P/F). 9 The principal defendants then approached the Dewan and also the Governor of Assam (Agent to the Crown Representative) but failed in their attempts to have those orders set aside. On the advent of integration they filed a second petition before the Chief Commissioner, who exercised the powers of the Maharajah for the review of the order of the Maharajah, dated 12-5-1948 (Ext. On the advent of integration they filed a second petition before the Chief Commissioner, who exercised the powers of the Maharajah for the review of the order of the Maharajah, dated 12-5-1948 (Ext. P/H), obviously, suppressing the fact that a previous review application had already been dismissed. To this application the only parties were the principal defendants and the pro forma defendants. The Chief Commissioner with their consent referred the matter of the amount to be contributed by the principal defendants to an Arbitrator (the then Judicial Commissioner) who after an enquiry gave his award that the principal defendants should contribute Rs. 3,535/- towards the cost of making the fishery cultivable. It might be noted here that according to the terms of the reference (Ext. P/D) the total costs of bringing the land under cultivation including the cost of draining it was to be taken into account by the Arbitrator, that is, the principal defendants had agreed that they would share in the total cost incurred for making the land arable. In assessing these costs the Arbitrator therefore took into consideration and allowed not only the cost of draining the Pat (at Rs. 16/- per pari) but some other costs also. He disallowed the rest of the expenses that were claimed by the pro forma defendants before him. The Chief Commissioner, then by his order dated 2-1-1952 (see Ext. P/B), in supersession of the previous orders of the P. M. S. D. and the Maharajah upholding the decision of the L. S. O., ordered that the petitioners before him (principal defendants) may be granted their share of the land on payment of Rs. 3,535/- to the respondents (pro forma defendants). The plaintiffs were neither noticed nor made parties to these proceedings before the Chief Commissioner or the Arbitrator, and it is clear that they were not or could not be represented by the party of the pro forma defendants, who were described as such: "1. Mutum Chaomacha Singh. 2. Paonam Iboton Singh and other 40 houses of Heingang Basti". 10 Thus the present suit was competent and there was no bar to the Civil Courts entertaining such a suit. Mutum Chaomacha Singh. 2. Paonam Iboton Singh and other 40 houses of Heingang Basti". 10 Thus the present suit was competent and there was no bar to the Civil Courts entertaining such a suit. These points also stand concluded by the decision dated 15-3-1956 of this court in this very suit, given in Noroibam Bira Singh v. Waikhom Leirenjao Singh, First Appeal No. 10 of 1956 (A) and I need not repeat the reasons given by the learned Judge (Brij Narain, J.C.) with which I am in respectful agreement. 11. The plaintiffs are, therefore, clearly not bound by the award or the order of the Judicial (Chief?) Commissioner dated 2-1-1952 and are entitled to a declaration to that effect. The learned trial Judge also found that the entire proceedings before the Chief Commissioner and the Arbitrator were without jurisdiction and decreed the claim of the plaintiffs as far as these declarations were concerned. Defendants have also not preferred any counter-appeal or cross-objection against that part of the decree, nor was the same questioned before me. That part of the decree has thus become final and no useful purpose will be served by entering into the reasons for that, but I must observe in the passing that the view taken by the learned Sub-Judge, that the then Judicial Commissioner was not competent to act as an Arbitrator, because the Presidents permission was not obtained, and which was based on Tahira Begum v. State of Hyderabad, AIR 1953 Hyd 105 (FB) (B), was the result of mis-reading that ruling. The point raised in that case was that a Judge of a High Court cannot do any other work except the High Court work and therefore the Commission in question in that case was incompetent. The observations of the Court in the first column of page 110a were in these terms : "One more point; that the Commission is incompetent because its members are the Honble Judges of this Court and under the Constitution Act no Judge of a High Court can do any other work than the High Court work. But, evidently, he can do other work by the permission of H.E. the President although as a matter of fact, to the best of my knowledge, the said permission has not been obtained. But, evidently, he can do other work by the permission of H.E. the President although as a matter of fact, to the best of my knowledge, the said permission has not been obtained. Hence this argument is not of much force." 12 It will be thus seen that the Court did not uphold the contention that the Commission was incompetent for this reason. I find no bar anywhere in the Constitution which lays down such a restriction. It is well acknowledged that High Court Judges are not Government servants. It follows therefore that they are not governed by the ordinary rules applicable to Government servants. The obvious result is that they do not suffer from any such disqualification, except of course barring those cases where they might be liable to removal under Article 218 read with Article 124 clause (a) of the Constitution. The next thing to be considered in this connection are the provisions made in Part D of the Second Schedule to the Constitution. The relevant provisions are contained in Rules 10 (1) and 11 of that Part and the emphasis is on the words "actual service." The result of those rules is that if a Judge of a High Court undertakes any other work to the exclusion of his judicial duties without the permission of the President then the period spent for doing such work will not count for his pay as a Judge. But there is a world of difference between that and saying that anything done by him without the Presidents permission would be a nullity. It is also necessary to point out in this connection that the provisions of Articles 217, 218 or 221 and therefore also of the Second Schedule to the Constitution do not apply to the Court or Office of the Judicial Commissioner (see Judicial Commissioners Courts (Declaration of High Courts) Act, 1950). 13 Now we come to the real subject-matter of this appeal. In brief it is this : The plaintiffs claimed that the order of the Chief Commissioner dated 2-1-1952 being not binding on them the position is that the parties are governed by the order dated 12-5-1948 (Ext. 13 Now we come to the real subject-matter of this appeal. In brief it is this : The plaintiffs claimed that the order of the Chief Commissioner dated 2-1-1952 being not binding on them the position is that the parties are governed by the order dated 12-5-1948 (Ext. P/H) and the assessment made by the L.S.O. Since the principal defendants did not pay that amount they have no right to share the land, and this was also declared by the order of the L.R.O. dated 31-5-1948 already referred to above. The plaintiffs, therefore, asked for a declaration of their (which includes pro forma defendants also) title to the entire lands, alleging that they were already in possession of the entire lands. 14 The contention of the principal defendants on the other hand was that plaintiffs and pro forma defendants were not in possession of the land of their (defendants) share and therefore their claim for declaration of title unaccompanied by any consequential relief was not maintainable. Their further contention, which appears to have been urged before the trial court, though it does not appear in the pleadings or issues was that the plaintiffs were not entitled to that relief also because the order of the Judicial Member dated 21-7-1941 (Ext. D/A) was final, and the subsequent orders allowing other expenses besides the cost of draining were without jurisdiction, and since the pro forma defendants had already deposited their quota of the draining costs of Rs. 16/- per pari they were entitled to the lands of their share which were already in their possession. 15 The learned trial Judge upheld both these contentions of the defendants and dismissed that part of the claim of the plaintiffs and this appeal is principally directed against that decision. 16I take up the question of possession first It is undisputed and cannot be disputed that if the plaintiffs were not in possession of the 88 1/2 paris of the land allotted to the principal defendants and others of their party on the date they filed the present suit they cannot be granted a declaration of title to that land, even if it were assumed for the sake of argument that they have a title to it because of the prohibition contained in the proviso to S. 42 of the Specific Relief Act. 17 In my opinion the plaintiffs have failed to prove such possession and the finding of the Lower Court on that issue must be upheld. The learned counsel of the appellants urged that it was open to this court to grant a decree for possession subject to the plaintiffs amending the plaint and paying the necessary court-fees. I do not think that course is permissible, first because the request is coming at a very late stage and secondly because it will raise further and unnecessary complications, as in my opinion the claim for possession could not be defended in a representative capacity, that is, under the provisions of O. 1 R. 8. That course is permissible under that rule only when numerous persons have the same interest in one suit. But that was not the position in the present suit. Different portions of land were allotted to different persons and ordinarily Appellant separate suit would be necessary against each, though it might be permissible to join them all in one suit because common questions of fact or law would arise, but that would not do away with the necessity of joining all the persons claiming an interest in the land or lands. Any decree for possession, if passed in this suit will not thus bind the persons not made parties and would be also incapable of execution on that account. 18 In view of this no useful purpose will be served by also entering into the question whether costs of driving out the water alone were intended to be covered by the order dated 21-7-1941 (Ext. D/A) and/or whether the Maharajah could modify or change that order later. The last question involves going into the question of the powers of the Maharajah that he possessed during that period and the arguments addressed on the point disclosed that, that question is not free from difficulty and depends upon an elaborate examination of the changes brought about by the introduction of the Assam Land Revenue Manual sometime during that period, and the various rules and orders of the different authorities passed during that period, which were not placed before the court. As already noticed these points were also not raised clearly in the pleadings nor did the trial court put them into the issues. The Lower Court ought not to have therefore gone into and given a decision on that point. As already noticed these points were also not raised clearly in the pleadings nor did the trial court put them into the issues. The Lower Court ought not to have therefore gone into and given a decision on that point. The best course in the circumstances would therefore be to keep this question open to be decided in the suit or suits for possession that the plaintiffs might choose to bring and I do so. 19 I have already referred to the order of the L.S.O. (Ext. A-6) which goes to show that the defendants party was already in cultivating possession of 88 1/2 paris of land from 1942, and the order of the L.R.O. passed in 1948 (Ext. A-7) to the effect that the lands shall revert to the plaintiffs also goes to show the same, that is, the principal defendants and others of that group were then in possession. Looking to the fact that the defendants were making further attempts by all kinds of petitions etc. to have the order of 12-5-1948 set aside, and were insisting that they were not liable to pay anything more than Rs. 16/- per pari as decided by the P.M.S.D. (Ext. D/E) it appears also improbable that they would give up possession of the lands, especially when the order in the arbitration proceedings also went in their favour. The present suit was instituted within about 2 months of the final order of the Chief Commissioner in the arbitration proceedings, and it appears therefore most unlikely that the plaintiffs were in possession of these lands on the date they instituted the present suit. The very Schedule tiled in the plaint in respect of these lands goes to show that there was some kind of allotment of these lands to the defendants group, otherwise the land in the possession of each would not bear a patta number. The copy of the order of the Sadar Panchayat (Ext. D/F) also lends support to that view. The defendants also asserted that they were in possession from the beginning in all the interlocutory proceedings in tile suit. The undertaking given by the defendants counsel on 19-8-1954 was in respect of the land allotted to the plaintiffs as per order of 1941 (Ext. D/A) and in any case it was given not before the suit, but more than two years after the institution of the suit. The undertaking given by the defendants counsel on 19-8-1954 was in respect of the land allotted to the plaintiffs as per order of 1941 (Ext. D/A) and in any case it was given not before the suit, but more than two years after the institution of the suit. 20 P.W. 1 admitted in cross-examination that after defendants had deposited Rs. 1,430/- the Revenue Office made a distribution of the land to the plaintiffs and defendants. He also admitted that when a notice was given to defendants counsel based on the above-mentioned undertaking, counsel replied that defendants had not entered their share and plaintiffs would suffer if they entered the share of defendants, which also goes to show that the undertaking was not about defendants share, and the defendants claimed to be in possession. On the side of defendants one of the defendants (D.W. 1) swore in support of the allegation that defendants were always in possession. There was also some more oral evidence in support of it. The only conclusion that could be drawn on the basis of all this could not therefore be but one in favour of the principal-defendants. Thus the finding of the trial court that the defendants were in possession of their share of the land when the present suit was instituted must be up-held. 21 The result is that the appeal fails and is dismissed, but looking to the fact that appellants were forced to bring this appeal due to the finding of the Lower Court, which matter I have now kept open, I order that costs in this appeal shall be born as incurred. Appeal dismissed.