Thakur Rudreshwari Prasad Sinha Vs.
Srimati Rani Probhabhati & Ors [1951] INSC 49 (26 October 1951)
DAS, SUDHI RANJAN SASTRI, M. PATANJALI
MUKHERJEA, B.K.
BOSE, VIVIAN
CITATION: 1952 AIR 1 1952 SCR 64
ACT:
Ghatwali tenures --Nature and
incidents--Alienability of Zemindari Ghatwalis Taluka Kakwara whether
alienable.
HEADNOTE:
Taluk Kakwara was in its origin a Zemindari
Ghatwali tenure and continued to be so, and was in fact treated as such ever
since. Even if by virtue of Captain Browne's Sanad it became a Government
Ghatwali tenure, then under the Sanad of Raja Kadir Ali or after the Permanent
Settlement at any rate, it became a Zemindari Ghatwali and as such alienable
with the consent of the Zemindar according to the custom of Kharakpur
judicially recognised [Nature and incidents of Ghatwali tenures discussed].
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 75 of 1950.
Appeal from the Judgment of the High Court of
Judicature at Patna dated 22nd November, 1944, in Appeal No. 238 of 1940
arising out of order dated 13th July, 1940, of the Subordinate Judge of
Bhagalpur in Mis. Case No. 174 of 1939.
The facts of the case appear from the
judgment. The appeal was originally preferred to the Privy Council and was
subsequently transferred and heard by the Supreme Court.
N.C. Chatterjee (B. Sen, with him) for the
appellant.
B.C De (Raghunath Jha, with him) for the
respondents.
65 1951. October 26. The Judgment of the
Court was delivered by DAs J.--This appeal has come up for hearing before us on
transfer from the Privy Council. The appellant is the present holder of Taluk
Kakwara which appertains to Mahalat Kharakpur. The respondents represent the
Banaili Raj which has also acquired the Mahalat of Kharakpur. The respondents
obtained a decree for Rs. 11,587-14-6 against the appellant for arrears of rent
and cess and applied for execution of their decree by the attachment and sale
of Taluk Kakwara.
On August 29, 1939, the appellant judgment-debtor filed an objection under section 47 of the Code of Civil Procedure
alleging that as Taluk Kakwara was held on Ghatwali tenure it could not be sold
in execution of a money decree. This objection was rather too wide, for all
lands held on Ghatwali tenure were not necessarily inalienable. Indeed, in Kali
Pershad Singh v. Anund Roy(1) which related to the Ghatwali Mahal of Kharna
within the Mahalat of Kharakpur the evidence clearly established a number of
instances in which there had been unquestioned transfers and sales applicable to
Mahals in Kharakpur and it was held by the Privy Council that the true view to
take was that such a tenure in Kharakpur was not inalienable, and might be
transferred by the Ghatwal or sold in execution of a decree against him, if
such transfer or sale was assented to by the Zamindar. A sale at the instance
of the Zamindar in execution of a decree for arrears of rent necessarily
implies the existence of such assent. In the later case of Narayan Singh v.
Niranjan Chakravarti(2) which related to the Ghatwali Mahal of Handwa, Lord
Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali
Mahal case was fully supported by the evidence adduced in that case and that
that authority had been repeatedly followed and applied in India, and, so far
as the reports showed, without proof of the custom being required over again.
Lord Sumner, however, pointed out that (1) (1887) L.R. 15 I.A. 18; I.L.R. 15
Cal. 471.
(2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat.
184; A.I.R. (1924) P.C. 5.
9 66 it was plain that as the custom depended
on proof, and as the tenure in question was one in the Zamindari of Kharakpur
and under its Zamindar, it could have no reference to Ghatwali tenures not
under him nor forming part of his Zamindari. The Privy Council in the later
case referred to above saw no ground for thinking that the custom of Kharakpur
had any application to Ghatwali tenures, which, like Handwa, were independent
of the Kharakpur Zamindari, even though they might be not far off Kharakpur. In
short, it may be said to be well established--and the contrary has not been
urged before us --that Ghatwali tenures held under the Zamindar of Kharakpur
were, by custom judicially recognised, alienable with the assent of the
Zamindar while Ghatwali tenures like Handwa held under the Government direct
were inalienable. In this state of the authorities, the appellant
judgment-debtor on May 31, 1940, filed a fresh petition of objection under
section 47 of the Code claiming that Taluk Kakwara was held under a Government
Ghatwali tenure. The principal question for determination in those execution
proceedings was whether Taluk Kakwara was a Government Ghatwali, as alleged by
the appellant judgment-debtor, or was a Zamindari Ghatwali held under
themselves, as claimed by the Respondents decree-holders.
The learned Subordinate Judge held that Taluk
Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the
objection of the judgment-debtor. The judgment-debtor appealed to the High
Court. The appeal came up for hearing in the first instance before a Bench
consisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the conclusion
that Taluk Kakwara was a Government Ghatwali and was inclined to allow the
appeal. Shearer J. took the view that while Taluk Kakwara was at one time a
Government Ghatwali, it ceased to be so and became and remained a Zamindari
Ghatwali and as such was alienable and was inclined to dismiss the appeal. In
view of this difference of opinion the appeal was referred to Chatterjee J, as
the third Judge 67 Chatterjee J. held that Taluk Kakwara was a Zamindari Ghatwali
land as such alienable and accordingly dismissed the appeal. The
judgment-debtor obtained leave to appeal to the Privy Council. As already
stated, the appeal has come up for hearing before us on transfer from the Privy
Council.
Although the exact origin of the Ghatwali
tenures was generally lost in the confusion and obscurity of the troublous
times which preceded the British rule, the nature of the Ghatwali tenures and
their purposes and incidents have been fully established by a series of decided
cases. The position of the Zamindars in or about 1765, when the East India
Company secured the Dewani of Bengal, Bihar and Orissa, has been described by
the Right Hon'ble T. Pemberton Leigh (who subsequently became Lord Kingsdown)
in his judgment in the case of Raja Lelanund Singh v. Government Bengal(1):
Many of the greater Zamindars within their
respective Zamindaries, were entrusted with rights, and charged with duties,
which properly belonged to the Government. They had authority to collect from
the Ryots a certain portion of the gross produce of the lands. They, in many
cases, imposed taxes and levied toils, and they increased their income by fees,
perquisites, and similar exactions, not wholly unknown to more recent times and
more civilised nations. On the other hand, they were bound to maintain peace
and order, and administer justice within their Zamindaries, and, for that
purpose, they had to keep up Courts of civil and criminal justice, to employ
Kazees, Canoongoes, and Thanahdars, or a police force. But while as against the
Ryots and other inhabitants within their territories, many of these potentates
exercised almost regal authority, they were, as against the Government, little
more than stewards or administrators. Their Zamindaries were granted to them
only from year to year; the amount of their jumma, or yearly payment to
Government, was varied, or might be varied annually; it was an arbitrary sum
fixed by the Government (1) (1855) 6 M.I.A. 101 at p. 108.
68 officers, calculated upon the gross
produce of the Zamindary from all sources, after making an allowance to the
Zamindar for his maintenance, and for the expenses of the collection and of
discharging the public duties with which he was entrusted by the
Government." Further down his Lordship observed "Besides the disorder
which prevailed generally ' 'Besides the disorder which prevailed generally
through the Provinces, particular Districts were exposed to ravages of a
different description. The mountain or hill districts in India were at this
time inhabited by lawless tribes, asserting a wild independence, often of a
different race and different religion from the inhabitants of the plains, who
were frequently subjected to marauding expeditions by their more warlike
neighbours. To prevent these incursions it was necessary to guard and watch the
Ghats, or mountain passes, through which these hostile descents were made; and
the Mahomedan rulers established a tenure called Ghatwali tenure, by which
lands were granted to individuals, often of high rank, at a low rent, or
without rent, on condition of their performing these duties, and protecting and
preserving order in the neighbouring Districts." This description of the
nature and incidents of a Ghatwali tenure was adopted by the High Court Garth
C.J. and McDonell J.) in Leelanund Singh v. Thakoor Munranjan Singh(1) which
was a case between the respective predecessors of the parties before us and
related to this very Taluk Kakwara. Said the learned Chief Justice at p. 255:"And
it is very necessary for our present purpose to bear in mind what was the true
origin and nature of these tenures. They were created by the Mahomedan
Government in early times, as a means of providing a police and military force
to watch and guard the mountain passes from the invasions of the lawless tribes
who inhabited the hill districts. Large grants of land were made in those days
by the Government.
(1) (1877) I.L.R. 3 Cal. 251.
69 often to persons of high rank, at a low
rent, or at no rent at all, upon condition that they should provide and
maintain a sufficient military force, to protect the inhabitants of the plains
from these lawless incursions; and the grantees on their part sub-divided and
re-granted the lands to other tenants (much in the same way as military tenures
were created in England in the feudal age), each of whom, besides paying
generally a small rent, held their lands in consideration of these military
services, and provided (each according to the extent of his holding) a
specified number of armed men to fulfil the requirements of the
Government".
As has been said by Lord Kingsdown in Raja
Lelanund Singh v. The Government of Bengal (supra) at p. 125 "though the
nature and extent of the right of the Ghatwals in the Ghatwali villages may be
doubtful, and probably differed in different districts and in different
families, there clearly was some ancient law or usage by which these lands were
appropriated to reward the services of Ghatwals; services which, although they
would include the performance of duties of police, were quite as much in their
origin of a military as a civil character, and would require the appointment of
a very different class of persons from ordinary police officers".
Accordingly his Lordship found that the office of Ghatwal in the Kharakpur
Zamindari was frequently held' by persons of high rank. In Munrunjan Singh v.
Raja Lelanund(1) which was also a case between the respective predecessors of
the parties before us and related to this very Taluk Kakwara, the High Court at
p. 86 observed :"It appears that there is considerable variety in the
tenures known under the general name of Ghatwali in different parts of the
country. They all agree in this that they are grants of land situated on the
edge of the hilly country, and held on condition of guarding the ghats or
passes.
Generally, there seems to be a small
quit-rent payable to the Zamindar in addition to the service rendered, and with
the view of marking (1) (1865) 3 W.R. 84.
70 the subordination of the tenure. But in
some Zamindaries and putnees these tenures are of a major, in others of a
minor, character. Sometimes the tenure of the great Zamindar himself seems to
have been originally of this character.
More frequently large tenures, consisting of
several whole villages, are held under the Zamindar." Further down their
Lordships said :
"These inferior Ghatwalis seem to be
those in which the Zamindar or ruling power deals direct with the individuals
who do the work, assigning them pieces of land in the established villages. The
larger tenures were more of the nature of semi-military colonies, where a chief
with his followers were settled down in parts of the country so unsafe that it
could not be otherwise occupied." The law relating to Ghatwali tenures has
been dealt with at considerable length by Lord Sumner in Narayan Singh v.
Niranjan Chakravarti (supra). The variety of
conditions of service to be rendered by a Ghatwal was thus summed up by his
Lordship at pp. 80-51 :"In itself 'ghatwal' is a term meaning an office
held by a particular person from time to time, who is bound to the performance
of its duties, with a consideration to be enjoyed in return by the incumbent of
the office. Within this meaning the utmost variety of conditions may exist.
There may be a mere personal contract of employment for wages, which take the
form of the use of land or an actual estate in land, heritable and perpetual,
but conditional upon services certain or services to be demanded. The office
may be public or private, important or the reverse. The Ghatwal, the guard of
the pass may be the bulwark of a whole countryside against invaders; he may be
merely a sentry against petty marauders ;he may be no more than a kind of gamekeeper,
protecting the crops from the ravages of wild animals. Ghatwali duties may be
divided into police duties and quasi-military duties, though both classes have
lost much of their importance, and the 71 latter in any strict form are but
rarely rendered. Again, the duties of the office may be such as demand personal
discharge by the Ghatwal and personal competence for that discharge; they may,
on the other hand, be such as can be discharged vicariously, by the creation of
shikmi tenures and by the appointment and maintenance of a subordinate force,
or they may be such as in their nature only require to be provided for in bulk.
It is plain that where a grant is forthcoming to a man and his heirs as
Ghatwal, or is to be presumed to have been made though it may have since been
lost, personal performance of the ghatwali services is not essential so long as
the grantee is responsible for them and procures them to be rendered: Shib Lal
Singh v. Moorad Khan, (1868) 9 Suth. W.R. 126." Then his Lordship pointed
out that the superior who appointed the Ghatwal might be the ruling power over
the country at large, the landholder responsible by custom for the maintenance
of security and order within his estates, or simply the private person, to whom
the maintenance of watchmen was, in the case of an extensive property,
important enough to require the creation of a regular office. Although personal
service by the employee and personal selection and appointment by the employer
might have been ordinarily essential incidents of the relationship, yet it was
not invariably so as appears from the last quotation as well as from the
following passage in the judgment by Lord Sumner at p. 52 :"On the other
hand, there are great estates, whose proprietors are found holding them or
parts of them upon the terms of providing that ghatwali services shall be
forthcoming, either regularly or when required; services it is impossible for
the proprietor himself to render in his own person, and which become possible
to him and to those to whom he renders them simply by virtue of his possession
of the lands thus granted. In such eases the ghatwali tenure, even if not
originally granted as heritable, easily becomes so, and is commonly found on
the death of an incumbent of the 72 office to descend to some member of his
family, if not necessarily to the senior member. Thus in Kharakpur ghatwals
have a perpetual hereditary tenure at a fixed jama: Munrunjun Singh v. Lelanund
Singh." The requirement of rendering of services by a Ghatwal naturally
gave rise to a further incident of such a tenure, namely, the inalienability of
the Ghatwali lands, for an alienation of the Ghatwali lands might easily
deprive the Ghatwal of the whole of the means provided to enable the services
to be rendered. This consideration peculiarly applied where the superior, by
whom the Ghatwals were appointed and of whom the Ghatwali lands were held. was
the ruling power itself. As has already been stated above, the rigour of this
incident of inalienability had, however, in the case of Kharakpur Zamindari
Ghatwalis, given way to custom recognised as well established in the case of
Kali Petshad v. Anund Roy (supra), which has been repeatedly followed and
applied in India without proof of the custom being required over again.
From what has been stated above, it clearly
follows that Ghatwali tenures originated during the Moghul period, that
although the services included police duties, they were in their origin just as
much of a military as a civil character and that the tenure could be granted by
the ruling power directly to the Ghatwal who was to render the services so as
to establish a direct privity between the ruling power and the Ghatwal or it
could be granted by the Zamindar for the protection of his Zamindari or for.
enabling him to render the police and military services 'to the ruling power
which he was bound to do under the terms of the grant of Zamindari to him. The
question then arises --which of these categories the Ghatwals of Kharakpur come
under.
Mahalat Kharakpur was an extensive estate and
apparently owed allegiance, real or nominal, to the Moghul Emperor.
There is no evidence on record showing on
what terms the Raja of Kharakpur held the estate under the Moghuls and it is
difficult to say, 73 with any amount of certainty, what kind or amount of services,
police or military, he had to render to the then ruling power. It may, however,
be safely stated that, like all other Zamindars, the Raja of Kharakpur had to
preserve internal peace and order by maintaining sufficient Thanas or police
establishments and to protect the tenants and other inhabitants from the
incursions of lawless tribes from the neighbouring hills by providing or
arranging for a sufficient military force. It could not be expected that a big
Zamindar like the Raja of Kharakpur would render the police or military
services personally and consequently it was natural for him to appoint his own
Ghatwals to protect his Zamindari and to render services for him to the ruling
power. As said by Lord Kingsdown in Raja Lelanund Singh v.
The Government of Bengal (supra) at p. 102 it
was well established that long before 1765 the Zamindars of Kharakpur had
created Ghatwali tenures for the purpose of protecting their Zamindaries from
the attacks of mountaineers and other turbulent people in their neighborhood.
Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at p. 68 also
recognised that long before 1765 Ghatwali tenures under the Zamindar of Kharakpur
had been created by the various holders of those lands for their own purposes
and as late as 1770-1785 Mr. Cleveland, who managed the estate during the
minority of Kadir Ali, followed the same policy. In Narayan Singh v. Niranjan
Chakravarti (supra) at p. 50 Lord Sumner said :"In the Sonthai Parganas
there are for practical purposes three classes of Ghatwali tenures: (a)
Government ghatwalis created by the ruling power; (b) Government ghatwalis,
which since their creation and generally at the time of the Permanent
Settlement have been included in a zamindari estate and formed into a unit in
the assessment; and (c) zamindari ghatwalis, created by the zamindar or his
predecessors and alienable with his consent. The second of these classes is
really a branch of the first." The question, then, is--to which class the
Ghatwali tenure of Taluk Kakwara, with which we are concerned 10 74 in this
case, belongs--whether it was a Government Ghatwali or was one of the many
Ghatwali tenures created by the Zamindars of Kharakpur.
Happily, we do not have to speculate. The
problem before us is not to infer the true nature and incidents of the original
grant which could only be collected from the evidence of what was done and left
undone in connection with Taluk Kakwara by the ruling power and its officers.
We have in evidence before us the authentic texts of the two Sanads relating to
the Kakwara Ghatwali and we also have the provisions of the Permanent
Settlement Regulation. The nature and incidents of that tenure must rest upon
the true construction and import of those grants as well as on the manner in
which it was dealt with at the time of the Permanent Settlement.
It will be convenient and useful, at this
stage, to give a very short history of Mahalat Kharakpur and Taluk Kakwara. In
1765 the East India Company secured the Dewani of Bengal, Bihar and Orissa from
the Moghul Emperor. The accession of Dewani was in effect a cession of the
three provinces and the East India Company virtually became the sovereign
ruling power over those territories. At that time one Mozaffar Ali was the Raja
of Mahalat Kharakpur. Taluk Kakwara appertained to Mahalat Kharakpur. In 1766
Raja Mozaffar Ali rose in rebellion against the East India Company. A strong
military force under the command of Captain Browne was sent for quelling the
revolt. Eventually, in 1768 Raja Mozaffar Ali was subdued and imprisoned. The
Raja was deposed and deprived of his estate and the East India Company took
direct charge of Mahalat Kharakpur and managed it through its officers until
the Mahalat was restored to Raja Kadir Ali, the grandson of Raja Mozaffar Ali.
In 1776 Captain Browne, who was then in charge of the Mahalat, granted an
Amalnama or Sanad (Exhibit 1) in respect of 22 villages to two persons Rankoo
Singh and Bhairo Singh at a fixed annual Jama of Rs, 245-12-15. That Sanad was
in the following terms:
75 "Seal of Captain James Browne, head
of jungletari (low forest land). Know ye, the present and future Mutasaddis of
affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda
Sukhwara, Zila Jangal-tari. appertaining to Kharagpur, Sarkar Monghyr, in the
Province of Bihar.
From the beginning of 1184 Fasli, Taluka
Kakwara, pargana aforesaid, is let out in perpetual mukarrari, without any
objection or contention, to Rankoo Singh and Bhairo Singh, ghatwals of the said
Taluka, at a fixed jama of Rs. 245-1215 (rupees two hundred and forty-five,
annas twelve and gandas fifteen) in current coins noted in the endorsement,
consolidated from all sources, including malwajhat, sairwajhat and all grains,
and excluding the perquisites of the zamindari, nankar, chaudhuris and
kanungos, parganati expenses, lands given in charity, e.g., barhmotar, shibotar
and bishunparit lands, aima lands of jagirdars, bargandazes (musketeers),
dhupars (?), mahus (?) etc. It is requisite that they should peacefully
cultivate (torn) and pay the Government (torn), according to the kabuliat, year
after year and crop after crop, into the Government treasury.
They should make such effort as to increase
the cultivation of the said Taluka from day to day. They should hold themselves
responsible for deficient cultivation. They should keep the tenants pleased and
contented with their good treatment and should not oppress any one and make
excessive demands. They should not fix the allowance of the jagirdars and
bargandazes etc., over and above the rent. They should bear this in mind. They
should provide for the protection of the tenants within their jurisdiction and
of the villages of the said Taluka. Whenever the chakars (?)be sent for by the
huzur, the sardar (?) should appear before him with his men.
If at any place, within their boundary
limits, murder, disturbance, dacoity, theft, highway robbery etc., be committed,
and the culprit be traced or be found conspiring advisedly with any one and the
Government work suffer, and proper punishment be meted out after inquiry, they
will be responsible (?) by virtue of their 76 position, and will be dismissed
from their post and will not be reinstated (unintelligible). The amlas of the
zamindars of the said Taluka should on knowing the said istimrari mukarrari
rent to have been fixed, continue to receive the mukarrari rent from year to
year and should not demand even a farthing in excess. They should treat this as
peremptory and act as written herein.
Dated the 25th Shanwal, 17, corresponding to
the 7th Pus Bangla, 1183 Fasli.
Endorsement.
Taluka Kakwara, pargana Danda Sukhwara,
appertaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of
Bihar, is let out in perpetual mukartari, without any objection or contention,
to Rankoo Singh and Bhairo Singh, Ghatwals, at a fixed jama of Rs. 245-12-15
(rupees two hundred and fortyfive, annas twelve and gandas fifteen) in current
coins as specified below, consolidated from all sources, including malwajhat,
sair-wajhat, and all grains, excluding the perquisites of the zamindari,
nankar, Chaudhuris and Kanungos, expenses of the said Taluka, lands given in
charity, (e.g.)barhmotar, shibotar and Bishun-parit lands, jagir lands of
jagirdars, bargandazes, dhupars(?), maimas (?), etc.
Fixed jama.
Rs. 245-12-15 gandas." " Then
followed the specification of 22 Mouzas or villages.
It will be noticed that the grant was made to
Rankoo Singh and Bhairo Singh described as "ghatwals of the said
Taluk" which suggests that those two persons were already Ghatwals.
The duties generally imposed on the grantees
and in particular the duty of providing protection for the tenants and of
appearing before Huzur with his men did not, in the words of Lord Sumner in
Narayan Singh v. Niranjan Chakravarti (supra) at p. 46, "go beyond duties
then ordinarily discharged by Zamindars." There was no stipulation either
in the main body of 77 the grant or in the endorsement at the foot for
maintaining a regular body of a definite number of archers and barkandazes such
as is to be usually found in ordinary Ghatwali grants and indeed such as is in
fact to be found in the subsequent grant of Raja Kadir Ali with respect to this
very Taluk Kakwara. Finally, the admonition at the end of the principal
paragraph to the amlas of the Zamindars of the said Taluk to receive the fixed
mukarrai rent and not to demand even a farthing in excess may well be regarded
as indicating that the Zamindar was really interested in the grant. In the
premises, the observation of the learned Judges of the High Court of Calcutta
in Munrunjun Singh v.
Raja Lelanund (supra) at page 85 that the
Sanad of Captain Browne seemed to them "to be rather a confirmation of an
existing tenure than the creation of a new one" appears to have
considerable force. This view of the matter will be quite consistent with the
subsequent history of the Kakwara Ghatwali which will be presently related.
It is, however, pointed out that at the date
of this Sanad there was in fact no Raja of Karakpur and that as the Mahalat was
being administered and managed by Captain Browne on behalf of the East India
Company the grant made by him must be taken as creating a Government Ghatwali
tenure. The Seal at the top of the Sanad is said to indicate that in granting
the Sanad in his capacity as Sardar of the Jungle Terai Captain Browne was
acting for and on behalf of the East India Company. The Sanad was addressed to
the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars
and Ghatwals of Pargana Danda Sukhwara and it is urged that if Captain Browne
had been acting on behalf of the Zamindar of Kharakpur, addressing the Sanad to
the Zamindars would have been wholly inappropriate. The fact that the grant was
to commence from the beginning of 1184 Fasli also militates against its being
only a confirmation of a pre-existing Ghatwali tenure. The direction to pay
according to the Kabuliat, year after year, crop after crop, into the
Government treasury clearly suggests 78 that the Sanad created a Government
Ghatwali tenure. In the Moghul period there was no fixity of the jama and the
grants were made annually and the jamas were liable to be varied.
The provision of a fixed annual jama in this
Sanad cannot, therefore, it is argued, be regarded as a confirmation of an
existing grant on a fixed jama. Taking all these matters into consideration
Shearer and Chatterjee JJ. came to the conclusion that under Captain Browne's
Sanad of 1777 Taluk Kakwara became a Government Ghatwall. This line of
reasoning is not without force or cogency although it may not necessarily be
conclusive, for Captain Browne, undoubtedly acting for the East India Company,
might well have issued the Sanad during the period of interregnum. on behalf or
in the interest of whoever might eventually become the Zamindar of Kakwara. If
the matter rested only with this Sanad and nothing further had happened then
perhaps it might have been said with some plausibility that a new tenure was
created by the ruling power by this Sanad, but the matter does not in fact rest
with only Captain Browne's Sanad, and we have to see how this Taluk Kakwara has
been subsequently dealt with and what effect the subsequent events have on the
status and rights of the Ghatwal of this Taluk.
It appears that in 1780 the East India
Company restored Mahalat Kharakpur to Kadir Ali, the grandson of the deposed
Raja Mozaffar Ali. Although the formal order of the Governor-General came in
1781, the Mahalat was actually restored to Raja Kadir Ali in 1780. At that time
Raja Kadir Ali was only a boy of five or six years of age and Mr. Cleveland,
the Collector of Bhagalpur, managed Mahalat Kharakpur for and on behalf of the
minor Raja Kadir Ali. On January 17, 1780, a fresh Sanad (Exhibit 1 (a)) was
granted in the name and under the Seal of Raja Kadir All to the same two persons,
Rankoo Singh and Bhairo Singh, in the following terms :-"(Seat of Raja
Qadir Ali, under Emperor Shah Alam, the Victorious--1193).
79 Know ye, the present and future mutasaddis
of affairs and the gumashtas holding the posts of Chaudhuris and Kanungoes of
Pargana Danda Sukhwara appertaining to mahals Kharagpur, Sarkar Monghyr, in the
Province of Bihar.
The Ghatwali service tenure of Taluka Kakwar
appertaining to the said pargana is held, under a Sanad, by Bhairo Singh and
Rankoo Singh, with 177 musketeers and archers including sardars, on the
condition of allegiance and loyalty to the Sarkar. Of late also, (the said
tenure) being upheld and kept intact as usual, according to the endorsement, is
assigned and granted with effect from the beginning of the Kharif season of
1189 Fasli Rajwara corresponding to 1188 Fasli Mughlana. They should discharge
the duties and obligations with honesty and fidelity and keep the tenants
pleased and contented with their good treatment, and should watch the ghats and
chaukis very carefully and cautiously, so that no thief and night robber may
come around and about them. If, God forbid, the properties of any one be stolen
or plundered and cattle be concealed or murder be commited, they should trace
the thieves and night robbers with the properties intact, restore the
properties to the owner and produce the party of the mischief mongers before
the Huzur and prove the murder. In case they fail to find out the thieves and
to prove the murder and the concealment (theft) of cattle, they should hold
themselves responsible therefor.
They should continue to pay the quit-rent to
the Sarkar as usual. When summoned, they should appear before the Huzur with
the body of men. It is desired that you should consider them as permanent
Ghatwals of that place and maintain them in their possessions and you should
not fail to give 'them sound advice so as to ensure by all means the advantage
of the Sarkar and the well-being of the tenants. Treat this as peremptory and
act accordingly.
Dated, the 17th seventh (sic) day of the holy
month of Muharram of year 22, corresponding to 194 A.H.
80 Endorsement The Ghatwali service tenure of
taluka Kakwara. Pargana Danda Sukhwara, is granted as before to Rankoo Singh
and Bhairo Singh with 172 Musketeers and archers including sardars with effect
from the beginning of the karif season of 1189 Fasli, Rajwara, corresponding to
1189 Fasli Mughlana, on the condition of allegiance and loyalty to the Sarkar.
Above-named persons (sic)--7 172 Musketeers
and Archers--165 Rs.a.d. 245-12-1 5 Fixed perpetual quit rent ...
2150-15 Rent ...
Zamindari 30-120 Rs. a. d. Rs. a.d. By Bhairo
Singh 17835 By Rankoo Singh ...
67-9-10) 155-14-15 Rent ..
59-20 Rent ...
Zamindari ... 224-10 Zamindari ...
8-7-10."' Then followed a list of 16
Mauzas given in Jagir. If Taluk Kakwara was, in its origin, a Zamindari
Ghatwali created by the Zamindar of Kharakpur and if Captain Browne's Sanad
only confirmed that existing tenure during the interregnum when he was in
charge of the entire Mahalat of Kharakpur and managed it on behalf of the East India
Company but in the interest of whoever eventually became the Raja of Kharakpur,
then on the restoration of the Zamindari to Raja Kadir Ali he would naturally
clarify the position and status of the Ghatwals under him by issuing fresh
Sanads in their favour. In this view of the matter Raja Kadir Ali's Sanad only
regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure
and specified the terms more clearly and explicitly.
It is, however, contended on behalf of the
appellant that the Sanad of Captain Browne created a Government Ghatwali tenure
and Raja Kadir Ali's Sanad was nothing more than a confirmation of that
Government Ghatwali tenure. Reliance is placed on the inscription in the seal
at the top which refers to Emperor Shah Alam the Victorious and it is contended
that this clearly indicates that this Sanad was also 81 intended to be a
Government grant. We are unable to accept this contention as sound. The
reference to Emperor Shah Alam the Victorious might be nothing more than a mere
formal recognition of a titular figurehead. The statement that the Ghatwali
service tenure of Taluk Kakwara was "held under a Sanad by Bhairo Singh
and Rankoo Singh with 172 Musketeers and Archers" etc. may well be taken
as referring to an earlier Sanad which specified the number of Musketeers and
Archers and need not necessarily refer to Captain Browne's Sanad of 1777 in
which there was, as has been pointed out, no specification of any number of
Musketeers and Archers.
Under this Sanad the grantees' tenure
commenced from the beginning of the Kharif season of 1189 Fasli, Rajwara,
corresponding to 1188 Fasli Mughlana. This date of commencement of the tenure
is different from the date of commencement mentioned in Captain Browne's Sanad.
In Captain Browne's Sanad the fixed Jama of Rs. 245-12-15 was exclusive of
Zamindari Rasoom whereas under Raja Kadir Ali's Sanad the fixed perpetual quit
rent of Rs. 245-12-15 was inclusive of Zamindari Rasoom, the rent being Rs.
215-0-15 and Zamindari Rasoom being Rs. 30-12-0. What is still more significant
is the apportionment of the quit rent between the two grantees which is to be
found towards the end of the Sanad. Such an apportionment was wholly
inappropriate in the case of a merely confirmatory grant. Again, this grant
comprised 16 Mauzas whereas Captain Browne's Sanad covered 22 Mauzas.
Even the names of many of the 16 Mauzas are
not to be found in the specification of Mauzas at the end of Captain Browne's
Sanad. The further significant fact is that in the 16 Mauzas set out at the
foot of Raja Kadir Ali's Sanad the two grantees were shown to have different
and distinct shares in the different Mauzas. In some cases, even an entire
Mauza was allotted exclusively to one or the other.
Further, if Captain Browne's Sanad created a
Government Ghatwali tenure, it is not intelligible why Raja Kadir Ali should be
called upon to confirm the grant with which he was not directly or indirectly
11 82 concerned. Again, it is well known that at this time 98 of the Ghatwals of
Kharakpur took their Sanads from Raja Kadir Ali while only three big Ghatwals,
namely, those of Lachmipur, Handwa and Chandan Katoria took their Sanads not
from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne. This
distinction can only be explained on the footing that these 98 Ghatwalis
including Taluk Kakwara were in reality Zamindari Ghatwalis while the three
bigger Ghatwalis were treated as Government Ghatwalis. The fact that Mr.
Cleveland, the Collector of Bhagalpur, was at this time in charge and
management of Mahalat Kharakpur, that these 98 Sanads were granted in the name
of Kadir Ali during the period of Mr. Cleveland's management and the fact that
ever since 1780 nobody on behalf of the Government has questioned the propriety
of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish
that Raja Kadir Ali's Sanads really regularised the position and status of
these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on
which the tenures were to be thenceforth held.
On the other hand, even if it be accepted
that Captain Browne's Sanad created a Government Ghatwali tenure then, in the
language of Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at p.
54 it might well be said that Raja Kadir Ali's Sanad issued during the time Mr.
Cleveland, the Collector of Bhagalpur, was managing the Mahalat of Kharakpur,
and never objected to or questioned at any time thereafter by the Government
"amounted to a release by the Government of the Ghatwali services or to a
grant to a third party of the right to receive them and of the right to appoint
the Ghatwali and, therefore, the original Government Ghatwali tenure came to an
end and a Zamindari Ghatwali tenure took its place.
The matter does not even rest' with Raja
Kadir Ali's Sanad. In 1789 or 1790 there was a decennial settlement of Mahalat
Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the
permanent Settlement Regulation I of 1793. As Lord 83 Kingsdown pointed out in
Raja Lelanund Singh v. The Government of Bengal (supra) at p. 114, it was
beyond dispute and indeed fairly admitted that the Ghatwali lands formed part
of the Zamindari and were included in and covered by the assessment of the
Zamindari. This was recognised by the High Court in Munrunjun Singh v. Raja
Lelanund (supra) when they said that there was no doubt that the tenure was, at
the Permanent Settlement, included in the Zamindari of Kharakpur and that the
Jama was payable to the Zamindar. On appeal, their Lordships of the Privy
Council also pointed out that the claim of the Government to resume and
reassess the Ghatwali lands was dismissed upon the ground that the Taluk had
been assessed to revenue and was a portion of the Mal land of the Zamindar. In
Leelanund Singh v. Thakoor Munrunjun Singh (supra) Garth C. J. at p. 257 said
that there could be no doubt that the time of the Permanent Settlement the
Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of
that Taluk were "dependent Talookdars" of that Zamindari. The holders
of Taluk Kakwara were certainly not independent Talookdars because the Zamindar
had the beneficial interest in the tenure and these tenures were never
registered as independent Taluks. Lord Sumner described the attempt of Raja
LelanundSingh to recover possession of Taluk Kakwara as an attempt on his part
to resume "his Shikmi Ghatwali lands." Further, Captain Browne in his
book "India Tracts" published in 1788 had shown only Luchmipur,
Handwa and Chandan Katoria, all appertaining to Purgunnah Kharakpur, as three
Ghatwalis under the Jungle Terry Collector. Kakwara was not shown in that list.
On February 24, 1860, a list (Exhibit D) of Ghatwali Mahals appertaining to
Kharakpur was prepared by the Government showing 98 Ghatwali tenures
appertaining to Mahal Kharakpur.
Kakwara is item 73 in that list. In 1863, at
the time of the composition made between the Government and the Raja of
Kharakpur.. another list of Ghatwali Mahals appertaining to Kharakpur was
prepared by the 84 Government and Kakwara is item No. 40 in that list. In
neither of these lists did Lachmipur, Handwa and Chandan Katoria, which were
under the Collector, find a place.
Again, the letters from the Collector of
Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord
Kingsdown's judgment in Raja Lelanund Singh v. The Government of Bengal (supra)
clearly show that the Government recognised that the right of appointment and
dismissal of a Ghatwal rested with the Raja of Kharakpur. As Lord Kingsdown
pointed out in Raja Lelanund Singh v. The Government of Bengal (supra) at p.
114, the Zamindars derived some benefit in money and also had the benefit of
the services of the Ghatwals and enjoyed the valuable right of appointing the
individuals, who, with the lands, were to take upon themselves the duties of
the office. If the Ghatwali tenures, created by the Sanad of Raja Kadir Ali
were Government Ghatwali tenures, it is not intelligible how the Zamindar would
have the right to appoint or dismiss the Ghatwal. On a consideration of the
facts and the circumstances noted above, we are of opinion that Taluk Kakwara
was, in its origin, a Zamindari Ghatwali tenure and continued to be so and was
in fact treated as such down to the present time and further that even if by
virtue of Captain Browne's Sanad it became a Government Ghatwali tenure, then
under the Sanad of Raja Kadir Ali, or, at any rate, after the Permanent Settlement,
Taluk Kakwara became a Zamindari Ghatwali and as such alienable with the
consent of the Zamindar according to the custom of Kharakpur judicially
recognised.
It is quite clear to us that the conclusions
arrived at by us are in no way inconsistent with the judicial decisions which
have been cited before us. In Raja Lelanund Singh v. The Government of Bengal
(supra) the Government sought to establish their right to resume and assess
with revenue Ghatwali lands appertaining to the Zamindari of Kharakpur.
The Government claimed the right under
Regulation I of 1793, section 8, clause (4), and contended that before the 85
Permanent Settlement the Zamindar used to appropriate the produce of the
Ghatwali lands in maintaining police establishments and that, as by that
Regulation the Government undertook the charge of maintaining the police, the
lands become liable to resumption in addition to the jama assessed on the
Zamindari and that the lama assessed on the Zamindari of Kharakpur did not
include any sum assessed in respect of the produce appropriated for the
maintenance of the police establishments. There were eleven suits against 11
Ghatwals. The Raja of Kharakpur was not originally made a party to the
proceedings but he was eventually added as a party on his own application. In
1885 a final judgment in favour of the Government was pronounced by the Special
Commissioner.
The Raja of Kharakpur appealed. The
Government claim was dismissed on the ground, first, that the Ghatwali lands
were part of the Zamindari of Kharakpur and were included in the Permanent
Settlement of the Zamindari and covered by the jama assessed on that Zamindari
and, second, that the lands of Ghatwali tenure were not liable to resumption
under clause (4), section 8, Bengal Regulation I of 1793 as included in
allowance made to Zamindars for thana or police establishments. There is not
only nothing in the judgment of Lord Kingsdown which militates in any way
against the view that the Ghatwali tenures appertaining to the Mahalat of
Kharakpur were Zamindari Ghatwali. On the other hand, the observations of his
Lordship, some of which have been quoted above, clearly indicate that they were
of the nature of Zamindari Ghatwali over which the Zamindar had the right of
appointment and dismissal and that they formed part of the Zamindari and were
included in and covered by the assessment of the Zamindari.
Munrunjan Singh v. Raja Lelanund Singh
(supra) was a suit by the Zamindar of Kharakpur claiming possession of Taluk
Kakwara on the allegation that the lands were held for police services, that
the appointment and dismissal of Ghatwals rested with him, that he 86 had
compounded with the Government for a money payment in lieu of police services
which he was bound to render through the Ghatwals and that those services being
no longer required, he was entitled to resume the lands. The defences were that
the Ghatwals were not lessees liable to ejectment but held a permanent tenure,
that it existed long before the Permanent Settlement being held at a fixed jama
mentioned in the Sanads derived directly from the representatives of the
British Government and in compensation for services in guarding the mountainous
country and the passes which service they were always ready and willing to
perform. If Taluk Kakwara was a Government Ghatwall, then the Zamindar would
have had no locus standi to maintain the suit for possession and the suit
should have been dismissed on that short ground, but no such point was
seriously taken and the case was fought out and decided on the footing that
Taluk Kakwara was a Zamindari Ghatwali. The. principal Sudder Amin having
decreed the suit, the defendant appealed. The High Court held that the contract
between the Raja of Kharakpur and the Government without authority of the
legislature in no way affected the statute and the rights of the Ghatwal and
the tenure in dispute was not a mere grant of land in payment of service to be
rendered during pleasure but was a perpetual hereditary holding on a fixed
jama, leaving a beneficial interest in the Ghatwal with a condition of service
annexed.
That decision was upheld on appeal by the
Privy Council.
The next case concerning this very Taluk
Kakwara was Leelanund Singh v. Thakoor Munrunjun Singh (supra) which was a suit
by the Zamindar of Kharakpur against the Ghatwal of Kakwara for a declaration
of his right to enhance the rent at a rate equivalent to the Ghatwali services
which had been rendered unnecessary. Again, if Taluk Kakwara was a Government
Ghatwali, the Raja of Kharakpur would have no locus standi to claim an
enhancement of rent in lieu of the Ghatwali services This claim of the Raja of
Kharakpur was also dismissed. There are positive observations 87 in this case
which indicate that Taluk Kakwara was a "dependent" Taluk or, as Lord
Sumner called it was a "Shikmi" Taluk.
Learned counsel for the appellant has relied
very strongly on two cases, namely, Narayan Singh v. Niranjan Chakravarti
(supra) and Rani Songbari Kumari v. Raja Kirtyanand Singh(1). Both the cases
related to the Ghatwali of Taluk Handwa. The endeavour of learned counsel was
to show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali
relating to Taluk Kakwara were in their effect the same as the Sanad of Captain
Browne and the confirmatory Parwang of Mr. Dickenson, the Collector of
Bhagalpur, relating to Taluk Handwa. In Narayan Singh v. Niranjan Chakravarti
the Subordinate Judge held that the tenure of Handwa was not Ghatwali tenure at
all. The High Court, on appeal, held that the parganah was.held. as.a Moghul
Ghatwali tenure before cession but that it became a Government Ghatwali and
that nothing had been done to alter that position. They were, however, of
opinion that Raja Udit Narayan Singh did not hold it as Ghatwal and that the
heirs of Udit Narayan Singh could not impugn the validity of the mortgage created
by him. This decision of the High Court was reversed by the Privy Council. In
Rani Sonabati Kumari v. Raja Kirtyanand Singh(1) Mr. Justice Fazl Ali
elaborately discussed the law relating to Ghatwali tenures. Learned counsel for
the appellant before us has relied on several passages from the judgment of
Lord Sumner and from that of Mr. Justice Fazl Ali. These two decisions must be
taken as based on the construction of the relevant Sanads, namely, the Sanad of
Captain Browne and the Parwang of Mr. Dickenson and the observations to be
found in the judgments in those two cases must be read in the light of that
construction. The position of Taluk Kakwara appears to us to be entirely
different from that of Taluk Handwa. Mr. Justice Shearer in his judgment refers
to five points of distinction between the position of the two Ghatwals,
namely---(1) (1935) I.L.R. 14 Patna 70.
88 (1) The Ghatwals of Handwa never paid any
Rasoom on the amount of the land revenue assessed on the lands of Raja of
Kharakpur;
(2) The Ghatwal of Handwa formerly used to
pay the quit rent directly into the Government treasury;
(3) In more than one list of the Ghatwali
tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur, Handwa
was not to be found;
(4) After the restoration of Kharakpur Raj,
the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali
obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson; and (5)
the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence
of a vacancy in the office was negatived by the Courts.
Likewise, Chatterjee J. in his judgment also
points out the essential differences in the status of the two Ghatwals.
The language used in the Sanad relating to
Taluk Handwa is somewhat different. There is no question of payment of quit
rent to the Zamindar of Kharakpur. Although Handwa was included in the
Zamindari of Kharakpur, it was only done so in a geographical sense and for
fiscal purposes. The annual jama of Handwa was never treated as a part of the
Mal assets of the Raja of Kharakpuron which revenue was assessed on him. On the
contrary, Handwa was assessed as a separate unit and the assessment was made
pay.able by Handwa to the Government through the Rala of Kharakpur.. The Raja
of Kharakpur has no beneficial interest either in money or by way of services
or any power of appointment or dismissal over the Ghatwali of Handwa. Learned
counsel for the appellant has relied on several passages in the judgment of
Lord Sumner but those passages are susceptible of a meaning.
which is consistent with the conclusions we
have arrived at on a construction of the two Sanads relating to Taluk Kakwara.
It is also to be noted that the appellant judgmentdebtor himself mortgaged this
very Taluk Kakwara with the Raja of 89 Kharakpur on the allegation that Taluk
Kakwara was alienable with the consent of the Zamindar.
In our judgment the final conclusions arrived
at by Mr. Justice Shearer and Mr. Justice Chatterjee are clearly right and this
appeal must be dismissed with costs.
Appeal dismissed.
Agent for the appellant: 1. N. Shroff.
Agent for the respondents: S.P. Verma.
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