Raja Rajinder Chand Vs. Sukhi [1956] INSC
60 (23 October 1956)
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA DAS, S.K.
CITATION: 1957 AIR 286 1956 SCR 889
ACT:
Right to Royal trees-Conquest of
territory-Grant of Jagir by conqueror-Title to trees within Jagir-Rights of the
Jagirdar-Grant-Construction-Entries in Wajib-ul-arz-Scope and legal 7
effect-Ala malik and Adna malik, Meaning ofPunjab Land-Revenue Act, 1887
(Punjab XVII of 1887), ss. 31, 44.
HEADNOTE:
The appellant as the proprietor of Nada-un
Jagir sued to establish his title to chil (pine) trees standing on lands within
the Jagir but belonging to the respondents, on the ground that the trees
belonged to him as ala malik (superior landlords and not to the respondents who
were only adna maliks (inferior landlords). The Jagir originally formed part of
the territory belonging to the rulers of Kangra who were Sovereigns entitled to
the chil trees. In 1827. 28 Maharaja Ranjit Singh conquered the territory and
granted Nadaun as Jagir to Raja Jodhbir Chand who was the illegitimate son of
Raja Sansar Chand, the last independent ruler of Kangra. In 1846 as a result of
the first Sikh War the territory came under the dominion of the British,. who
granted a Sanad in favour of Raja Jodhbir Chand in recognition of his services.
After the second Sikh War, the British granted a fresh Sanad in respect of the
Jagir of Nadaun in 1848. Subsequent to the grant, there were settlements in
1892-93 (O'Brien's Settlement), 1899-1900 (Anderson's Settlement) and 1910-1915
(Settlement of Messrs Middleton and Shuttleworth), and there were some entries
in the Wajib-ul-arz supporting the title of the Raja to the chil trees. The
appellant who is a direct lineal descendant of Raja Jodhbir Chand claimed title
to the trees, firstly, as the representative of the independent Kangra rulers,
secondly, on the basis of the grant given by the British Government and,
thirdly,on the strength of the entries in the Wajib-ul-arz.
Held:(1) The Sovereign right of the independent
Kangra rulers Lo chil trees passed by conquest to the Sikh rulers and
subsequently to the British; Raja Jodhbir Chand was only a Jagirdar under the
Sikhs and the British, and the appellant could not therefore lay claim to the
chil trees on the basis of the Sovereign right of the in. dependent rulers.
(2)The grant of 1848 on its true construction
was primarily an assignment of land revenue and whatever other rights might
have been included, the right to all chil trees on the proprietary and cultivated
lands of the respondents was not within the grant.
890 It is well settled that the general rule
is that grants made by the Sovereign are to be construed most favourably for
the Sovereign; but if the intention is obvious, a fair and liberal interpretation
must be given to the grant to enable it to take effect, and the operative part,
if plainly expressed, must take effect notwithstanding qualifications in the
recitals. In cases where the grant is for valuable consideration it is
construed in favour of the grantee, for the honour of the Sovereign, and where
two constructions are possible, one valid and the other void, that which is
valid ought to be preferred, for, the honour of the Sovereign ought to be more
regarded than the Sovereign's profit.
(3)Wajib-ul-arz or village administration
paper is a record of existing rights not expressly provided for by law and of
customs and usage regarding the rights and liabilities in the estate, and
though under s. 44 of the Punjab LandRevenue Act, 1887, it is presumed to be
true, it is not to be used for the creation of new rights and liabilities.
Entries in the wajib-ul-arz with regard to
the right of the Raja in respect of chil trees standing on the cultivated and
proprietary lands of the adna-maliks, did not show any existing custom or
usage, of the village, the right being a Sovereign right, and the appellant
could not rely on the said entries as evidence of a grant or surrender or
relinquishment of a Sovereign right by Government in his favour.
The expressions "ala malik" and
"adna malik" explained in the context of the Settlement reports
relating to Nadaun Jagir.
Venkata Narasimha Appa Bow Bahadur v. Rajah
Narayya Appa Bow Bahadur ([1879] L.R. 7 I.A. 38), Dakas Khan v. Ghulam Kasim
Khan (A.I.R. 1918 P.C. 4) and Gurbakhsh Singh v. Mst.
Partapo ([1921] I.L.R. 2 Lah. 346), referred
to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 196 to 201 of 1953.
Appeals from the judgment and decrees of the
Punjab High Court dated December 30, 1949, in Civil Regular Appeals Nos.
1567, 1568, 1569, 1570, 1573 an& 1574 of
1942 arising out of the decrees dated July 31, 1942, of the Court of the
District Judge, Hoshiarpur in Appeals Nos. 104/35 of 194142,101/32 of 1941,
103/34 -of 1941/42) 15/73 of 1941, 102/33 of 1941/42 and 120 of 1941 arising
'out of the decrees dated July 24, 1941, of the Court of Subordinate Judge, 4th
Class, Kangra in Suits Nos. 544, 548, 545, 547, 546 and 549 of 1940.
Bang Beharilal and K. R. Chaudhury, for the
appellant.
891 Ganpat Rai, for the respondent.
S.M. Sikri, Advocate-General for Punjab,
Jindra Lal and R. H. Dhebar, for the Intervener (State of Punjab).
1956. October 23. The Judgment of the Court
was delivered by S. K. DAS J.-These are six appeals by the plaintiff Raja
Rajinder Chand, the superior landlord (alamalik) of Nadaun Jagir in the
district of Kangra. He brought six suits in the Court of the Subordinate Judge
of Kangra for a declaration that he was the owner of all pine (chil-pinus
longifolia) trees standing on the lands of the defendants within the said Jagir
and for a permanent injunction restraining the latter from interfering with his
rights of ownership and extraction of resin from the said trees. He also
claimed specified sums as damages for the loss caused to him from the tapping
of pine trees by different defendants from March 24, 1940, up to the date when
the suits were brought. The defendants, who are the adnamaliks (inferior
landlords), pleaded that they were the owners in possession of the lands on
which the trees stood, that the trees were their property, and that the
plaintiff had no right to the trees nor had he ever exercised any right of
possession over them.
Three questions arose for decision on the
pleadings of the parties. The first question was-whether all pine trees
standing on the lands in suit were the property of the plaintiff, i.e., the
present appellant. The second question was one of limitation, and the third
question related to the quantum of damages claimed by the appellant.
The learned Subordinate Judge, who dealt with
the suits in the first instance, held that the present appellant had failed to
prove his ownership of the trees. He further held that the suits were barred by
time. On the question of damages, he held that if the appellant's claim to ownership
of the trees were established, some of the defendants in four of the suits
would be liable for small amounts of damages. In view, how892 ever, of his
findings on the questions of ownership and limitation, lie dismissed the suits.
Raja Rajinder Chand then preferred appeals from the judgment and decrees of the
learned Subordinate Judge, and the appeals were heard by the learned District
Judge of Hoshiarpur. The latter reversed the finding of the ,learned
Subordinate Judge on the question of ownership and held that the present
appellant had established his right to the trees in question. He also reversed
the finding of the learned Subordinate Judge on the question of limitation, but
accepted his finding as to damages. Accordingly, he allowed the appeals, set
aside the judgment and decrees of the learned Subordinate Judge, and gave the
appellant the declaration and order of injunction he had asked for, as also
damages in four of the suits as assessed by the learned Subordinate Judge. The
defendants then preferred second appeals to the Punjab High Court. On the main
question as to whether the present appellant had been able to establish his
right to the trees, the learned Judges of the High Court differed from the
learned District Judge and, agreeing with the learned Subordinate Judge, held
that the present appellant bad not been able to establish his right to the
trees. On the question of limitation, however, they agreed with the learned
District Judge. In view of their finding that the appellant bad failed to
establish his right to the trees, the appeals were allowed and the suits
brought by the appellant were dismissed. The High Court gave a certificate that
the cases fulfilled the requirements of sections 109(c) and 110 of the Code of
Civil Procedure. These six appeals have come to this Court on that certificate.
We have heard these appeals together, as the questions which arise are the
same. The present judgment will govern all the six appeals.
The short but important question which arises
in these appeals is whether the present appellant has been able to establish
his right to all pine (chil) trees standing on the suit lands of the
defendants. The question is of some importance, as it affects the rights of ala
and adna maliks in Nadaun Jagir. The respondents have not contested before us
the correctness of the finding of two of the Courts below that the suits were
not barred by time; therefore, the question of limitation is no longer a live
question and need not be further referred to in this judgment.
Though the main question which arises in
these six appeals is a short one, a satisfactory answer thereto requires an
examination of the history of the creation of Nadaun Jagir, of the land revenue
and revisional settlements made of the said Jagir from time to time, and of the
various entries made in the record-of-rights prepared in the course of those
settlements. Before we advert to that history, it is necessary to indicate here
the nature of the claim made by the present appellant. The plaints of the six
suits were very brief and did not give sufficient particulars of the claim made
by the appellant. We may take the plaint in Suit No. 544 of 1940 by way of an
example; in para 1 it was stated that the land in question in that suit was in
tappa Badhog and the appellant was the superior landlord thereof;
then came para 2 which. said"The land is
situate in Nadaun Jagir. All the pine trees standing on the aforesaid land
belong to the plaintiff. He alone enjoys benefit of those trees. This has
always been the practice throughout".
In a later statement of replication. dated
October 26, 1940, the plaintiff-appellant gave some more particulars of his
claim. The learned Subordinate Judge, who tried the suits in the first
instance, observed that the present appellant based his claim to ownership of
the trees on three main grounds: first, on the ground that the land itself on
which the trees stood belonged formerly to the ancestors of the present
appellant (namely, the independent rulers of Kangra) and they gave the land to
the ancestors of the adna maliks but retained their right of ownership in all
pine trees;
secondly, after the conquest of Kangra by the
British, the rights of ownership in the pine trees belonged to the British
Government and the rights were assigned to Raja Jodhbir Chand, the first
grantee of Nadaun Jagir; and thirdly, the right of the appellant in the 894
trees had been "vouchsafed" by the entries made in the Wajib-ul-arz
and recognised in several judicial decisions.
The Courts below considered the claim of the
appellant on the aforesaid three grounds, and we propose to consider these
grounds in the order in which we have stated them.
It is now necessary to advert to the history
of the creation of Nadaun Jagir so far as it is relevant for considering the
claim of the appellant on the first two grounds.
Admittedly, the suit lands lie in Badhog and
Jasai tappas comprised within the Jagir of Nadaun in the district of Kangra.
The last independent ruler of Kangra was Raja Sansar Chand who died in the year
1824. Raja Sansar Chand was a Katoch Rajput and had children from two women;
one of them, who was a Katoch lady, was his properly married wife and Raja
Sansar Chand bad a son by her, named Raja Anirudh Chand. The other woman was of
the Gaddi tribe and by her Raja Sansar Chand had a son, named Raja Jodhbir
Chand. The great antiquity of the Katoch royal line is undoubted, and the
history of the Kangra State from the earliest times right up to its conquest by
the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District
Gazetteer (1924-25) at pp. 52 to 76. We are not concerned with that history
prior to the time of Raja Sansar Chand. The Gazetteer states (p. 75) that Raja
Sansar Chand was for 20 years the "lord paramount of the hills and even a
formidable rival to Ranjit Singh himself; but his aggressive nature led him on
in his bold designs and be fell at last a victim to his own violence".
With him the glory of the Katoch line passed away and what remained to his son
Anirudh Chand was little more than a name. Anirudh Chand was summoned several
times to the Sikh camp and on the third occasion of his visit to thatcamp, be
was met by a very unacceptable dein and Raja Sansar Chand had left two
daughters, and Raja Dhian Singh of Jamun, one of the principal officers of
Maharaja Ranjit Singh, asked one of the daughters to be given in marriage to
his son, Hira Singh. Anirudh Chand was afraid to refuse, though 895 in reality
he regarded the alliance as an insult to his family honour; because by
immemorial custom a Katoch Raja's daughter may not marry any one of lower rank
than her father, i.e., a Raja or an heirapparent. Anirudh Chand was a Raja in
his own right and the descendant of a long line of kings, while Dhian Singh was
a Raja only by favour of his master. Anirudh Chand prevaricated for some time;
but he was determined to sacrifice everything rather than compromise the honour
of his ancient line. He secretly sent away his family and property across the
Sutlej and on hearing that Maharaja Ranjit Singh had started from Lahore for
Nadaun, he fled into British territory. Maharaja Ranjit Singh came to Nadaun,
and Jodhbir Chand gave his two sisters to the Maharaja. Jodhbir Chand was then
created a Raja, with Nadaun and the surrounding country as his Jagir. Mian
Fateh Chand, younger brother of Raja Sansar Chand, offered his granddaughter to
Raja Hira Singh. He was also rewarded with the gift of a Jagir known as the
Rajgiri Jagir and received the rest of the State on lease on favourable terms.
His son, however, failed to pay the amount
agreed upon. The State was then annexed to the Sikh kingdom, and only the
Rajgiri Jagir was reserved for the royal family. Thus by 1827-28 Kangra had
ceased to be an independent principality and was to all intents and purposes
annexed to the Sikh kingdom, the son of Mian Fateh Chand and Raja Jodhbir Chand
occupying merely the position of Jagirdars tinder the Sikhs, The present
appellant, Raja Rajinder Chand, is a direct lineal descendant of Raja Jodhbir
Chand, being fourth in the line of descent.
Then followed the Sikh wars and the
establishment of British rule in Kangra. The first Sikh war ended in March
1846, in the occupation of Lahore and the cession to the British Government of
the Jullunder Doaba and the hills between the Sutlej and the Ravi. In 1848, the
second Sikh war began and Raja Parmudh Chand, one of the sons of Raja Anirudh
Chand, raised the standard of rebellion in Kangra. The rebellion however
failed. Meanwhile, Jodhbir Chand 896 remained conspicuous for his fidelity to
the British Government; both in the Sikh war and in the Katoch insurrection he
did good service to the British. He obtained a Sanad from the British
Government in 1846.. A copy of that Sanad was not available, but a copy of a
Sanad granted on October 11, 1848, which renewed and clarified the earlier
Sanad, was produced and exhibited on behalf of the present appellant. We shall
have occasion to refer to this Sanad in detail at a later stage.
Having thus indicated in brief the earlier
history with regard to the creation of Nadaun Jagir in favour of Raja Jodhbir
Chand, we now proceed to consider the first two grounds of the claim of the
appellant. The learned Judges of the High Court held, in agreement with the
learned Subordinate Judge, that the present appellant could not claim the
sovereign rights of Raja Sansar Chand who was an independent ruler of Kangra.
For this finding they gave two reasons; firstly, Raja Jodhbir Chand was an
illegitimate son of Raja Sansar Chand and could not succeed to the rights of
the Raja; secondly, whatever rights Raja Sansar Chand had as an independent
ruler of Kangra came to an end (so far as his descendants were concerned) with
the annexation of his territory by the Sikhs, and Raja Jodhbir Chand merely got
an assignment of land revenue to the tune of Rs. 30,000 by the grant. of Nadaun
Jagir by Maharaja Ranjit Singh. We accept these as good and convincing reasons
for discountenancing the claim of the appellant that the sovereign rights of
the independent rulers of Kangra in respect of all royal trees (including pine
trees) within Nadaun Jagir had come down to him. For the purposes of these
cases we may accept the position, in support of which there is some historical
material, that Raja Sansar Chand had a right to all royal trees including pine
trees within his territory; but it is clear to us that neither Raja Jodhbir
Chand nor the present appellant succeeded to the rights of the independent
rulers of Kangra. Raja Jodhbir Chand was a grantee under a grant first made by
Maharaja Ranjit Singh and then by the British Gov897 ernment. The precise terms
of the grant made by Maharaja Ranjit Singh are not known. The terms of the
grant made by the Governor-General on October 11, 1848, are to be found in the
Sanad of that date. Therefore,, the position of the appellant cannot be any
higher in law than that of Raja Jodhbir Chand and the claim of the appellant
that he bad succeeded, to the rights of the independent rulers of Kangra is
clearly unfounded. Dealing with this part of the appellant's claim, the learned
District Judge, who found in favour of the appellant, relied on certain
observations quoted at p. 365, and again at p. 378, of the Kangra District
Gazetteer (1924-25), observations on which learned counsel for the appellant
has also relied. The observations are taken from Mr. Lyall's Settlement Report.
Mr. Lyall said:
"Under the Rajas (meaning the old Katoch
rulers) the theory of property in land was that each Raja was the landlord of
the whole of his raj or principality, not merely in the degree in which
everywhere in India the State is, in one sense, the landlord, but in a clearer and
stronger degree......................................................................
Each principality was a single estate, divided
for management into a certain number of circuits.
..........................................................
The waste lands, great or small, were the
Raja's waste, the arable lands were made up of the separate holdings of his
tenants. The rent due from the holder of each field was payable direct to the
Raja, unless he remitted it as an act of favour to the holder, or assigned it
in Jagir to a third party in lieu of pay, or as a subsistence allowance.......
...........................................................
Every several interest in land, whether 'the
right to cultivate certain fields, to graze exclusively certain plots of waste,
work a water-mill, set a net to catch game or hawks on a mountain, or put a
fish-weir in a stream, was held direct of the Raja as a separate holding or
tenancy.
The incumbent or tenant at the 117 898 most
called his interest a 'warisi ' or inheritance not 'maliki' or lordship".
Mr. Lyall further observed that "all
rights were supposed to come from the Raja; several rights, such as holdings of
land, etc., from his grant; others, such as rights of common, from his
sufferance". At p. 377 of the Gazetteer a summary is given of the
conditions of land tenure under the rule of the Katoch Rajas. It is stated that
there were two rights in the soil recognised under the Raja's rule-the
paramount right of property which was vested in the Raja and the right of
cultivation derived by grant from the Raja, which was vested in the
cultivators. The first right extended to the whole of the principality; the
second primarily extended only to the plot specified in the grant, but carried
with it further rights of common in adjacent waste. It is then observed that
this system of land tenure came down practically unchanged until the introduction
of British rule, and though the period of Sikh dominion intervened, the Sikhs
did not appear to have altered the system. The learned District Judge relied on
the aforesaid observations for his finding that the appellant had the ownership
of all royal trees in accordance with the system of land tenure which prevailed
during the time of the old Rajas. In our view, the learned District Judge was
in error with regard to this part of the claim of the appellant. Mr. Lyall
began his settlement work in 1865 and his report was dated July 30, 1872. He
continued and revised the earlier settlement work of Mr. Barnes. It is worthy
of note that neither Mr. Barnes nor Mr. Lyall undertook any actual settlement
operations in Nadaun, though Mr. Lyall gathered very valuable historical data
regarding the conditions of land tenure which prevailed in the district of
Kangra under the old Katoch Rajas. It is one thing to say that the system of
land tenure prevailing under the old Katoch rulers continued in spite of the
Sikh interregnums, but it is quite a different thing to say that Raja Jodhbir
Chand, the grantee of a Jagir, succeeded to the rights of the independent
Katoch rulers. The rights of the last independent Katoch ruler, under the
system of land 899 tenure which prevailed at the time, passed first to the
Sikhs who became the rulers of Kangra and then to the British after the Sikh
wars. The learned District Judge failed to appreciate the distinction between
the sovereign rights of an independent ruler and the rights of a grantee under
a grant made by the sovereign ruler. It is pertinent to quote here the
following observations of Lord Dunedin in Vajesingji Joravarsingji v. Secretary
of State for India(1):
"When a territory is acquired by a
sovereign State for the first time that is an act of State. It matters not how
the acquisition has been brought about. It may be by conquest, it may be by
cession following on treaty, it may be by occupation of territory hitherto
unoccupied by a recognised ruler. In all cases the result is the same. Any
inhabitant of the territory can make good in the municipal courts established
by the new sovereign only such rights as that sovereign has, through his
officers, recognised. Such rights as he had under the rule of predecessors
avail him nothing".
Mr. Douie in his Punjab Settlement Manual
(1899) said (P. 69):
"The Sikhs drove the hill Rajas of
Kangra into exile or degraded them into mere Jagirdars, and the British
Government when it took over the country did not restore them to their old
position".
The question as to whether the sovereign
ruler having a right in all royal trees made a grant of that right to Raja
Jodhbir Chand or surrendered that right in favour of Raja Jodhbir Chand or any
of his successors-in-interest is a different question which will depend on the
terms of the grant or on other evidence showing that the right had been
surrendered in favour of the appellant or his predecessorsin-interest. That is
a question which we shall presently discuss. The learned District Judge was
however wrong in thinking that, according to the system of land tenure which
prevailed under the old Rajas or, under the Sikhs, Raja Jodhbir Chand got any
right to all pine trees within Nadaun Jagir.
(1) [1924] L.R. 51. I.A. 357, 360.
900 That brings us to the second ground and
to a consideration of the terms of the Sanad dated October 11, 1848, on which
also the appellant based his claim. The Sanad was in these terms:
"Fresh Sanad re: Settlement upon Raja
Jodhbir Chand Katoch of the villages named hereinafter, situate in Taalluqa
Nadaun, possessed by him.
Whereas the mountainous country together with
the Doaba tract had come under the occupation of the British Company in
pursuance of the treaty which took place between the British Government and the
Sirkar of Lahore on March 9, 1846: The Jagir of Choru, Bara, etc., situate in
the Ilaqa of Nadaun the name of each Tappa whereof together with the number of
its villages and its Jama is given herein below and the total Jama whereof was
Rs. 26,270/10/3 per annum approximately, i.e., as much of the Ilaqa of Nadaun
as was in the possession of the said Raja at the time of the commencement of
tumult of battle whether less or more than the present one, has been granted in
perpetuity, generation after generation, to Raja Jodhbir Chand and his male
legitimate, descendants who are not from the womb of a slave girl under the
orders of the Most Generous Gracious, Exalted and Excellent Nawab Sir Henry
Hardinge G.C.B. GovernorGeneral, ruler of the territory of India, communicated
in writing in English bearing the signature of Mr. 'Edward, Deputy Chief
Secretary to His Excellency, in reply to the Commissioner's report No. 147,
dated July 24, 1847, and also as contemplated in the previous order of the
Nawab GovernorGeneral, dated August 7, 1846, subject to the following
conditions:
1. In no way shall criminal jurisdiction in
respect of the said Ilaqa vest in the Raja Sahib. The entire administration and
power of hearing every sort of complaint between the Riaya (subjects) and the
said Raja shall remain in the hands of the British Government's officers.
2. The Raja Sahib shall not be at liberty to
receive on any pretext Mahsul for any commodity from any I Mahajan and trader
or from the Riaya 901 (subjects) by way of Zakat (octroi), or anything on
account of excise and intoxicants. He shall receive only revenue from the Riaya
living in the villages of his Jagir according to the British Government's rules
of practice. In case of contravention of the said rules of practice cash shall
be fixed by the Government for the said Raja Sahib or his descendants.
3. After the death of the said Raja Sahib
this Jagir shall be divided among his real sons according to the practice
followed by Hindus. It shall not devolve on his descendants from a slave girl.
4. It shall be essential for the Raja Sahib
to construct at his own expense public roads, eleven cubits in width, in his
Ilaqa.
5. It is proper for the Raja Sahib to be
always ready to serve the Government wholeheartedly and to bear good moral
character.
Hence it is obligatory on the said Raja Sahib
not to set his foot on the borders of others beyond his own. He should treat
this Sanad as a Sanad absolute.
Previously on September 22, 1846, a Sanad was
issued' by the Exalted Henry Montgomery Colonel Lawrence from Simla without
thorough enquiry and without the name of each village being entered therein. In
that Sanad the entire Jama is shown to be Rs. 32,000 approximately. According
to the statements of officials of the Raja Sahib the said Jama includes amounts
on account of excise, Bhum Chari (cattle grazing) etc. That was found to be
wrong. Now the present Sanad with the name of each Tappa and the number of
villages and Jama thereof being entered in it is issued by this Court subject
to the above mentioned conditions after an enquiry having been made and a
report having been submitted to the Nawab GovernorGeneral".
Appended to the Sanad was a list of tappas
and villages comprised within the Jagir of Nadaun. The list also mentioned in
the third column the amount of Jama for each tappa.
The question now is whether the aforesaid
Sanad was a grant primarily of land revenue; or it made a grant of other royal
rights including the right to all 902 pine trees which is the particular right
under consideration in the six suits brought by the appellant. It is, we think,
well settled that the ordinary rule applicable to grants made by a subject does
not apply to grants made by the sovereign authority; and grants made by the
Sovereign are to be construed most favourably for the Sovereign. This general
rule, however, is capable of important relaxations in favour of the subject. It
is necessary to refer here to such only of those relaxations as have a bearing
on the construction of the document before us; thus, if the intention is
obvious, a fair and liberal interpretation must be given to the grant to enable
it to take effect; and the operative part, if plainly expressed, may take
effect notwithstanding qualifications in the recitals. In cases where the grant
is for valuable consideration, it is construed in favour of the grantee, for
the honour of the Sovereign; and where two constructions are possible, one
valid and the other void that which is valid ought to be preferred, for the
honour of the Sovereign ought to be more regarded than the Sovereign's profit
(see para 670 at p. 315 of Halsbury's Laws of England, Vol. VII, s. 12, Simonds
Ed.).
It is worthy of note that so far as the lands
in possession of tenants or subjects were concerned, the Sanad did not grant
any right other than the right to receive revenue;
condition No., 2 of the Sanad made it quite
clear that the grantee would receive only revenue from the subjects living in
the villages of his Jagir according to the British Government's rules of
practice, and that the grantee was not at liberty to receive on any pretext
"mahsul" for any commodity from any Mahajan or trader or any octroi,
etc. from any of the subjects. If the 'intention was to grant the right to pine
tree standing on the lands of the subjects, one would expect it to be mentioned
in condition No. 2. The mention of the Jama in the Sanad is also significant.
In the earlier Sanad the entire Jama was shown to be Rs. 32,000, because
according to the statements of the officials of the Raja Sahib, the said Jama
included amounts received on account of cattle grazing, etc.; that was found to
be wrong and 903 the correct Jama was found to be Rs. 26,270-10-3. The Sanad
concluded with these words:
"Now the present Sanad with the name of
each tappa and the number of villages and Jama thereof being entered in it is
issued subject to the above mentioned. Conditions, etc." In the recital
portion of the Sanad also it was stated that the Jagir of certain tappas,
together with the number of villages comprised within the tappas and the Jama
mentioned in the list, the total Jama being Rs. 26,270-10-3, was granted to
Raja Jodhbir Chand. The other-conditions subject to which the grant was made
showed that no sovereign rights were granted to the Jagirdar. In para 69 at p.
96 of his report MrLyall gave a list of the principal Jagirs of Kangra and
stated that Raja Jodhbir Chand had a Jama or revenue demand of Rs. 36,079 in
perpetuity; he said"Out of the total jama, Rs. 6,079 are the assessment of
assigned Khalsa lands which the Raja pays to Government as nazarana; Rs. 33,000
is the value of the grant, but the Raja puts his collection at Rs. 30,000 only,
exclusive of Khalsa tikas". The 'aforesaid remarks, made not very long
after the grant, also support the view that the grant was primarily an
assignment of land revenue and whatever other rights might have been included,
the right to all pine trees on cultivated lands of the subjects was not within
the grant. We agree therefore with the High Court that on a true and proper
construction of the Sanad, it is impossible to spell out of its terms a grant
in favour of Raja Jodhbir Chand of the right to all pine trees on cultivated
and proprietary lands.
We proceed now to examine the third ground of
the claim of the appellant, viz., that part of his claim which is based on the
entries in the Wajib-ul-arz of 1892-93 (Ex. P-5), 1899-1900 (Ex. P-6) and
1910-1915 (Ex. P-4) and other connected documents. This part of the claim of
the appellant has been the most controversial and difficult to determine. The
learned Subordinate Judge expressed the view that the aforesaid entries did not
help the appellant, because they related to pine trees standing either on 904
uncultivated waste lands or nautor (recently reclaimed) lands and not to such
trees on proprietary and cultivated lands. The learned District Judge held on
appeal that in the Wajib-ul-arz of 1892-93 (Ex. P-5) all pine (chil) trees were
held to be the property of Government; this led to a dispute between the Raja
and Government, and in the Wajib-ul-arz of 1899-1900 (Ex. P-6) and subsequent
documents, an entry was made in favour of the Raja showing that Government had
relinquished or surrendered their right to the Raja. He did not agree with the
learned Subordinate Judge that the entries related to pine trees standing on
waste or reclaimed lands only. The learned Judge who delivered the leading
judgment of the High Court gave and considered a long string Of quotations from
many documents and then came to the conclusion that the authority of the
Wajib-ul-arz entries was open to doubt and the Raja had failed to make out his
claim; the learned Judge did not clearly find however if the entries related to
waste and reclaimed lands only.
Learned counsel for the appellant has very
strongly submitted before its that the view of the learned District Judge was
correct and should have been accepted by the High Court; learned counsel for
the respondents has argued, on the contrary, that the trial Judge and the
learned Judges of the High Court came to a definite finding, which he has
characterised as a finding of fact, with regard. to the Wajib-ul-arz entries
and this Court should not go behind that finding. We do not think that these
appeals can be disposed of on the short ground that this Court does not
normally go behind a concurrent finding of fact. Indeed, in respect of the
Wajib-ul-arze entries, there is no concurrent finding in these cases; the trial
Judge thought that the entries related to waste and recently reclaimed lands,
whereas the High Court doubted the very authority of the entries. Moreover, the
question whether from the Wajib-ularz entries an inference of surrender or
relinquishment of a sovereign right by Government can be properly drawn is not
a pure question of fact, depending as it does on the 905 true scope and legal
effect of those entries. We cannot, by resorting to a short cut as it were,
relieve ourselves of the task of examining the Wajib-ul-arz entries and
considering their true scope and legal effect.
We have already referred to Mr. Barnes'
Settlement (1850-52) and pointed out that he did not undertake any actual
settlement operations in Nadaun. The next person who dealt with the settlement
of Kangra was Mr. Lyall, afterwards Sir James Lyall, Lt. Governor of the
Punjab. He began his work in 1865 and wrote his report in 1872. He also did not
undertake any settlement of Nadaun. Alex. Anderson was the next person who
dealt with the settlement of Kangra. By Notification No. 25 dated January 26
1888 a general reassessment of the land revenue of Kangra district was ordered
and by Notification No. 26 of the same date a preparation of the
record-of-rights in the Jagirs of Guler, Siba and Nadaun was undertaken. Mr.
O'Brien undertook the settlement, but died on November 28, 1893 and it was left
to Mr. Anderson to write the report. It may be stated here that Mr. Anderson
wrote two reports: one was the Forest Settlement Report of 1887 and the other
was the Revised Settlement Report of Kangra of 1897. On April 27, 1910 two
other notifications were published, directing a revision of the existing
record-of-rights in Dera and Hamirpur Tehsils (Nadaun being within Hamirpur
Tehsil). As a result, Messrs Middleton and Shuttleworth undertook a revisional
settlement, which was the Settlement of 1910-15. We have in these cases to deal
with the entries made in O'Brien's Settlement (1892-93), Anderson's Settlement
(18991900), and the Settlement of Messrs Middleton and Shuttleworth (191015).
Before dealing with the actual entries made,
it is necessary to refer to a few more matters arising out of the settlement
operations of Messrs Barnes and Lyall. The expressions 'ala-malik' and
'adna-malik' have been used often in the course of this litigation. What do
those expressions mean? In Mr. Douie's Punjab Settlement Manual (1930 edition)
it is stated 118 906 in para 143: "Where the proprietary right is divided
the superior owner is known in settlement literature as ala malik or talukdar,
and the inferior owner as adnamalik.................................... In
cases of divided ownership the proprietary profits are shared between the two
classes who have an interest in the soil". How this distinction arose, so
far as the record-of-rights in the Jagirs are concerned, appears from para 105
at p. 60 of Mr. Anderson's report. Mr. Anderson said:
"The first great question for decision
was the status of the Raja and of the people with respect to the land, which
was actually in the occupancy of the people, and next with respect to the land
not in their actual occupancy, but over which they were accustomed to graze and
to do certain other acts. Mr. O'Brien decided that the Raja was superior
proprietor or Talukdar of all lands in his Jagir, and the occupants were
constituted inferior proprietors of their own holdings and of the waste land
comprised within their holdings as will be shown hereafter; be never fully
considered the rights in waste outside holdings. The general grounds fir the
decision may be gathered from Mr. Lyall's Settlement Report and from the orders
on the Siba Summary Settlement Report, but I quote at length the principles on
which Mr. O'Brien determined the status of occupants of land, not merely
because it is necessary to explain here the action that he took, but also in order
that the Civil Courts which have to decide questions as to proprietary rights
may know on what grounds the present record was based".
Mr. Anderson then quoted the following
extract from Mr. O'Brien's assessment report to explain the position:
"In places where the possession of the
original occupants of land was undisturbed, they were classed as inferior
proprietors; but where they had acquired their first possession on land already
cultivated at a recent date, or where the cultivators had admitted the Raja's
title to proprietorship during the preparation and attestation of the
Jamabandis, they were 907 recorded as tenants with or without right of
occupancy as the circumstances of the case suggested...................
..........................................................
In deciding the question old possession was
respected.
Where the ryots had been proved to be in
undisturbed possession of the soil they have been recorded as inferior
proprietors".
The same principles were followed in Nadaun:
long possession with or without a patta or lease from the Raja was the test for
recording the ryot as an inferior proprietor (adnamalik).
Bearing in mind the aforesaid distinction
between ala-malik and adna-malik, we proceed now to examine the actual entries
made in the Wajib-ul-arz of 1892-93 (Ex. P-5), of 1899-1900 (Ex. P-6) and of
1910-15 (Ex. P-4). In Ex. P-5 the relevant entry in para 11 was:
"The owners shall, however, have no
right to pine trees.
They can neither cut them nor get the same
without permission, for it has been laid down in the Forest Settlement Reports
that the Raja Sahib gave leases to reclaim such lands whereon the Government
jungles, i.e., the' Government pine trees exist. For this reason, the
Government maintained their right to the pine trees. (see para. 78 of the
English report regarding jungles,.)".
In Ex. P-6 the relevant entry was"Except
the chil (pine) trees all the trees situated in the Khata of any person in the
Tikas of the Jagir are the property of the owner of the Khata. The chil trees
growing in such Khatas in the Tikas of the Jagir are the property of Raja
Sahib".
In Ex. P-4 the entry was"Excepting the
pine trees all the trees standing in the Khata of any person in the Tikas of
the Jagir save those proprietary lands the trees whereof have been held
belonging to the Government during the recent Settlement and which have been
mentioned above are the property of the owner of the Khata. In the Tika's of
Jagir. all thepine trees of such Khatas excepting those standing on such
proprietary lands, and which have been held to be the property 908 of the
Government during the recent settlement and mention whereof has been made above
are the property of Raja Sahib." The question-before us is as' to the true
scope and legal effect of these entries. Do they establish a grant of the right
to chil trees or, what is the same thing, a surrender of that right, in favour
of the Raja by Government? In these cases we are not concerned with trees on
public waste lands, nor with forest trees; and as the High Court has pointed
out, we do not know if the lands in suit were initially private waste or
recently reclaimed lands. The Jamabandis show that they are proprietary and
cultivated lands of adna maliks. Therefore, the question before us is the right
to chil trees on proprietary and cultivated lands in possession of adna maliks.
It is not disputed that under s. 31 of the
Punjab LandRevenue Act, 1887, Wajib-ul-arz is a part of the record-ofrights,
and entries made therein in accordance with law and the provisions of Ch. IV of
the Act and the rules thereunder, shall be presumed to be true (vide s. 44).
The Wajib-ul-arz or village administration paper is a record of existing
customs regarding rights and liabilities in the estate; it is not to be used
for the creation of new rights or liabilities. (see para 295 of the Punjab
Settlement Manual, pp. 146-147,1930 ed.). In appendix VIII of the Settlement
Manual, Section E, are contained instructions with regard to the Wajib-ul-arz
and instruction No. 2 states:
"The statement shall not contain entries
relating to matters regulated by law, nor shall customs contrary to justice,
equity or good conscience, or which have been declared to be void by any
competent authority, be entered in it. Subject to these restrictions, the
statement should contain information on so many of the following matters as are
pertinent to the estate:
.......................................................
(h)The rights of cultivators of all classes
not expressly provided for by law (for instance, rights to 909 trees or manure,
and the right to plant trees) and their customary liabilities other than rent.
............................................
(j)The rights of Government to any nazul
property,, forests, unclaimed, unoccupied, deserted, or waste lands, quarries,
ruins or objects of antiquarian interest, spontaneous products, and other
accessory interest in land included within the boundaries of the estate.
........................................................
(1) Any other important usage affecting the
rights of landowners, cultivators or other persons interested in the estate,
not being a usage relating to succession and transfer of landed property".
In the cases before us, the appellant did not
base his claim on custom, though referring to his right be said in his
plaint-"this has been the practice throughout". What he really meant
by "practice" was the land system prevailing under the old
independent Katoch rulers. We have already held that the appellant did not get
the sovereign right of the independent Katoch rulers; nor did the grant made in
1848 give him any right to the royal trees. The entry in the Wajib-ul-arz of
1892-93 (Ex. P-5) is not really in his favour; it states that trees of every
kind shall be considered to be the property of the owners (adna-maliks), but
the owners shall have no right to pine trees; for this last part of the entry
which is somewhat contradictory ofthe earlier part, a reference is made to para
78 of Anderson's Forest Settlement Report as authority for it.
That paragraph, however, stated in clear
terms-"No orders have been passed by main regard to trees on fields, as
the present enquiry extended only to the waste land". It is obvious that
the entry in the Wajib-ul-arz of 1892-93 went much beyond what was stated in
para 78 of Mr. Anderson's report, and so far as the right to pine trees on
proprietary and cultivated lands was concerned, the statement made a confusion
between Government jungles, recently reclaimed land and proprietary land, On
its own showing, the entry was 910 not the statement of an existing custom,
because it referred to para 78 of the Forest Settlement Report; far less did it
show any surrender or relinquishment of a sovereign right by Government in
favour of the Raja. Indeed, it is difficult to understand how the surrender or
relinquishment of such -a right can be the subject of a village custom or can
be within the scope of an entry in the Wajib-ul-arz. The original grant in
favour of Raja Jodhbir Chand was by means of a Sanad, and one would expect any
additional grant or surrender to be embodied in a similar document. At any
rate, if the intention of Government was to surrender a sovereign right in
favour of the Raja, one would expect such intention to be expressed in
unambiguous language. In Khalsa villages, Government did surrender their right
to trees on Shamilat lands of adna-maliks on the authority of letter No. 347 of
January 6, 1867. Taking the most favourable view for the appellant, the entries
in the Wajibul-arz in these cases can be said to express the views of certain
revenue authorities as to the rights of the Raja or the intention of
Government; but the views of the revenue authorities as to the effect or
construction of a grant or the intention of Government in respect of a grant,
do not conclude the matter or bind the civil Courts. (See Rajah Venkata
Narasimha Appa Row Bahadur v. Rajah Narayya Appa Row Bahadur(1)).
The same comments apply to the Wajib-ul-arz
of 1899-1900 (Ex. P-6) and of 1910-15 (Ex. P-4). They no doubt say that the
pine trees on the lands comprised within the Khatas of adna-maliks are the
property of the Raja Sahib. None of them indicate, however, on what basis the
right to chil trees on proprietary and cultivated lands of the adna-maliks is
to be held the property of the Raja Sahib. If the revenue authorities made the
entries on the basis of the land system of the old Katoch rulers or on the
basis of the Sanad of 1848, they were clearly wrong. -If, however, there was a
surrender by Government of the right in favour of the Raja, one would expect it
to be mentioned unambiguously in the entries; one (1) [1879] L.R. 7 I.A. 38,
48.
911 would further expect the same to be
mentioned in the Jamabandis (Exs. D-7 and D-8) of the adna-maliks. The
Jamabandis do not, however, show any restriction on the rights of adna-maliks
with regard to the trees on their lands. A reference may be made here to
another document (Ex. D-2) which is an extract of the Wajib-ul-arz (para 12) of
'1892-93, dealing with the rights of ala-maliks and adnamaliks. The entry shows
that the Raja Sahib was to get 15 per cent. on the net revenue in respect of
the entire land owned by the adna-maliks as talukdari dues which had been
fixed: the talukdari dues were fixed to compensate the Raja Sahib for all sorts
of dues, such as banwaziri, domiana, etc. It is improbable that after the
fixation of such talukdari dues, a grant of a further right in respect of chil
trees on the lands of adna-maliks will be made but will not be specifically
mentioned in para 12 of the Wajibul-arz, which dealt particularly with the
rights of ala and adna maliks. Learned counsel for the appellant drew our
attention to Ex. D-6, an extract of para 11 of the Wajib-ul-arz, of 1914-15, at
the bottom of which there is a note that the Zamindars (adna-maliks) were
present and every paragraph had been read out to them and the same were
correct. The argument before us is that the adna-maliks admitted the
Wajib-ul-arz of 1914-15 to be correct. We cannot accept that argument; firstly,
we do not think that the endorsement at the bottom of Ex. D-6 is an admission
by adna-maliks of the correctness of the entries made in other paragraphs of
the Wajib-ul-arz, as for example, para 10 (Ex. P-4) which related to the rights
of Government in respect of the nazul lands, etc. Secondly, even if the
endorsement amounts to such an admission as is contended for by learned counsel
for the appellant, we do not think that it is conclusive or decisive of the
right which the appellant is claiming. Ex. P-2 dated May 27,1886, showed that
even so far back as at that date, sonic of the adnamaliks had complained that
the Raja's men had cut and taken away some chil trees on their lands. It is
quite improbable that after such a complaint the adna-maliks would admit the
right of the ala-malik 912 to chil trees on their lands. In para. 296 of the
Punjab Settlement Manual, Mr. Douie observed that the Wajib-ul-arz in the first
regular settlements was sometimes a formidable document, but its real value as
evidence of village custom was not always proportionate to its length. He 'A
quoted with approval the observations of Sir Arthur Brandreth to the following
effect: "Some -few points have been ascertained in each case, but in
general the villagers did not know their customs very well, and when they put
their seals to the paper, no doubt they thought it very grand, though they did
not know what it was about, as they could little understand the language. The
rules are of two sorts;
one, the rules laid down by Government, or
points on which the whole pargana have the same custom, and, secondly, the
special customs of the particular manor; these together take up a great number
of pages, and the villagers are confused by the long code of rules, and merely
say 'yes, yes' and put their seals to. the paper, hoping it is nothing very
dreadful." A large number of decisions in which entries of the
Wajib-ul-arz or the Riwaji-i-am and the value to be given to them were
considered, have been cited before us. In some of them, entries in the
Wajib-ul-arz were accepted as correct and in others they were not so accepted,
notwithstanding the statutory presumption attaching to the entries under s. 44
of the Punjab Land-Revenue Act, 1887. We do not think that any useful purpose
will be served by examining those decisions in detail. The legal position is
clear enough.
As was observed by the Privy Council in Dakas
Khan v. Ghulam Kasim Khan(1), the Wajib-ul-arz, though it does not create a
title, gives rise to a presumption in its support which prevails unless the
presumption is property displaced It is also true that the Wajib ul-arz being
part of a revenue record is of greater authority than a Riwaji-i-am which is of
general application and which is not drawn up in respect of individual villages
(Gurbakhsh Singh v. Mst. Partapo(1)).
Whether the statutory presumption (1) A.I.R.
1918 P.C. 4.
(2) [1921] I L.R. 2 Lah. 346.
913 attaching to an entry in the Wajib-ul-arz
has been properly displaced or not must depend on the facts of each case. In
the cases under our consideration, we hold, for the reasons already given by
us, that the entries in the Wajib-ul-arz with regard to the right of the Raja
in respect of chil trees standing on cultivated and proprietary lands of the
adna-maliks, do not and cannot show any existing custom of the village, the
right being a sovereign right; nor do they show in unambiguous terms that the
sovereign right was surrendered or relinquished in favour of the Raja. In our
view, it would be an unwarranted stretching of the presumption to hold that-the
entries in the Wajib-ul-arz make out a grant of a sovereign right in favour of
the Raja;
to do so would be to hold that the
Wajib-ul-arz creates a title in favour of the Raja which it obviously cannot.
It is necessary to state here that in the
Wajib-ul-arz of 1899-1900 (Ex. P-6) there was a reference to certain orders
contained in letter No. 1353 dated March 11, 1897, from the Senior Secretary of
the Financial Commissioner. This Wajibul-arz also showed that certain
amendments were made on May -26, 1914, by an order of Mr. Shuttleworth, the
then Settlement Officer. There is a further note that the amendment was
cancelled on January 23, 1917. In the High Court judgment there is a reference
to the notes mentioned above and the learned Judge who gave the leading
judgment observed that the aforesaid notes showed that the state of affairs
prevailing at that time was some what confused and fluid. It is probable that
each revenue officer was expressing his own opinion about the matter. An
attempt was made in the High Court to get some of the unpublished original
documents of Government to clarify the entries in the Wajib-ul-arz. The
Government of the Punjab, however, claimed privilege in respect of those documents,
which claim was upheld in the High Court. We have re-examined that claim, and
though the State was not a party to this litigation, we heard the learned
Advocate-General for the State..
914 We found the claim to be valid under the
law as it stands at present.
We have assumed that the entries in the
Wajib-ul-arz of 1899-1900 and of 1910-15 related to cultivated and proprietary
lands of adna-maliks, though they were entered in a paragraph which dealt with
the rights of Government in respect of ownership of the nazul lands, jungles,
unclaimed property, etc. Even on that assumption, we have come to the
conclusion that the entries in the Wajib-ul-arz do not establish the claim of
the appellant that there was a surrender or relinquishment of a sovereign right
in favour of his predecessor.
It remains now to notice' some other evidence
on the record.
Learned counsel for the appellant has
referred us to several judgments, Exs. P-9, P-7, P-8 and P-4 (wronglymarked as
Ex. P-6). Referring to these judgments, the learned trial Judge said that it
was not clear whether those judgments related to lands which were private waste
or nautor (reclaimed) lands. Apart, however, from that difficulty, we are of
the view that, the judgments do not advance the case of the appellant any
further. They -proceeded primarily on the entries in the Wajib-ul-arz, the
effect of which entries we have already considered at great length. Admittedly,
no plea of res judicata arose on these judgments, and they were merely evidence
of an assertion and determination of a similar claim made by the Raja in
respect of other lands within the Jagir.
As to the oral evidence in the case, none of
the Courts below placed any great reliance on it. The learned Subordinate Judge
did not accept the oral evidence given on behalf of the appellant; the learned
District Judge, referring to the oral evidence of the respondents, said that he
could not accept that evidence in preference to the overwhelming historical and
documentary evidence led by the appellant. With regard to the appellant's
witnesses he seemed to think that some of them at least were reliable.
The learned Judges of the High Court did not
refer to the oral evidence except for a slight reference to the statement of
Salig Ram, the Raja's attorney, who appears to have stated that the Raja got
his rights in 1893-94; how the Raja got his rights then was not explained.
Learned counsel for the appellant has referred us to the evidence of one Babu
Kailash Chander (witness No. 2 for the appellant), who was a Forest Range
Officer. This gentleman said that the trees standing on the land belonging to
the landlords were exclusively owned by the Raja Sahib. In cross-examination he
admitted that he had no knowledge of the trees in suit nor did he know on which
lands the trees were standing. He admitted that he knew nothing about the
rights of the Jagirdar and the landlords inter se with regard to the lands in
dispute. It is obvious that such evidence does not prove the case of the
appellant. Had the Raja been in possession of the pine trees for such a long
time as he now claims, one would expect him to produce some documents showing
his -income, etc. from the trees. No such documents were produced.
For these reasons, we hold that the appellant
has failed to establish his claim to the pine trees, and the decision of the
High Court is correct. The appeals fail and are dismissed. In the circumstances
of these cases, where much of the doubt as respects the right claimed arose out
of the entries made in the Wajibul-arz, the High Court properly directed that
there would be no order for costs either in the High Court or in the Courts
below. We think that that order was correct, and we also pass no order as to
costs of the hearing in this Court.
Appeals dismissed.
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