Jibon Chandra Sarma Doloi Vs. Anandi
Ram Kalita & Ors  INSC 66 (23 February 1961)
23/02/1961 GAJENDRAGADKAR, P.B.
CITATION: 1961 AIR 1309 1961 SCR (3) 947
CITATOR INFO :
RF 1972 SC 246 (13,14)
Brahmottar land-If alienable.-Burden of Proof-Assam Land and Revenue Regulation, 1886 (Reg. 1 of 1886), ss. 3(g), 8(1)(a), 9.
The plaintiff-appellant filed a suit alleging
that the lands in suit were unauthorisedly transferred to the predecessors in
title 121 948 of the respondents. His contention was that the lands were
granted to the Bardeuries (officials) of a certain ancient temple in Assam in
order to enable them to render service to the deities installed in the temple
and as such the lands were inalienable to strangers other than the Bardeuries.
Held, that in view of the history of land
tenure in Assam and by virtue of the relevant statutory provisions of Assam
Land and Revenue Regulation (Reg. 1 of 1886) the lands must.
be deemed to be heritable and transferable
without any restriction. The transferor Bardeuries, who held the lands
described as brahmottar lands in revenue records, fell under s. 8(1)(a) and
became " land holders " under s. 3(g) of the Regulation and
consequently s. 9 applied to them statutorily recognising their rights in the
lands to be permanent, heritable and transferable.
To prove the plaintiff appellant's contention
that the lands could be alienated only to a specified class of persons, the
onus was on the appellant and not on the respondents to prove the contrary.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 105 and 106 of 1957.
Appeals from the judgment and decree dated
April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41
and 54 of 1951.
L. K. Jha and D. N. Mukherjee, for the
Naunit Lal, for respondents Nos. 1 to 12.
1961. February 23. The Judgment of the Court
was delivered by GAJENDRAGADKAR, J.-These two appeals arise from a suit
instituted by the appellant in the Court of the Special Subordinate Judge,
Assam Valley Districts, in which he claimed a declaration that the sale deeds
of lands described in detail in the various Schedules attached to the plaint
were void and for possession of the lands covered by the said sale deeds. His
case was that Madhab Temple at Hajo is a very ancient temple and the Assam
Rajahs had granted lands to the Bardeuries (temple officials) to enable them to
render service to the deities installed in the said temple.
The lands thus granted to the temple officials
were endowed lands and the same had been burdened with service to the temple;
in other words, the grantees were entitled to enjoy the lands on condition that
they rendered the requisite service to the temple. As a corollary of the 949
burden imposed on the grantees by the said grant the lands were inalienable to
strangers though they could be transferred to any of the Bardeuries of the
According to the appellant the said lands had
originally been granted to Hem Kanta Sarma and Uma Kanta Sarma who were then
the worshippers at the temple. The respondents who were impleaded to the"
suit represented the heirs of the original grantees and assignees from those
heirs. The appellant has brought this suit on behalf of the Madhab Temple at
Hajo, and his case is that the alienations made by the worshippers in favour of
non-worshippers were invalid and so the temple was entitled to claim a
declaration as set out in the plaint and to ask for possession of the lands
unauthorisedly transferred to the predecessors in title of the respondents. The
lands in suit have been described in detail and specified in three Schedules
called Ka, Kha and Ga.
The respondents denied this claim. They urged
that the original grants were not burdened with service and were alienable
without any restriction whatever. They also pleaded that they had purchased the
lands bona fide for valuable consideration and without notice of any such
burden or obligation subsisting on the lands. Besides, they added a plea of
limitation in respect of the lands specified in Schedules Kha and Ga. The trial
court upheld the appellant's contention and made a finding that the lands in
suit were burdened with service with the result that the impugned alienations
were void. It also found that the purchasers had not shown that they had made
adequate enquiries and so their plea that they were purchasers without notice
could not be sustained. On the question of limitation, however, it accepted the
plea raised by the respondents in respect of the lands described in Schedules
Kha and Ga. In regard to the lands described in Schedule Ka the trial Court
directed that the appellant should obtain delivery of possession of the said
lands through the transferor-defendants or their heir if the latter were
willing to render service to the temple; otherwise the appellant was held
entitled to get independent possession and the said transferors 950 would be
deemed to have relinquished their interest in the said lands.
This decree gave rise to cross appeals before
the District Court. The said appeals were heard together and the appellate
court confirmed the decree passed by the trial court in respect of Kha and Ga
lands. In regard to the lands in Schedule Ka the appellate court maintained the
declaration in favour of the appellant but discharged the conditional decree
for possession because it held that in regard to the said lands the appellant
must be left to move the sovereign authority to sue for resumption of the said
This appellate decree became the subject
matter of two appeals and cross objections before the High Court. The High
Court has held that the finding concurrently recorded by the courts below in
regard to the burden subsisting on the lands in question was based on evidence
most of which was hearsay and the whole of which taken together was meager and
insufficient in law to sustain the said finding. The High Court has also
criticised the courts below for placing the onus of proof in regard to the
character of the lands on the respondents. According to the High Court it was
for the appellant to prove his case in respect of the nature of the original
grant. The High Court has then taken into account the fact that the evidence
shows that many of the lands were transferred to strangers and that was
inconsistent with the case made out by the appellant. Besides, the High Court
has referred to the fact that the lands in question are described as Brahmottar
lands in revenue papers and that clearly shows that the said lands are
heritable and transferable without restriction. On the question of limitation
the High Court has accepted the plea of the respondents that Article 144 of the
Limitation Act applied.
As to the declaration granted to the
appellant by the District Court the High Court has observed that the said declaration
was absolutely futile. In the result the suit preferred by the appellant has
been dismissed with costs throughout. It is this decision which is challenged
before us by the appellant with a certificate granted to the appellant by the
High Court in that behalf 951 The principal point which has been urged before
us by Mr. Jha for the appellant is that the High Court was in error in coming
to the conclusion that lands in suit which are admittedly described as
Brahmottar lands in the revenue records are transferable without, any
restriction. In support of its conclusion the High Court has referred to the
history of the lands, the nature of the initial grant and the recognition of
the title of the grantees by the British Government after it conquered Assam
and of the several steps taken thereafter. This history has been set out in
detail in the Assam Land Revenue Manual(1). From this introduction it appears
that Nisf-khiraj (half-revenue paying) estates as distinguished from Khiraj
(full. revenue paying) estates form a class of tenure found only in Assam
Proper and they have a special history of their own. In 1834, shortly after
Assam was annexed by the Government of India it ruled that " all rights to
hold lands free of assessment founded on grants made by any former Government
must be considered to have been cancelled by the British conquest. All claims
therefore for restoration to such tenure can rest only on the indulgence of the
Government without any right." This ruling clearly and emphatically brought
out the legal consequences of political conquest. Grants made by the previous
Governments came to an end and their continuance after the conquest would
depend upon the indulgence of the succeeding Government.
It appears that prior to the conquest of Assam
under the previous regime the predecessors in interest of the then owners of
Nisf-khiraj estates held their lands revenue-frce and called themselves
lakhirajdars. They continued to describe themselves as such even after their
lands were resumed and assessed at half rates. Mr. Scott, the first British
Commissioner of Assam, refused to recognise any claims to hold land
revenue-free. Research made by him in that behalf showed that even prior to the
Burmese conquest of Assam lakhiraj land had occasionally been assessed at five
annas a pura (four bighas) in timer, of trouble by (1) Vol. 1, 6th Ed., p.
952 the Assam Rajahs themselves. Basing
himself on this precedent Mr. Scott fixed the assessment of the said land at
the said rates and subsequently increased it to seven or eight annas a pura.
This imposition war, known as Police Barangani.
Captain (afterwards General) Jenkins became
the Commissioner of Assam in 1834. The lakhirajdars objected to pay the tax
imposed on their lands by Mr. Scott on the ground that Mr.
Scott intended to levy the said tax
temporarily and had promised Lo remit it. This dispute was referred by General
Jenkins to the Government of India who replied that they saw no reason to
believe that the tax imposed by Mr. Scott was intended to be temporary, and
they added that if it was Mr. Scott's intention it would Dot be valid because
Mr. Scott had not obtained the sanction of the Government in that behalf. Even
so, the Government of India directed that a full enquiry should be made into
all claims to rent-free lands on the part of Rajahs or as debotter or
dharmottar or on any other plea throughout the districts of Assam and Captain
Bogle was appointed Special Commissioner to make the said enquiry under
Regulation III of 1818. This enquiry had to be held subject to the control and
orders of General Jenkins. The Government prescribed certain principles to
guide Captain Bogle in his enquiry. One of these principles was that pending
the lakhiraj enquiry Mr. Scott's moderate rates were to be levied. The orders
issued by the Government in that behalf clearly declared the right of the
Government to assess all lands held revenue-free in Assam Proper, but subject
to this right Government were prepared to grant the indulgence of restoring to
the lakhirajdars all lands held by them and to confirm them in possession.
It appears that the instructions issued by
the Government were not fully carried out by General Jenkins. Instead of
treating all lakhiraj lands as being on the same footing and liable to
assessment the General drew a broad distinction between debotter lands which
were appropriated to temples and lands known as brahmottar or dharmottar, that
is to say, 953 lands devoted to some religious purpose not being temple lands.
In respect of the former he confirmed the grants revenue-free. In respect of
the latter be simply confirmed the grantees in possession subject to the
payment of Mr. Scott's favourable rates until, Captain Bogle's enquiry was
terminated and final orders passed in that behalf It is curious that though the
enquiry of Captain Bogle went on for many years it was not formally completed
till the year 1860. By that time the instructions issued by the Government of
India at the commencement of the enquiry were lost sight of. No report was
submitted to the Government by the enquiring officer and final orders of the
Government of India were not obtained on the question whether the holders of
brahmottar and dharmottar lands were to hold their lands at the rates fixed by
General Jenkins. In consequence holders of these lands have ever since
continued to hold at half rates without any formal decision by the Government
of India having been reached in that behalf. Subsequently the holders' rights
to continue to hold the lands at the said rates have been recognised and their
holdings have been declared to be heritable and transferable by the Government
of India in 1879.
This summary of the history of these lands
which is to be found in the introduction to the Assam Land Revenue Manual shows
that Nisf-khirajdar of the present day " is ordinarily a person whose
lands were claimed by his ancestors revenue- free on the ground that they were
granted by the Assam Rajas for some religious or charitable purpose". It
appears that the word " Nisf-khiraj " was invented for the first time
in 1871 and it applied to all estates which paid half the ordinary revenue
rates. This word was presumably invented to avoid confusion caused by the use
of the word " lakhiraj which had been applied to them prior to 1871.
The history of this tenure is similarly
stated in the Government Gazette relating to Assam as well as by Baden- Power
(Vol. III, pp. 406 following).
954 At this stage it would be necessary to
refer to the relevant provisions of Regulation 1 of 1886,. It in called the Assam Land and Revenue Regulation of the said year. Section 3(g) of this Regulation defines
" land holder " as meaning any person deemed to have acquired the
status of a land holder under s. 8 ; while s. 8 (1) provides, inter alia, that
any person who has, before the commencement of this Regulation, held
immediately under the Government for ten years continuously any land not
included either in a permanently settled estate, or in a revenue-free estate,
and who has during that period paid to the Government the revenue due thereon
or held the same under an express exemption from revenue, shall be deemed to
have acquired the status of a land holder in respect of the land. That takes us
to s. 9 which provides that a land holder shall have a permanent heritable and
transferable right of use and occupancy in his land subject to the provisions
contained in cls. (a), (b) and (c) of the said section. It is unnecessary to
refer to the said exceptions. It would thus be clear, and indeed it is not
disputed, that the transferor Bardeuries who held the lands in suit fall under
s. 8 (1) (a) and became land holders under s. 3 (g). The inevitable consequence
of this position is that s. 9 applies to them and their rights in the lands in
their occupation are statutorily recognised to be permanent, heritable and
transferable. This statutory position is consistent with the declaration made
by the Government of India in 1879, and in view of this clear statutory
position it would be difficult to sustain the plea that the lands in question
are burdened with the special condition that they can be transferred only to
Bardeuries and not to any strangers outside the group. As the High Court has
found. and that is no longer in dispute, these lands are described as brahmottar
lands in revenue records and to the said lands and their holders the statutory
provisions of the Regulation to which we have just referred applied; therefore,
it is impossible to escape the conclusion that by virtue of the relevant
statutory provisions of the Regulation the lands must be deemed to be heritable
and transferable without any restrictions 955 This aspect of the matter was
completely ignored by the trial court and the appellate court, and so the High
Court was right in correcting the error which had crept into the concurrent
decisions of the courts below.
Besides, the High Court was also right in
holding that in a case of this kind where the appellant urged that the lands
could be alienated only to a specified class of persons, the onus 'Was on the
appellant and not on the respondents to prove the contrary. Failure to put the
onus on the appellant introduced a serious infirmity in the approach adopted by
the courts below in dealing with this question.
That was another infirmity in their decision.
It is also clear that the evidence adduced by the appellant in support of his
case to which reference has been made by the first two courts is entirely
unsatisfactory and, even if it is believed, in law it would be insufficient to
sustain the plea that there was a limitation on the transferability of the
lands in question. We are also satisfied that the declaration granted by the
District Court was futile.
Therefore, in our opinion, the view taken by
the High Court is absolutely correct and the grievance made by the appellant
against the validity of the said conclusion cannot be sustained.
In the result the appeals fail and are
dismissed with Costs.