Lord Phillimore. -
This suit was brought on the 3rd September 1914, by the respondent, the Raja of Pachete, against the Secretary of State for India and certain coal and iron companies who are, with the Secretary of State, appel lants before their Lordships' Board, and other parties described as digwar ghat wals, alleging that three mouzahs known as Kendua, Parira and three-quarters of Garh Parira in the Burdwan district of Bengal were included in his zamindari, and that this being so he was the pro prietor of the mineral rights under the said mouzahs, and that the Secretary of State and the digwars had purported to grant leases of the mineral rights to the defendant companies, and praying that it might be declared that he was the right ful owner of the minerals and that the lessees and sub-lessees had no right to them and should be restrained by injunc tion from trespassing and working the minerals, and asking for damages with interest and costs.
The Secretary of State in his defence said that the plaintiff was never within 12 years in possession of the mineral rights claimed by him, and that he and the Defendants 2, 3 and 5, had been for more than the said period openly and as of right in enjoyment of the minerals, and that the three mouzahs did not form part of the permanently settled estate of the plaintiff, but had been digwari chakran from before the Permanent Settlement of 1793. He further denied the plaintiff's title to the minerals. The other defen dants set up similar defences.
Issues having been settled by the Sub ordinate Judge, the case was transferred by the District Judge to his Court in July 1917, and heard by him on oral and documentary evidence in the months of April and May 1918.
On the 28th May 1918, he delivered judgment, supporting all three of the de fences raised, i.e., holding that the plain tiff had no title to the villages in suit that if he had been the landowner he would not have the right to the minerals which would still be in the Crown, and that the defence of adverse possession and consequent limitation was also good.
The appeal being taken to the High Court of Judicature at Calcutta, that Court, on the 24th July 1921, reversed the judgment, and while refusing the plaintiff some of the relief which he claimed made a decree in his favour in terms following :
It is ordered and decreed that the plaintiff be and he is hereby entitled to a declaration that the mouzahs in dispute described in the plaint out of which this appeal arises together with the minerals underlying them are included within his permanently settled estate, that he is the rightful owner of the minerals in the mouzahs and that none of the defendants has any right to the minerals in the mouzahs. And it is further ordered and decreed that a perpetual in junction do issue restraining the defendants from working coal or other minerals in the mouzahs.
The Secretary of State and the com panies have applied to His Majesty in Council from this decree. The ground upon which the High Court held that the mouzahs in dispute with the minerals underlying them were with in the permanently settled estate was that they were what is called thanadari lands. Having so decided, the Judges thought that the further defence of limi tation was not good, nor was the defence good that the minerals under these villages belonged to the Crown. Their Lordships will take the question of owner ship first.
The learned counsel for the respondent Raja, when it came to their turn, while ac cepting and supporting the reasoning of the High Court rested the main strength of their argument upon two other grounds, the first of which comes to be discussed in logical order before the submissions made by the appellants.
This first argument was founded upon the language of the regulations of 1790 and 1793, which established the decennial and permanent settlements of Bengal, Orissa and Behar.
Regulation 8 of 1793, sub-S. 4, speaks of the settlement being "concluded with the actual proprietors of the soil whether zamindars, talukdars or chaudhris."
Upon the strength of this and other passages in the regulations, it was urged that the government of the day recognized a pre-existing right in the zamindars and others and did not confer rights by the settlement, and consequently that it was possible that lands owned by a zamin dar - though not la-khiraj or thanadari - might never have been settled and yet be his property and so might descend to the successor in title of the original zamindar, having remained unsettled through all these years.
Whether such lands according to the argument were to be reckoned as part of a zamindari or to be treated as de hors the zamindari was not made clear.
The argument receives no support from decided cases and appears at first sight to be contrary to the teaching of the text-books ; but their Lordships are re lieved from considering its force because it was never submitted to either of the Courts in India.
Courts of Final Appeal - whether it be the House of Lords or this Board - have long established it for themselves as a principle of wisdom and prudence that they should be very chary of entertaining an argument which has not been sifted in the Courts below; and if this be true as a general rule, it is especially true when the question to be decided concerns the diversified and complicated Indian Law as to tenure of land.
Not only is there no trace of this point having been brought before the Indian Courts ; but it is apparent that the case of the respondent was rested from the beginning on other grounds. Paragraph
2 of his plaint states that the three mouzahs in question are "included in the revenue-paying ancestral zamindari of the plaintiff known as Chakla Pachete."
The 2nd issue as suggested by the plaintiff was :
"Are the mouzhas Kendua, Parira and three-fourths of Garh Parira situate within Chakla Panchkote the permanently-settled zamindari of the plaintiff, and are they included within the said permanent settlement?"
and as actually fixed, was in the follow ing words ;
Were the mouzahs in suit permanently settled by Government with the plaintiff's ancestors, and is the plaintiff by right of such settlement entitled to the mineral rights under the mouzahs ?"
These things being so, their Lordships do not feel that they ought to give fur ther consideration to this argument.
The argument, however, as to the kind of recognition which was given to those who were in the position of zamindars at the time of the decennial and per manent settlements, and the deductions to be drawn not only from the regulations but from the despatches and minutes of those in authority is not, as will be noticed hereafter, without valuable bear ing upon the question, which in their Lordships' opinion is the real question which was intended to be raised, that is, whether the three mouzahs were perman ently settled with the plaintiff's ances tors and form part of the plaintiff's zamindari.
The zamindari of the Raja of Pachete is of great size and is said to extend over more than 2,000 square miles, with more than a thousand villages or mouzahs upon it. The three mouzahs in question are interlocked with the unquestioned por tion of the zamindari but it is doubtful whether all three are absolutely enclosed in it. The topographical situation is such as to afford some slight presumption that the three mouzahs are part of the zamindari.
The contents of the plaintiff's estate are to be deduced from the kabuliat given by the then Raja upon the occasion of the permanent settlement of his zamindari in the year 1793.
The divergence of the two Courts in India begins with the construction of this kabuliat.
The material parts of it are as fol lows :-
This kabuliyat is executed by me Maharaja Sri Sri Raghunath Narayan Deb to the effect follow ing :- That my zamindari Pargana Punchkoti etc., appertaining to the Province of Bengal, the para dise of the world, exclusive of Gunjes, Bazars and Hats and of the entire sayerats and mutfara (ground rents) and exclusive of all lakheraj lands whether Sanadi or Besanadi of that pargana, is settled with me in mokurari as my Tahut for the term of ten years from 1197 B. S. to 1206 B. S. as per schedule below, at a jumma of sicca Rs. 52,853 (fifty-two thousand eight hundred and fifty-three) annually, i.e., at sicca Rs. 5,28,530 (five lakhs twenty-eight thousand five hundred and thirty) in the total, inclusive of all abwabs in force in the said zillah. So I agree, and give in writing that I shall pay the said amount of re venue as per separate kistibandi without excuse or variation. . . . And I shall file within the current year in the Zilla Record Room a list under my signature showing village by village the mofussi distribution of the jumma fixed in the Sadar for my Tahut in proportion to the ren tals therefrom together with the areas of Talabi and Betalabi lands within the four boundaries of the settled Hudda. And in future in the begin ning of each year, within the first three months, 1 shall deliver a list of such distribution of revenue. In case of neglect or delay in this matter, I shall be answerable , to the Government. I shall not without the Huzur's permission and advice make any Brahmottar, Debottar, Mahatran, Aima, Ma dadmas, Piran and Fakiran grants, etc. - any sort of lakheraj (tenures) - to anybody in the said pargana.
The schedule, if ever there were one, is missing. There are certain sarasikan papers of 1790 bearing the signature of the Raja, which in the opinion of the District Judge represent the list which the Raja undertook to file within the current year showing not only the mofus sil distribution of the jumma but also the area of the lands whether talabi or betalabi. These sarsikan papers mention 1,197 villages. They do not contain the three mouzahs in question. They con tain, however - and this is of some importance the name of one mouzah stated to be occupied by digwars and to be paying a rent.
The three mouzahs in question in this suit have been in the occupation of the digwar ghatwals for as far back as can be traced, certainly for a period anterior to the settlement with the Raja. They may, notwithstanding, be within his zamindari ; or the digwars may hold directly of the sovereign power as co-ordinate with rather than subordinate to the Raja.
In the weighty judgment prepared and delivered in 1855 on behalf of the Board by Mr. Pemberton Leigh (afterwards Lord Kingsdown) in the case of Raja, Lelanund Singh Bahadoor v. Bengal Government [18-4-57] 6 M. I. A. 104 : 4 W. R. 77 : 1 Suther 248 : 1 Sar. 505 (P. C.) an account was given of the three classes of service tenures which are or were not uncommon in India.
The lowest class of chakeran lands are those held by minor officers of the zamin dar whom he appoints and with whose services he could dispense, thereupon resuming their lands for the purpose of imposing upon them suitable rent. Next in order come the tannahdars, police officials, whom in old times it was the duty of the zamindar to provide, whom he allowed to occupy their lands, either rent free or subject only to a quit rent, and in respect of whom the Government made an allowance to the zamindar to recompense him for the rent which he bad lost.
By Regulation 1, S. 8, Cl. 4 of 1793, it was provided that the zamindars might be relieved of their police duties ; and in that case the Government might resume the allowances or the produce of the lands, as it thought proper. In such cases the zamindars would in turn resume the lands of their subordinate tannahdars.
A higher class is that of ghatwals, some of whom, as mentioned in Lord Kingsdown's judgment, might be persons of high rank, though in other cases the position of a ghatwal might be treated as something between that of a chowka dar and an office peon," to adopt the language of the District Judge in this case.
But whatever their dignity, these ghat wals were always of ancient date. It is said by the High Court in this case that the East India Company never created a ghatwali tenure ; and though there is some indication in the narrative in Lord Kingsdown's judgment that there actually were creations of some ghatwali tenures in that case, no doubt the action of the East India Company was generally con fined to recognition and confirmation. Digwans in this district appear to take the same position as ghatwals in other districts.
Still the question remains - were the officers of the highest class always sub-ordinate to the zamindar, or were they sometimes co-ordinate ? In the case in Raja Lelanund Singh Bahadur v. Ben gal Government (1), it was held that the Raja had made his settlement for his zamindari as a whole or block, that the ghatwali lands were included in this settlement, and that the ghatwals held of him. Indeed, it was agreed and admitted in that case that the ghatwali lands formed part of the zamindari, the holders paying a quit rent to the zamin dar.
But as stated in the judgment already quoted, the nature and extent of their rights probably differed in different dis tricts and in different families. That judgment refers to the tenures in Beer bhoom, the holders of which - though no doubt they paid a fixed rent to the zam indar - are entitled to hold their lands in perpetuity, subject to the performance of certain duties. (See Regulation 29 of 1814.)
The classes of possible ghatwali tenures and their nature are described in much detail in the case of Narayan Singh v. Niranjan Chakravarti AIR 1924 P. C. 51 in which the judgment of the Board was delivered by Lord Sumner in 1923, dealing with the Sonthal parganas. He says :
"In the Sonthal parganas there are for prac tical 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 Per manent Settlement have been included in a zamiadari estate and formed into a unit in its 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 matter may, however, be looked at broadly. 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. . . . The superior who appoints him may also, in the varying cir cumstances of the organization of Hindustan, be the ruling power over the country at large, the landholder responsible by custom for the main tenance of security and order within his estates, or simply, the private person, to whom the main tenance of watchmen is, in the case of an exten sive property, important enough to require the creation of a regular office."
The tenure though peculiar, because of a certain reserved power of selection, nevertheless ranks as hereditary, Raja Durga Prashad Singh v. Tribeni Singh [1918] 46 Cal. 362 : 45 I. A. 251 (P. C.). Colonel Dalton, Commissioner of Chota Nagpur in a letter of 14th June 1869, (Record, Pt. II, p. 389) gives a use ful account of their origin.
While, therefore, it may well be - and in fact it is ascertained in respect of some tenures in this very case - that the dig wars or ghatwals are subordinate to the zamindar it is always a question of fact whether they are or are not subordinate ; and it is upon this footing that the Courts in India and their Lordships have approached the present case.
That the burden was upon the respon dent to prove that they are part of his zamindari is well settled. The case of Forbes v. Meer Mahomed Tuquee [1869-70] 13 M. I. A. 438 : 5 B. L. R 529 14 W. R. 28 : 2 Suther. 358 : 2 Sar. 588 (P. C.) where this Board held that the disputed lands were within the geogra phical limit of the zamindari and yet not proved to be of it, is strong on this point (see pages 457 and 458.)
Now the point made by the District Judge is that the kabuliat covers the whole estate of the Raja, that it refers to a list of villages and undertakes to show village by village the mofussil distribution of the jumma, that in fact the list (i.e., the sarsikan papers) does show the revenue set aside for each, and therefore, in his view, it is not an engagement for a block, but a series of engagements for the several villages which are parcel of the zamindari. The learned Judges in the High Court are of opinion that the engagement was for the block, and that it was only intended to enumerate the villages which paid revenue. (The judgment then dis cussed the kabuliyat in this case and several reports relevant to the question `and proceeded ) Presumption should not be made against but in favour of the exist ing state of things.
Their Lordships are, therefore, of opi nion, as indeed were both the Courts in India, that in the ordinary sense of the word these villages were not within the zamindari of the respondent, or, to put it in another way, both Courts hold that they were neither malguzari nor chowkidar chakran.
The High Court, however and this is the third point to be discussed - deci ded in his favour upon the theory that they were thanadari- lands. Whether it is right as a matter of terminology to describe thanadari lands as being within the zamindari or outside need not be here discussed.
No doubt the holders of thanadari land stand in a certain position to the contiguous zamindar. If the lands are resumed, they are to be settled with the zamindar, and it may be that they may even be described as settled with the zamindar in a certain sense and that there is a sort of superiority in the zamindar which might entitle him to the surface of the land in case of escheat. Whether this would give him a claim to the minerals is a further question. (His Lordship then, while discussing the view taken by the High Court on the point proceeded.) But the learned Judges of the High Court took the view that thanadari lands, though made resumable, were not always resumed. This view is a difficult one to support in the face of the observations of this Board in the cases of Raja Lelanund Singh Baha door v. Bengal Government (4), Joykishen Mookerjee v. Collector of East Burdwan [1863-66] 10 M. I. A. 16 : 1. W. R. 26 : 1 Suther. 542 : 2 Sar. 54 (P.C.) and Ranjit Singh v. Kalidasi Debi [1917] 44 Cal. 841 : 44 I. A. 117 (P.C.).
But a further difficulty is created by the documents in this particular case.
Mr. Leslie, the Collector, reporting in August 1793, says that at the making of the decennial settlement in his dis trict, no allowance was made for police officers to any of the zamindars except the Pachete Raja who got a deduction from his revenue of Rs. l,662 for the maintenance of thanadars. Mr Leslie proceeds to say that he has directed the Raja to discharge the thanadars employed by him at the end of the present month and to pay to the re venue Rs. 1,662, which it is known he did pay. The sum is slightly differently stated by Lala Kanji as Rs. 1,600.
If these lands were thanadari, why have they not been long ago resumed ? If they had been resumed, Government would have acquired an increase of revenue from the Raja, and the Raja would have been able to draw rent from the land.
As their Lordships have already ob served in dealing with the earlier part of the case the long established usage and possession is not reconcilable with the theory that these are thanadari lands.
In considering the effect of the kabuliyat the principles of the decision in the Duke of Beaufort v. Mayor, Aldermen and Burgesses of Swansea [1894] 3 Tax. 413 fortified by the observations in the judgments of this Board delivered by the Earl of Halsbury in Van Diemean's Land Co. v. Table Cape Marene Board [1906] A. C. 92 : 75 L. J. P. C. 28 : 93 L. T. 709 : 54 W. R. 498 : 28 T. L. R. 114, and by Lord Atkin son in Watckam v. Attorney-General of East Africa Protectorate [1919] A. C. 533 : 87 L. J. P. C. 150 : 34 T. L. R. 481 : 120 L. T. 258 may be ap plied. viz., that should the general words of an ancient grant be uncertain, they may be fairly explained by subsequent usage.
The result is that, in the opinion of their Lordships, these lands are not thana dari lands, and the District Judge was right on the first point to be decided, viz., whether these mouzahs were or were not within the Raja's zamindari. Having arrived at this conclusion their Lordships deem it unnecessary and in advisable to pronounce upon the other two defences raised by the several appel lants. The question whether mines and minerals belonged to landowners or to the Government is a far reaching one, on which they would be unwilling to embark without having the fullest assistance of counsel.
In a case which came before this Board several years ago, the Imperial Japanese Government v. The P. and O. Steam Navi gation Company [1895] A. C. 644 two points of great public importance were raised by the decision of the Court under appeal, and their Lordships having come to the con clusion that they must advise His Majesty to reverse the decision of the Court below on the first ground abstained from expres sing any opinion on the second ground, while they carefully explained that in so doing they were not to be held to have given any authority thereby to that part of the decision which they did not touch. Their Lordships would desire to be under stood to be acting in the same way in the present case.
The respondent has failed to prove that he has any right to the minerals under those three villages and the decision of the High Court must be reversed and that of the District Judge restored. This is all that their Lordships have to do. They have not to determine, as between the two sets of appellants, which is entitled to the mines, nor who is entitled to them.
The appeals will be allowed with costs here and below for both sets of appel lants ; and unfortunately provision must be made for the costs of the abortive hearing in December 1924. On that occasion, owing to the misconduct of the solicitor then acting for the respondent, he was not represented : and it was not till after their Lordships had heard the appellants' counsel for several days and the arguments had been concluded, that it was discovered that the absence of counsel for the respondent at their Lord ships' Bur was due to the misconduct of his solicitor.
The case has accordingly been set down again and heard a new. As it was due to no fault of the appellants that the res pondent was not represented at the first hearing, they must have the costs of their attendance at that hearing. But their Lordships think that the respondent need not be charged with the costs occa sioned by his motion to restore his case to the paper, and that in respect of this motion which was heard on two occasions, each party should bear his own costs. Their Lordships would humbly advise His Majesty accordingly.
Appeal allowed.