Sir John Wallis.-

This is an appeal from a decree of the High Court at Patna reversing the decree of the Additional Subordinate Judge of Hazaribagh and decreeing the suit brought by the Court of Wards on behalf of the minor zamindar of Ramgarh for a declaration that the suit Village forming the Jagodih estate are an ordinary jagir of the Raj resumable on failure of the direct male line of the grantee, and are not a shamilat or shikmi taluk of the Ramgarh estate as recorded in the khewat or Record of Rights of the zamindari made by the Settlement Officer under the provisions of the Chota Nagpur Tenancy Act of 1908. The adjoining parganas of Chai and Champa, one to the north and the other to the south of the Barrakur river, form part of the Ramgarh zamindari in the Hazaribagh District of Chota Nagpur. The Jagodih estate is situated in Chai, and is one of several estates in these parganas which were recorded in the settlement as shamilat taluks, that is to say, taluks in which the talukdars or proprietors now pay the Government revenue to the zamindar instead of paying it direct to Government. Although this dependence is strictly limited, these estates have also acquired the name of shikmi or belly taluks, as being now in the maw of the zarmindar, who has sometimes been tempted to claim them as portions of his own estate held on jagir tenure and resumable in certain events. In recent years the question has assumed increased importance as affecting the ownership of minerals.

In this, as in the Barsote case, Surendra, Nath Karan Deo v. Kumar Kamakhya Narain Singh (1929), not reported at present, the Raja of Ramgarh is seeking to establish that this estate is held under him on jagir tenure. In the Barsote case the Board, agreeing with the Subordinate Judge, allowed the defendants' appeal and dismissed the 'suit on the ground that as no suit had been brought in the revenue Court to rectify the entry in the khewat, that entry under S.87, Chota Nagpur Tenancy Act, was to be presumed to be correct until it was proved to be incorrect, and the plaintiff had failed to discharge the onus imposed upon him, In this case also the plaintiff is subject to the same onus, and the question before their Lordships is whether the appellate Court was right in holding on the evidence before them that he had satisfactorily discharged it.

It is alleged in the plaint that Maharaja Bishun Singh, the proprietor of the Ramgarh Raj, which Comprises several parganas including pargana Chai, granted certain villages, including the suit villages, in jagir to Raja Lall Khan, the predecessor-in-interest of defendants 1 and 2 under a patta of 1762. No rent, it is stated, was fixed at the time of the grant, but it was fixed subsequently at Rs. 656-12-0. and a, kabuliyat dated Kartek Sudi-1839, Sambat (1782), was taken from the said Raja Lall Khan. It was further pleaded that the question whether the estate was a jagir was raised in a suit between the predecessors of the parties in 1792 and was decided in the affirmative, and that the question is now res judicata

The principal written statement was filed by Rai Debender Chunder Ghose, the father of the appellant hero, and other defendants claiming as transferees form Hira Khan, a former owner of the Jagodih estate. They denied that the taluk Jagodih was a tenure created by the proprietor of the Ramgarh estate, or formed part of it, and alleged that it has been in existence since the time of the Mahomedan Emperors and that since the country was taken by the British it has been a shamilat or shikmi taluk and consequently not resumable. The owners of the taluk have never paid rent to the proprietor of Ramgarh, but at the time of the settlement made by the British it was arranged for purposes of convenience that the revenue payable for the taluk or Raj Jagodih should he paid through the proprietor of the Ramgarh estate. It was also denied that the judgments relied on by the plaintiff operated as res judicata as regards the question raised in this suit.

After a very lengthy hearing and a full consideration of the judgments of the Courts below, and the arguments of counsel here, their Lordships find themselves in agreement with the conclusion of the Subordinate Judge that the plaintiff has failed to prove that the entries in the khewat are incorrect.

There is a strong body of evidence in support of the defendants' ease that the suit villages form part of the ancient zamindari of Jagodih in pargana Chai of which Lall Khan, the alleged grantee of the jagir, and his ancestors for many generations, had been the proprietors, though in the troubled times which preceded the grant of the diwani to the East India Company in 1765 they were often forcibly dispossessed by the Rajas of Ramgarh, and eventually only succeeded in retaining or regaining possession of the 21 Villages which were their zamindari nankar, that is to say, lands which as zamindars they were allowed to hold revenue-free in the usual way as remuneration for their services.

That Lall Khan and his ancestors from 1719 onwards, long before the alleged grant of a jagir to him in 1762 or 1763, were recognized as the rightful zamindars or talukdars of Jagodih by the ruling power is clearly shown in the report made in September 1771, by Maharajah Shitab Rai to the Board of Revenue, which contains an account of the parganas of Chai and Champa from 1719 to 1769 Shitab Rai was placed in charge of Berar including Chota Nagpur, by Lord Clive in 1765, and so continued until 1779.

The report begins by stating that Raja Megar Khan of Jagodih, had paid revenue to Government and when Khandar Khan, the Raja of Narhut and Samoy, rented these countries, Megar Khan had always paid the revenue to him. In 1719 Megar Khan was murdered by the then Raja of Ramgarh. The rest of the report shows that the Raja of Jagodih and the other Rajas of Chai and Champa were again and again forcibly dispossessed by the Rajas of Ramgarh and were restored by the armed intervention of the Nawab and the renters under him. In 1762, Boally Khan, a kinsman of Cassim Ali, the new Nawab, defeated Raja Bishun Singh of Ramgarh and put Lall Khan of Jagodih and the other Chai zamindars in possession of their zammdaris, but as the report says, they only enjoyed their heritage for six months and were again dispossessed by Bishun Singh. It was admitted by Lall Khan in the 1792 suit that he was dispossessed of his malguzari or revenue-paying lands in 1762, and it was found to be proved that he had never afterwards been restored to them.

This brings the narrative down to the alleged grant by Bishun Singh to Lall Khan of the suit villages on jagir tenure. The plaintiff has filed an alleged duplicate of a sanad of the year 1763, not 1762 the date given in the plaint, and also a copy from the record in the 1792 suit which contains certain additional figures which have not been satisfactorily explained. It purports to be a patta granted by Bishun Singh to Lall Khan in respect of villages yielding an income of Rs. 1, 500, but in terms is only a grant of five villages in the adjoining pargana of

Champa, yielding Rs.752. The live villages are entered as baiswan, which is said to be equivalent to jagir; and even as to these, it is not shown that the patta was ever acted on. Assuming that it was intended that the income of those five villages should make up with the income of the Jagodih nankar or unassessed villages which were to be left in Lall Khan's possession, an income of Rupees 1,500, it is not shown that Lall Khan or the other Chai Rajas with regard to whom similar pattas have been exhibited executed kabuliyats agreeing to hold the nankar lands which formed part of their ancestral zamindaris on jagir tenure under the Rajas of Ratngarh. It seems most improbable that they did so and the evidence shows that they never ceased striving for the restoration of their zamindaris.

Bishun died about this time, and was succeeded by his brother Makund Singh, who was the Raja of Ramgarh in 1765, the date of the accession of the East India Company, and the following years. The difficulties experienced by the Company at this time in getting in the revenue and the measures they adopted, such as setting aside the old zamindars who were in arrear and granting pattas to strangers, are matters of history. It is only material to note here that when the zamindars were set aside, they were commonly allowed to remain in possession of their malikana or allowance including their nankar or revenue-free villages.

In the years immediately following, the revenues of the Chota Nagpur plateau, including Ramgarh, were again rented by Khandur Khan, the zamindar at the foot of the hills, and by his son after him but they failed to collect the revenue from Makund Singh or to restore the Chai zamindars, as ordered by the Company. Shitab Rai states at the end of his report, that in 1769 Captains Goddard and Camac were sent to collect the revenue and Makund Singh was reduced to submission. The report stops at this point, and the next evidence is that in 1771 Makund Singh was granted a patta for Chai and Champa at a jama of Rs. 9,501 and in September 1772, a three years' patta for Chai, Champa and Ramgarh at a jama of Rs. 27,000 as well as separate settlements for Palmanau and Chota Nagpur. None the less, a few months later he was again in rebellion, and was put to flight by a military force under Captain Camac; and Tej Singh, a member of the senior branch of his family who had joined forces with the Company was installed in his place.

It was apparently with reference to the period of Tej Singh's accession that Lieutenant Robertson, in his report on the land tenures of Hazaribagh, prepared in 1876 for the purposes of the Statistical Survey of India, stated:

"that the Raja of Chaif endeavoured to get settlements made with them direct, but their efforts failed, and, though they were maintained, each in bin Raj they were directed, to pay their tribute, which was then converted to a fixed rental, to the Ramgarh Raja. The Rajas of Rampur, Jagodih, Purona and Ikthori accepted those terms and have been made shikmi talukdars."

That this is what was intended appears from the letters exhibited from the record in the 1792 suit, but, as already stated, Lall Khan only obtained possession of his nankar villages. In a letter of the year 1773, Tej Singh stated that he had stated that he had sent to Captain Camac and made all possible efforts to have the case of the Rajas of Chai taken up, and that, when the tilak of Raj or robe of investiture was conferred upon him, he promised that he would give the Raj to all the three Rajas, and would receive the proper amount of rent from them and would pay it to Government. If this had been done the whole of these estates would have become shamilat taluks of Ramgarh.

There is a letter of about the same date from Captain Camac to Raja Lall Khan of Jagodih and the other Chai Rajas stating that he had been under the impression that they were already in enjoyment of their heritage, and that he would be glad to see a settlement of the revenue made with them, but that, if not, they would have their malikana, which would, of course, include the nankar of revenue-free villages which are the subject of this suit.

That they did, in fact, get possession of their nankar or revenue-free villages, and held them as such and not in jagir as contended for the plaintiff, appears from the letter of Tej Singh's successor Paranath Singh in 1777. In it he states that the hukmi of the nankar villages, then held by Lall Khan, had always been remitted and there was to be no interference with this. This letter is really destructive of the plaintiff's case that the suit villages were in possession of Lall Khan, not as his old zamindari nankar, but as a jagir granted to him by Bishun Singh.

Further : the evidence shows that four years later these villages were assessed by the Government as nankar. As the Subordinate Judge has pointed out, it was the policy of the Company, afterwards embodied in the Permanent Settlement Regulations, that these nankar lands were no longer to remain free from assessment, but were to be annexed to the malguzari or revenue-paying lands. There is a letter of 5th December 1781, from the Collector, Mr. Chapman, to Lall Khan and a fellow Raja, stating that he had appointed Lala Subun Rai to collect one-fourth of the jama of their villages, and that they were to pay him this one-fourth and appropriate the remaining three-fourths for themselves. In imposing this very light rate of assessment, the Collector was obviously giving effect to the Company's orders for the assessment of the nankar lands. It is unnecessary to refer in detail to the other letters, which show that at this time it was in contemplation to restore the Chai Rajas to their malguzari or revenue-paying lands as well, as they are not the subject of the present suit, and these letters are the only evidence that their title was recognized.

That the Jagodih Raja never paid the Raja of Ramgarh in respect of these villages more than the amount of the nankar assessment imposed by the Collector, is shown, in their Lordships' opinion, by the ekrarnama or deed of settlement of 1786, in the suit brought by the Raja of Ramgarh against the Rajas of Jagodih and Rampur for one-fourth of the malguzari of the villages held by them, which is the amount of the assessment imposed by the Collector. Under the compromise the Jagodih Raja was to give the Raja of Ramgarh possession and enjoyment of six of his 21 villages. The six villages are expressly stated to be equivalent to a one-fourth share and the 15 villages retained to be equivalent to a three-fourths share. It is further stated that the khamil jama or estimated profits of the six villages surrendered to the Raja was Rs. 655-8-0, and this figure is practically identical with Rs. 656-12-0, the amount of the hukmi or rent in the bond alleged by the plaintiff to have been executed by the Raja of Jagodih on 21-10-1784. In their Lordships' opinion this evidence goes to show that all the Jagodih Raja was liable to pay Ramgarh was the amount of the assessment imposed by the Collector on his nankar villages as to which both title and possession were in him, and consequently that the tenure was not jagir but shamilat.

For the plaintiff strong reliance is placed on the fact that in the hukmi bond the suit villages are described as jagir. Mr. De Gruyther for the appellant has cited authority to show that the term "jagir" was sometimes applied to nankar. Even if it were not, the use of this term in this document, which was executed by someone else on behalf of the Jogodih Raja, is at most evidence of an admission which in their Lordships' opinion is of very small evidentiary value in view of the rest of the evidence. Nor do their Lordships attach any weight to the circumstance that in a report submitted by Mr. Leslie, the Collector to the Board of Revenue in 1788, Lall Khan was entered as a jagirdar holding 15 villages with a khamil jama of Rs. 1,982 and as paying two annas per rupee on the khamil jama. The report gives these particulars with regard to a very large number of estates in the zamindari and was no doubt intended to show the collections of the zamindari with a view to the decennial settlement which was in preparation. The entry was probably drawn up from statements furnished by the Raja of Ramgarh, and it is not shown that the Raja of Jagodih had any notice of them.

With regard to this part of the case, it is only necessary to add that it is well settled that if the Jagodih Raja was the proprietor of these nankar villages, his title was unaffected by his estate being included in the permanent settlement or any of the previous settlements with the Raja of Ramgarh : Juggutmohince Dossee v. Sookhemony Dossee, [1871] 17 WR 41=10 BLR 19=14 IA 289=2 Suther 512=3 Sar 23(PC), and that his failure to apply as such proprietor for the separation of his estate under Regn, 8 of 1793 within the time limited by S. 14, Regn. 1 of 1801, merely deprived him of the right to separation as the section expressly left his other rights unaffected.

Lastly, their Lordships desire to say that where, as in this case, there is a controversy as to the meaning of such words as hukmi, malguzari, jama and the like, which may mean rent or revenue, it is desirable that the word used in the vernacular should be inserted in brackets after the English rendering, so as to assist the Court in determining which meaning is applicable in the particular case. As regards the only remaining question, their Lordships are unable to agree with the appellate Court that the issue in this case is res judicata by reason of the judgment of the Court of Sudder Dewany Adalat, in the suit of 1792, between the then Rajas of Jagodih and Rampur and the Raja of Ramgarh. When that suit was instituted, the Jagodih plaintiff had been in possession of the Jagodih nankar lands for some 20 years, and had no grievance about them. On the other hand, he was out of possession of the malguzari or revenue-paying lands of the estate. The plaint states that the Raja of Ramgarh was in possession of the milkiat and malguzari rights, Rs. 6,501, besides the zairats (home farm lands), "which is the old jama of the five mahals," and prays that their then milkiat and malguzari rights may be restored to them. The old jama was the jama of the malguzari or revenue-paying lands, and did not arise out of the nankar. In these circumstances, their Lordships are unable to agree with Mr. Upjohn's ingenious contention that the plaint must be read as asking not only for relief in respect of the malguzari lands, but also for a declaration as to the nankar lands which were already in the plaintiffs' possession. Still less can they agree with the contention that the plaintiffs might and ought to have asked for such a declaration, a relief scarcely known in those days, so as to bring them, within the operation of Expln. 4, S. 11, Civil PC. Even now failure to sue for a declaration in no way bars a claim for substantive relief when it arises.

As was usual, the plaint set out the documentary and other evidence on which the plaintiffs relied in proof of their titles, and mentioned their possession of the zamindari nankar as part of such evidence. This was met, on the other side, by a denial that they had any such nankar, and an assertion that their villages were held on jagir tenure.

If the merits had been gone into, this question might have had to be investigated, but all the three Courts held that they were precluded by S. 14 of the Regulation of 1793 from going into the merits, because as stated in the judgment of the Court of Sudder Dawany Adalat, the plaintiffs-appellants had

"admitted that they were out of possession of the zamindaris claimed by the plaintiffs before the accession of the East India Company, and it has been proved by the evidence of the witnesses that they never got possession thereof since then."

In their Lordships' opinion, this judgment cannot be read as giving rise to any plea of res judicata with reference to the nankar lands. In the result, their Lordships are of opinion that the plaintiff has failed to discharge the statutory burden imposed on him, and that the appeal should be allowed, the decree of the High Court reversed, and the decree of the Subordinate Judge restored, and they will humbly advise His Majesty accordingly. The respondents must pay the appellant's costs throughout.

Appeal allowed.