Jwala Prasad, J.:— After stating the facts, as set out above, proceeded as follows:—

Before dealing with the substantial questions in this appeal I shall refer briefly to the less important issues.

On issue No. 3 it was contended by the learned Government Pleader that the Civil Court has no jurisdiction to restore a ghatwal to his service, and as the land is merely an appanage of the service, possession cannot be restored either. This is a suit for the recovery of possession of land and the Civil Court undoubtedly has jurisdiction to investigate the claim. The Civil Court will not, it is true, appoint a ghatwal [Hemendra Nath v. Upendra Narain]. But it is bound to decide, when the question is raised, whether the land of which possession is claimed has been rightly taken away from the plaintiff or not.

On issue No. 4 the learned Government Pleader contends that the sales at which the plaintiff purchased the tenure and sub-tenures in suit were irregular and fraudulent. The learned District Judge has considered this question fully. It is unnecessary to discuss it now for this reason that the defendants 2 to 11 who were entitled to raise the question have not appeared in the appeal to contest the finding of the District Judge. It is, in my opinion, not open to the Secretary of State to question the sales which were held by his own agents. Further these sales have never been set aside and even if they were irregular they were not a nullity and must therefore stand [Malkarjun v. Narhari].

On issue No. 8 it was claimed by the learned Government Pleader that the suit is barred under Article 14 of the Limitation Act by one year's limitation and under Article 91 by three years' limitation. As already stated, this is a suit for the recovery of land and the period of limitation is unquestionably twelve years.

On issue No. 10, the contention of the defendant is that the order dated the 6th March 1916, by which the plaintiff was permitted to withdraw from his former suit with liberty to bring a fresh suit on the same cause of action was not in accordance with law. That, however, is immaterial. The Court had jurisdiction to pass the order which has never been questioned and must therefore stand. [Rajkumar Mahta v. Ramkhelawan Singh].

I shall now turn to the substantial questions in the case: the nature of the tenure and sub-tenures in suit: the nature of the estate which the plaintiff obtained by his purchase; and the propriety of the plaintiff's dismissal and its consequences.

A large number of reports by Government officers and correspondence on the subject have been filed: some on behalf of the plaintiff and some on behalf of the defendants. These constitute the bulk of the evidence in the case and they have swelled the record to an enormous size.

As observed in the case of Raja Muttu Ramalinga Setwpatti v. Periamayagum Pillai, in connection with the reports made by Collectors under the Madras Regulation VII of 1817, they are not to be regarded as having judicial authority where they express opinions on the private rights of the parties, but being the reports of public officers made in the course of duties and under statutable authority, they are entitled to great consideration so far as they supply information of official proceedings and historical facts and also in so far as they are relevant to explain the conduct and acts of the parties in relation to them and the proceedings of the Government founded on them. I shall therefore refer to them to see how far they throw light upon the origin and incidents of the tenure in question.

The investigation as to the nature and incidents of the tenure involves going briefly into the history of pargana Barabhum appertaining to Manbhum in which the tenure is situate, as gathered from the reports and the correspondence of the Government officers.

Manbhum including Barabhum was attached to Chakla Midnapur and included in what was then Orissa as coded in 1765 to the East India Company. From 1765 to 1805 the estates now belonging to Manbhum were attached some to Birbhum and some to Midnapur. In 1805 paraanas Barabhum. Manbhum and Patkum which contained the bulk of the ghatwali tenures in the district were incorporated in a newly established district known as the Jungle Mahals for which a special Regulation was enacted and they continued to form part of the Jungle Mahals, until the passing of Regulation XIII of 1833 in which year they together with others were placed under an officer called the Agent to the Governor-General for the South-West Frontier [Exhibit Z(63), Munshi Nandji's report of 5th November, 1833].

Barabhum is to the west of the Jungle Mahal district bounded on the west by Patkum, on the southwest by Singhbhum, on the south by Dalbhum, on the east by a small jagir of Kolapal and Manbhum, and on the north by Panchet and Baghamandi. Mr. Dent in his report to the Government (Exhibit Z-56), dated 1883, describes Manbhum as follows:—

“Its average length from east to west is about 26 miles by 24 miles from north to south” which comprises “the more open and cultivated portions in the interior of the estate, and 10 ghats or divisions which entirely surround the estate. The principal of these are Dhadka which adjoins Koilapal and Tampara in Dalbhum; to the westward and adjoining Dhadka is Saturkhani which protects the estate against Dalbhum; to the westward of this is Panchsardari which guards that side against Singhbhum and Patkum; and to the east of Panchsardari, is Chat Tinsuiya, which secures the estate against Packet; the others are smaller ghats on the tide of Manbhum.”

The geographical position of Barabhum rendered it peculiarly liable to attacks from outside, particularly by the Maharattas and consequently the ghats or passes that surround it had to be strongly guarded.

According to Dent:

“Each of the ghats is held in jagir at a mere nominal rent by a sardar who is the captain of the border or Lord of the Marches and a certain number of followers called ghatwals who were the old military fores of the country, and whose duty it was to protect the estate from the predatory incursions and inroads of their neighbours. Kt the settlement of the Jungle Mahals, the ghatwals were allowed to remain in possession of their lands and became the police servants of the Government. They were the chief factors in the recent disturbances.”

Mr. Strachey calls Barabhum the wildest and most remote of the Jungle Mahals (Exhibit 4, dated 13th April, 1880) and it was with no little difficulty and trouble that the Chiefs of the Jungle Mahals were reduced to some degree of subordination.

Firminger in his introduction to the Fifth Report at page 128, says that soon after establishing themselves at Midnapur the English discovered that to the westward there was a large tract of country which although within the boundaries of the provinces was in the hands of zamindars who had paid little or no revenue at all since the time of the Mahratta troubles when Ali Verdi Khan was the Nawab. Therefore at the beginning of 1767 Captain Graham despatched John Fergusson on an expedition, the object of which was to bring the zamindars of these jungles or western districts to order. These Jungle Chiefs were a sort of “rebellious freebooters” and their subjects “Chuars” bred up as much for pillaging as cultivation. On the other hand, says Firminger, the English officer had to be careful:

“lest his own soldiery might not prove a weightier grievance to the country in general than those freebooters.”

To the same effect is the account given by Mr. Coupland in his Gazetteer, pages 55, 56 and 57. Speaking of Barabhum, he says that there were frequent expeditions and military operations between 1767 and 1832 to reduce it to order.

Mr. Higginson, in his letter to Warren Hastings (Exhibit 2), dated 22nd November, 1776, the earliest document of the settlement of the Jungle Mahals on the record, says that he:

“formed a fixed settlement with all the jungle zamindars……… and formed the jama entirely upon the bandobast of the last and preceding years excusing only the kasad or increase,” inasmuch as he thought it prudent to deduct it in order to begin by showing an example to the zamindars that Government's intentions were not founded on any other plan than to establish a certain reasonable tribute from their frontier zamindars on conditions of their living peaceably, and becoming; faithful subjects,” and says Higginson “I Have the pleasure to tell you that when I made known to them the above sentiments they were unanimously pleased and satisfied with the settlement and conditions to be observed which I had proposed to them, so much so that I flatter myself unless un for seen revolutions happen to change the face of affairs, I do not believe that there will, in future, be occasion for the assistance of a single sepoy in any of the sixteen zamindaris which I have settled.”

The revenue fixed in 1776 in the case of Barabhum was Rs. 829-15-9 sikka, equivalent to Rs. 885, which is the exact amount of the present Government revenue (Gazetteer, page 191).

Mr. Higginson enclosed in his report the articles agreed to by the zamindar of Barabhum and the other zamindars under Thanas Balrampur and Jaunpur in the province of Midnapur, article 3rd of which runs as follows:—

“That we do likewise bind ourselves not to plunder the frontier parganas adjoining to our several zamidaries and if anyone of our Chuars should contrary to our agreement and will, commit any depredations, we will deliver them up for punishment to the tahsildar stationed at Balrampur, etc., in order to be tried by the Fauzdari of Midnapore.”

The pargana of Manbhum was settled with Raghunath Narain Singh, zamindar of the pargana, at a jama of. Rs. 829-15-6, per Decennial Kabuliyat (Exhibit 1), dated the 16th April, 1791, for ten years 1187–1206 (1790–1799). In it the zamindar covenants:

“I shall guard the boundaries in such a way that travellers and traders may travel without fear. I shall not harbour within the limits of my land, any thief or dacoit—God forbid. If there be any theft, dacoity or loot (plunder) of any property to any person, then I shall produce under orders of the Criminal Court the thieves and the dacoits with the property stolen.”

This settlement was declared to be permanent by Regulations I and VIII of 1793.

The jama was fixed at a lump sum without allotting it amongst the villages of the estate, as was done in the zamindari of Pachet, by way of tribute on condition (as Mr. Higginson says) of the zamindars living peaceably and becoming faithful servants of the Government in the furtherance of the intentions of the Government and in view of the disturbed condition of the pargana.

Coupland in his Gazetteer, page 229, mentions the Quinquennial Register of 1197, which synchronizes with the Decennial Settlement Kabuliyat, Exhibit 1, filed by Raja Raghunath Narain Singh. Copies of these registers for the years 1795–1796 to 1800–1801 (Exhibit Z-105) have been filed in this case. They show the name of Raghunath Narain Singh, zamindar, in the column of proprietors with respect to Taluka Barabhum bearing No. 158. The register gives the list of 149 rent-paying villages with a jama of Rs. 829-15-9 as mentioned in the kabuliyat (Exhibit 1). The entry therein of Challania — village 13, jama Rs. 137-8-0 is said to correspond to what is now known as Panchsardari. The other tenures Dhadka, Saturbhani and Tinsuiya are similarly identifiable in the list. The list shows that these four tarafs then comprised 57 out of 149 villages in the estate.

Here we come across four principal tenures in Pargana Barabhum, Dhadka, Saturkhani, Tinsuiya and Panchsardari. We are concerned in the present case with Panchsardari.

Raja Raghunath Narayan Singh with whom the original settlement was made, died a short time before May 1798: vide letter of Mr. Earnest to William Couper (Exhibit Z-50) dated 10th April, 1800, and his son Ganga Gobind Narayan filed ekjai papers for 1205 (1798) and 1206 (1799), Exhibits Z(49) and Z(104) respectively. In the former, against mahal Bhumijani, sixty-four villages have been shown with an annual rent of Rs. 883, batta Rs. 59-3-0, dewani Rs. 51-11-0, total Rs. 993-14-0. In the latter, the jama of the four tarafs is stated to be Rs. 649, batta Rs. 89-8-0, total Rs. 738-8-0, out of which against Panchsardari the jama is stated to be Rs. 120, batta Rs. 17-8-0, total Rs. 137-8-0. This taraf has been entered in the names of Somer Singh and others.

The collection papers, called Tirij Jama Wasil Baki (Exhibit 3) for 1206 (1798–99) show the Bhumijani rental to be Rs. 649, batta Rs. 89-8-0, total Rs. 738-8-0 and the rental of Panchsardari Rs. 120, batta Rs. 17-8-0, total Rs. 137-8-0, as for all the four tarafs.

Agreeably to Government's orders of the 6th March, 1800, Mr. Strachey, Magistrate of the Jungle Mahals, invested the zamindars of the Jungle Mahals with the management of the police in their respective zamindaries and submitted for the approval of Government, by his letter of the 9th April, 1800, the rules which he delivered to each of the zamindars of the Jungle Mahals within which Barabhum was then included. In this letter he stated that all the zamindars were perfectly willing to enter into any engagements that may be required from them for the faithful performance of their duty as police officers and that he had issued publications inviting the pikes who had long wandered about the country and many of whom had become chuars for want of any other means of subsistence to come to Midnapur by the 20th April next and to take settlement for the pykan lands in the Jungles:

“upon the terms on which they formerly held them and that otherwise those lands would be given on the same conditions to other persons and never be restored to them.”

Rule 5 of the rules referred to above runs as follows:

“The paiks and all persons employed under the zamindars as Police Officers shall be subject to the orders of the Magistrate punishable by him for misconduct either by removing them from office, depriving them of their lands or otherwise according to the nature of the offence.” (Exhibit 1-48).

Mr. Strachey's report, Exhibit 4, shows that at that time Kishun Patra, ancestor of defendant No. 2, was the sardar of Panchsardari and that there existed bitter enmity and family feuds and dissensions between the minor sons of late Raja Raghunath Narain Singh, namely, Ganga Gobind Singh and Madho Singh. The former was the eldest son by the second wife; the latter was the younger son of his first wife or Patrani. The genealogy of the family is given in Mr. Dent's report (Exhibit 56) of 4th September 1833.

The dewan managed the estate for five months from 6th July, 1798 (Exhibit Z-50), when hearing that Lal Singh, a famous sardar, pike or chuar was coming to attack the town where the dewan lived he left it and only returned when he found that a strong detachment of regular sepoys had arrived there. The pikes and chuars in the pargana with their sardars backed one party or the other. Consequently the entire pargana was in utter disorder. This led to great disturbance, murders and other serious crimes said to have been committed by the sardars, their pikes, chuars and other followers. They have been described in Mr. Earnest's letter to William Couper, dated 10th April, 1800 (Exhibit Z-50), and he recommended that Ganga Gobind Singh, should be immediately proclaimed to be the rightful proprietor and a manager appointed on his part.

Mr. Strachey reported in his letter of the 13th April, 1800, to the Government the deplorable condition of the pargana and the lawlessness that prevailed which he attributed entirely to the nefarious conduct of the pikes and chuars whom he had described as having:

“committed for some years more depredations in the zamindari than perhaps all the rest of the Jungle Mahals.”

Both Ganga Gobind Singh and Madho Singh were brought under the Court of Wards and their two uncles were appointed their managers and thus the dissensions between the two factions ceased. About the sardars, pikes and their followers, he says:

“The sardar pikes and their followers are the persons who have borne the appellation of chuars. The sardars may be considered as the talukdars of Barabhum and they have commonly acknowledged the zamindar as their chief. Their ancestors have for many generations possessed the land at present occupied by them. They have, however, of late made very considerable encroachment and several causes have conspired to increase the number of their followers. They derive a large profit from contributions which they levy not only in Barabhum but some of them at a great distance from the zamindary.”

Referring to the police administration in the pargana, he says:

“In fact no effectual police whatever exists in any part of the jungles or ever could exist, except that which is kept up by the zamindars and sardar, pikes or chuars. A daroga never attempts to summon either a sardar pike or chuar or any of his people now, nor is obedience expected from them any more than from the subjects in the adjoining territory of the Mahrattas. Since the appointment of the present managers, the uncles of the two minors, which took place three months ago the sardars pikes have remained tolerably quiet. They do not at least lay waste the lands of the zamindar, several of them pay their revenue or peshoush and though they cannot, being most of them proscribed, attend the managers in person, or assist them with their pikes, they appear in some slight degree to respect their authority. It will be recollected, however, that a body of sepoys is stationed at Burrabhoom. I have invested the managers with the charge of the police in the same manner as the zamindars of the other jungle estates as mentioned in my letter of the 9th instant”

Continues Strachey:

“I hope what I have stated will be sufficient to convince Government that no tolerable police system can be established in Burrabhoom without the assistance of the sardars and that therefore unless they receive sanads as the zamindars have done empowering them to act as Police Officers they must be encouraged to make their peace with the zamindars Necessity alone impels me to propose a measure which I am of opinion ill contribute to the preservation of lives and possibly put an end to the distractions of the country: I mean the granting ??? or exempting from prosecution the sardar spikes of Burrabhoom prevailing upon them to come to a settlement with the zamindar and engaging them to defend the lands which they have so long been employed in desolating.”

The prosecution referred to therein is with respect to the atrocious crimes which they were said to have committed in the previous part of the report and which were the subject of enquiry.

The recommendations of Mr. Strachey contained in his letter of the 9th April were approved by the Government in its letter dated the 1st May, 1800, as an experimental measure, and with regard to Mr. Strachev's letter of the 13th April separate Instructions were issued by the Government regarding the zamindari of Barabhum, directing that:

“no retrospect should be had to the past conduct either of the zamindars or the sardar pikes of Barabhum”

and that the Government desired that the Magistrate would

“admit them all to the benefit of a general pardon under an express provision. However, that their conduct be unobjectionable in future and that should they recur to their former practices this pardon” was “to be considered as forfeited and of no effect.”

This correspondence is marked Exhibits Z(A8) and Z(50).

On 13th December, 1805, Regulation XVIII of 1805 was passed whereby the zamindars of the Jungle Mahals, including Barabhum, received sanads conferring upon them powers as police officers and requiring them to conform to the rules prescribed in that behalf by the Government.

On 3rd July, 1806, the Government by letter (Exhibit Z-51), vested in the Magistrate of the Jungle Mahals the appointment of the ssghatwals in the pargana of Bishunpore and generally in the several places in the Jungle Mahals subject to his jurisdiction whenever those offices should become vacant from death, desertion or any other cause.

The Government, however, decided that the rules with respect to the ghatwals might merit further consideration in any general arrangement which might be adopted with respect to that description of officers.

On 25th April, 1815, the Nizamat Adalat transmitted certain questions to be answered by the Magistrate of the Jungle Mahals relative to the ghatwali tenures and appointment to the office of ghatwal in the district under his charge. The Magistrate's reply is contained in Mr. Hoppner's letter of the 20th September, 1816 [Exhibit Z(53). It shows what were known to be the incidents of the ghatwali tenures in the Jungle Mahals to which the tenures in question appertain and the relevant portions are, therefore, referred to hereunder.

Mr. Hoppner says:

“From the information that I have been able to collect it appears most decidedly that the ghatwali tenure is not hereditary. The ghatwali lands are invariably in the possession of sardar ghatwals and their dependents or that of under-tenants on his or their part. It never occurs that the right of possession of ghatwali lands was vested in one person and the duties of the situation performed by another.” (Paragraph 4).

As to the appointment to the office of ghatwal, he says:

“There are no rules on record respecting the appointment to the office of ghatwal; neither is the son although of age entitled by absolute right to succeed the father………………………On the death or the removal of a ghatwal on account of infirmity or old age, and not on account of neglect of duty or other misconduct the son, if competent to perform the duties of the situation, has been appointed to the vacancy. When there was no male descendant of age, some other member of the family best qualified for the situation, has been selected as successor. If the ghatwal, however, has been dismissed from his situation for neglect of duty or other misconduct, the vacancy is filled up by the appointment of the most competent candidate for the situation. In the latter case, to appoint a son or other member of the family as successor would have a direct tendency to lessen the punishment intended by the dismissal of the ghatwal from the situation. This rule appears to me to be consonant to the custom of the district and perfectly unobjectionable.” (Paragraph 5).

As to the duties of the ghatwal, he says:

“The duties performed by the ghatwals are those of dependent police officers. While the sardar ghatwal has in some place the superintendence and control over all the ghatwals of the pargana, others have a more limited charge of some specific ghat, or of a particular number of villages. The dependent ghatwals are employed in the protection and escort of travellers from one village to another, in guarding different passes through the Jungles and in performing the usual duties of village watchmen. They have no other duties imposed on them for the maintenance of the police.” (Paragraph 7).

As to the remuneration of the ghatwals, he says:

“The sardars and dependent ghatwals are all paid in land belonging to the sardar ghatwal, and to each dependent respectively is also a fixed quantity of land allotted, and is in most cases and ought in all to be registered opposite the name of each person. For these lands the sardar ghatwals pay a fixed quit rent of revenue to Government, through the Assistant Collector of Burdwan in part of the pargana of Bishunpur and to the zamindar in the other part of that pargana, and to the different zamindars in their respective estates in the other part of this district.” (Paragraph 9).

The concluding words “in the other parts of this district” are comprehensive enough to include the ghatwals of “Barabhum.

As to the nomination and appointment of a successor to a qhatwal he reported:

“The different zamindars having charge of the police in their respective estates, as well as the zamindar of Bishunpur in reference to the ghatwals immediately dependent upon and paying revenue to him, have exercised the right of nominating a successor on any vacancy occurring in the situation of Sardar ghatwal reporting the same for the approval and information of the Magistrate.”

Accordingly he recommended that the zamindars under the control of the Magistrates should have the nomination of dependent police officers. As to the dependent ghatwals he reported:

“the right of nominating a successor was vested in the sardar ghatwal; the nomination and circumstances attendant upon it are reported for the approbation and information of the Magistrate.”

In accordance with the requirements of Regulation XVIII of 1805, under which the zamindars of the Jungle Mahals had to furnish lists of their police establishment to the Magistrate, the zamindar of Barabhum filed two ismnavisis: one in 1824 and the other in 1833 (Exhibits Z-68 and Z-69, respectively). These ismnavisis give the names of sardar ghatwals, sadials and tabedars, and the panchak or quit-rent payable by them, the jagir land and the amount of remuneration in cash, and the names of ghats. The following abstract from the ismnavisi of 1833 relates to Panchsardari:

Nikash Final adjustment of Jagir lands in Taraf Panchsariari, Pargana Barabhum, 1240-1838, A.D

Particulars Total number of Mauzas. Total Panchak Jama. Rs. Original Jajir villages … … 12½ 160 Rent paying lands (Villages) now held in addition to the original Jagir … 10¾ 160 23¼ 320 Dewani … … … … … 16 Sarkari … … … … … 4 Fauzdari … … … … … 4 344

(Snal.)

Signature in Persian characters.

“These ten villages and three-quarters are held on payment of the regular rent of Rs. 160 separately every year and the rent for the homestead land is paid separately every year and according to the custom of the country now rent is paid according to the pargana rate.”

(Snal) Elakadar Police.

It has shown two kinds of lands in possession of the sardar of Panchsardari: (1) original Jagir villages which ordinarily mean service tenure; and (2) rent-paying lands held in addition to the original jagir. The importance of this distinction, will appear later.

On 17th April, 1833, the Commissioner of, Burdwan Circuit reported to the Nizamat Adalat, in his letter (Exhibit Z-55), that the ghatwals received an allowance in land for their services and that the ghatwali lands consisted in some instances of whole villages and in others of parts of villages, and that adjacent to every village there were large tracts of jungles or waste lands and the ghatwals being a numerous powerful body of men were holding a vast extent of malguzari lands for which they refused to pay any rent to the talukdars on the pretext of their being ghatwali lands, and consequently he recommended that measures be taken for the purpose of enquiring into and determining all disputes between the landholders and the ghatwals and for defining the ghatwali lands in such a manner as might be best calculated to obviate the occurrence of future disputes between them. To the same effect is the report of Mr. Dent, Commissioner of Hazaribagh (Exhibit Z-56), dated the 4th September, 1833. In justifying his recommendations for surveying and defining the ghatwali lands, he went into the early history of Barabhum and referred to the disturbances caused by the, dispute between Ganga Gobind Singh and Madho Singh. He says that after Madho Singh became unsuccessful in his suit against Ganga Gobind Singh he became reconciled to him and carried on an extensive business of money lending and with merciless severity he enforced those claims, particularly against the ghatwals, and made them his inveterate enemies; he doubled the rents of the sardar ghatwals, particularly of the “four principal ghatwals”, which were very light owing to the nature of the tenure, by imposing additional tax and illegal cesses under various denominations, such as, mamuli, ghartaki (house tax), mangon, etc. This was naturally resented by the ghatwals. Ganga Narain Singh, a member of the junior branch of the family, seized this opportunity and with the help of a large party of ghatwals from Suturkhani and Panchsardari murdered Madho Singh on the 2nd April, 1832. This first act of oppression on the part of Ganga Narain Singh was quickly followed by others which led to a general disorder in which the ghatwals of the different ghats, including Panchsardari, were involved.

Mr. Dent then goes into the causes of these disturbances and attributes them mostly to land disputes and disputes about succession, and to abuses also of public servants.

As to the ghatwals, Mr. Dent says, they:

“are the zamindari police officers possessing extensive allotments of lands at a mere nominal rent. They are throughout loud in their complaints of encroachments of the zamindars and others and of the exactions and irregular demands to which they we subject. The subject, has, I observe, attracted the Government's notice, and the Commissioner of Circuit of the 19th Division has been instructed to enquire and report on it. It is of the most vital importance to the general peace of the district and the maintenance of an efficient police that these jagirs should not in any way be diverted from the purpose for which they were originally granted, either by fraudulent alienations of the ghatwals themselves or the encroachments of the zamindar and others which are now daily taking place. The most effectual mode of securing this object will be by causing them to be carefully surveyed and recorded, the occupants, extents, site of lands, and amount of rent payable being all specified. This cannot be commenced upon too soon.”

On the 24th August, 1834, Ananda Patra executed a kabuliyat (Exhibit Z-103) in favour of the Raja of Barabhum with respect to Taraf Panchsardari. The kabuliyat runs as follows:

“To Raja Sri Ganga Gobinda Narayan Darpa Saheb Deo, executed by Ananda Patra, sardar jagirdar.”

“This kabuliat (torn) is executed to the following effect—Excepting the khas mal lands for the Jagir lands of which I am in possession, under the old (arrangement), in your zamindari in Taraf Panchsardari, pargana Barabhum, I shall pay ungrudgingly, at your zamindari kutchery, as I have been doing (up till now), every year, month after month, according to the instalment fixed, the old panchak (rent) of Rs. 160, mamool Rs. 160, dewani Rs. 16, sarkari Rs. 4, fauzdari Rs. 4, in all Rs. 344, per annum. Besides this, I shall pay separately, year after year, as I have being doing (up till now), the lent for homestead land according to the hastabud. I shall also pay separately the money and britis, etc., that are payable to any person under the old (arrangement) and I shall pay: separately, and (new) impositions which may be made by muluksha (king of the country) from time to time, at the rate prevailing in the parganas. I shall honestly and properly carry out the orders which may be passed by Government from time to time. I shall act according to law. I shall do nothing illegal. If I do, I shall be answerable for the same. I, of my own accord, agree to pay the amount of rent, mentioned above, according to the old (arrangement) and willingly execute this kabulati ekrarpata. Dated the 9th Bhadra, 1241.”[1]

This is a conspicuous document. It shows, as does the ismnavisi of 1833 (Exhibit Z-69), that Ananda Patra, sardar jagirdar of Panchsardari, had been in possession of two kinds of lands, i.e, mal or ordinary rent-paying lands, and the lands appertaining to the tenure in question. The latter he describes as his “jagir land” and the rent payable therefor as “panchak” or quit-rent and this, he says, was under the “old arrangement.” Therefore the Jagir nature of the tenure on fixed panchak rent therefor is, according to him, the original incident of the tenure. The position taken in this kabuliyat by Ananda Patra does not seem to have been ever abrogated by him or his successors; rather it seems to have been throughout admitted and acted upon by all persons concerned. The subsequent disputes between the zamindar and the tenure-holders were only with regard to what lands actually appertained to the tenures and what lands were outside the tenures within the mal lands of the zamindar.

An instance of this is to be found in the rubkari (Exhibit Z-103), dated the 8th September, 1851, which contains important admissions as to the incidents of the tenure by the then holder thereof and is therefore set out in detail.

After the death of Ananda Patra, when his son Pawan Singh Patra succeeded, the Raja claimed certain lands in three villages of Panchsardari as appertaining to his mal lands and as having been given to Ananda Patra in lieu of his remuneration for services, describing him as his chapata or personal servant, and commenced an action before the Collector of Manbhum for resumption of the same by dispossessing Pawan Singh Patra and for their inclusion in the khas tahsil, the Raja at that time being a minor under the Court of Wards.

On 21st January, 1850, the opposite party (Pawan Singh Patra) filed a petition stating that the said mauzas did not appertain to the mal lands and that the entire ghatwali Taraf Panchsardari belonged to him as his ancestral jungle buri lands; that his ancestors enjoyed the same rent-free and ruled over the same; that after the assumption of power by the Government when the settlement of the revenue of the zamindari of the Raja was made Rs. 160 was fixed as the rent of the said taraf and that his great-grandfather Chaitanya Singh Patra and after him his grandfather Somer Singh Patra rendered services to Government and paid the said panchak rent to the zamindar and held possession over the said taraf. After the death of his grandfather, his father the late Ananda Patra was appointed to the said office and by rendering services to the Government and paying rent to the zamindar he was in possession of the same. Then when the Ganga Naraini disturbance took place in 1833 the former Agent, Mr. Wilkinson, and the Assistant, Mr. Nicholson, enhanced the rent to double the amount, namely, Rs. 320 and deducting therefrom Rs. 60 for saranjami (establishment) settled the rent of the said taraf at Rs. 260 the balance; and that in accordance therewith his father rendered services to Government, paid the rent and held possession over the mauzas of the said taraf, but that the sarbarakar (an officer of the raj) of the said pargana had illegally taken possession of some portions of the mauzas in his taraf and the landlord had been interfering with the trees, jungles, hasil lands, patit lands, jheels, bheels and tanks therein, whereas he was entitled simply to get rent, and that knowing that the opposite party would bring a suit for the same the landlord fraudulently brought the suit in question. The petitioner prayed that the papers regarding the decennial and quinquennial settlements might be called for from him and hence after going through the papers regarding the decennial and the quinquennial settlements, the ismnavisi and other papers, his possession over the ghatwali lands might be kept intact.

The rubkaries state that some papers were produced in the Court and others were not traced as most of them were alleged to have been lost during the Ganga Naraini disturbance, etc., and that the mukhtar of the zamindar submitted that from the papers on the record it could not be ascertained whether the said mauzas belonged to the applicant-zamindars as their mal lands or to the opposite party as the ghatwali property and consequently the matter could not be determined by a summary enquiry but should be left to be decided by a civil suit, and consequently the application of the Raja was rejected.

After the death of Pawan Singh Patra in 1852, his son Biswembhar Singh was appointed as ghatwal of Panchsardari in his place and a sanad (Exhibit Z-174), dated 11th October, 1855, was granted to him. The sanad recognizes the right of Government to appoint ghatwals and is quotea below in extenso:

“This is to inform Biswembhar Singh that your father Paban Singh having died in 1852, while employed as sardar ghatwal of Taraf Panchsardari in pargana Barabhum, you being his son and heir/were appointed to the said post of sardar according to the report of the elakadar police. But as you were a minor at that time, Chamu Sardar was appointed to act till you come of age. Now, you have appeared before the Court and on the identification of Pitambar, sardar Mukhtar, filed a petition praying that as you have attained your majority, the acting man may be dismissed and a sanad may be granted appointing you as sardar ghatwal of the said taraf. This having been put up before the Court along with the previous papers, the acting Chamu Sardar is dismissed and you are granted, this sanad to the effect that you shall honestly and properly perform the duties entrusted to you. Dated the 11th October, 1855.”

The rubkari of the Criminal Court of Manbhum (Mr. Persy, Sub-Assistant Commissioner), dated 3rd November, 1855 (Exhibit Z-175), shows that on the 18th August, 1846, Ananda Patra, grandfather of Biswembhar Singh Patra, had filed a petition stating that he was in undisputed enjoyment of 52 ghatwali mauzas after performing his ghatwali duties and on payment of the panchak rent of the mauzas to the raj sarkar and that he was himself making collections and realizations of sena jama, that the executor of the minor zamindar of the pargana was dissuading the tenants of the ghatwali mauzas from paying the said sena rent to the ghatwal and was realizing the same himself. He prayed that an order be passed prohibiting the said Hikim executor from realizing the sena rent. After the death of Ananda Patra, Biswembhar Singh Patra was substituted in his place in the litigation. The claim was resisted by the Raja stating that neither the ghatwal nor the sadials had any concern with the sena mahal and hence it was due to the Raja and that the former zamindar always realized the same, and that the present zamindar is accordingly realizing it. The rubkari states that from going through the parwana of 6th February, 1846, in the name of Ananda Patra, the rubkari of Haptam of 8th September, 1842, the registered kabuliyat exhibited by Ananda Patra in favour of Ganga Gobind Narain, judgment of the ghatwali case No. 38, dated the 6th July, 1850, copy of judgment in the said ghatwali case, dated 6th August 1850 and the Wasilbaki Jama papers of Taraf Panchsardari, and on consideration of the evidence of the witnesses it was decided that the sardar ghatwal had the power to make collections and realizations from the ghatwali mahal; that the zamindar was only entitled to his dues from the sardar ghatwal and that he had no power to interfere with the collections and realizations of the sena rent of the ghatwali mahal from the tenant. Accordingly a parwana was issued to the Raja defendant in the case.

The documents referred to in this rubkari have not been filed in this case, except the kabuliyat (Exhibit Z-103), dated 24th August, 1834, executed by Ananda Patra in favour of Ganga Gobind Narain.

In the first rubkari (Exhibit Z-103), dated 8th September, 1851, Pawan Singh Patra, sardar ghatwal of Panchsardari, admitted that after the assumption of power by the Government when the Permanent Settlement of the estate was made with the Raja, his ancestors rendered services to Government and paid panchak rent to the zamindar, and that Ananda Patra was appointed by the Government as successor to his own father Chhatar Singh. The name of Somer Singh mentioned in this rubkari as the grandfather of Pawan Sinsrh Patra was entered against Panchsardari in ekjai paper (Exhibit Z-104) of 1799–1800.

The second rubkari (Exhibit Z-175), dated 6th November, 1855, shows that Ananda Patra admitted in his petition that he held the ghatwali mauzas on condition of performing his ghatwali duties and on payment of panchak rent to the raj sarkar.

Both these rubkaries show that the dispute between the parties was not with respect to the incidents of the ghatwali lands, the services rendered by them to the Government or the right of the Government to appoint, or the panchak rent payable for the same; but was only with regard to the extent of the that and the ghatwali lands.

It should now be remembered that in the meantime the police duties were withdrawn from the Rajas of Manbhum under Regulation XXXIII of 1833, but the ghatwals were retained as the subordinate police officers as before, and the question arose as to the police administration of the pargana.

The Government, therefore, called for a report regarding the police powers exercisable by the zamindars in the province and the proposed amalgamation of the ghatwali and the new police with a view to legislative action in the matter. Colonel Dalton, Commissioner of Chota Nagpur, submitted several reports showing how the zamindars and the sardars and their subordinates came to exercise the police powers. In his report (Exhibit Z-60), dated the 9th December, 1864, he says that the Rajas of the Jungle Mahals of Chota Nagpur and the adjoining tributary estates were, under the ancient Government, chiefs generally, of the same race as the people they ruled and who originally elected them to fill their position:

“These Chiefs,” says Colonel Daltbn, “continued to exercise sovereign powers in their respective territories till the accession of the British Government. They were almost unknown to the former sovereigns of India; but owing to their positions geographically, tribute to the rulers of Bengal, Bihar and Orissa was paid or exacted from them. For many years under our rule great difficulty was experienced in reducing them to any kind of subjection and when this was effected it was considered necessary to treat these countries as exceptional tracts for which a peculiar administration was required. The revenue was fixed low with, out much investigation in regard to assets, but, as they contributed so little to the support of the estate and seem to thrive best on the system of self government to which they had been accustomed, if was determined when a police was organised, in other parts of the British possessions, and the zamindars were relieved of the greater portion of their responsibilities in regard to crime by Regulation XXII of 1793, to throw on these Chiefs the entire duty and risk of maintaining order in their respective jurisdictions, and in addition to the amount of fixed rent demanded from them they were required to execute engagements to provide for the safety of life and property, and rendering them personally responsible if in the event of a felony being committed on their estates they failed to arrest the criminal and cause the restoration of the property. It was thus that the principal Chief and in very large estates the most important of their vassals became hereditary police darogas, a position in which the Jungle Mahal Chiefs were confirmed by the passing of Regulation XXIII of 1805. Previously in the exercise of their sovereign rights they had been assisted, first by these great vassals and secondly by a large body of yeomanry, who in lieu of payments in cash or in hind contributed by others for the support of their Chief rendered service in guarding the roads and passes and in military or honorific attendance on the Chief himself. The yeomanry we now recognize in the fagirdars, sardars, ghatwals, digwars and tabedars to be presently noticed in detail.”

Colonel Dalton then refers to the Decennial Settlement at which engagements were taken from all the zamindars including those of Barabhum under which they bound themselves to keep watch and guard all roads and passes so that the travellers might in safety pass and no thieves, robbers, or murderers be allowed to reside in their jurisdiction. In addition to this, under the rules which were subsequently made law by Regulation XXIII of 1805 a separate engagement was taken from each of the Chiefs as he was invested with police powers. As the ghatwals, he says, were a large and organized body responsible for the safety of travellers in most difficult parts of the country, they were themselves the most influential of the inhabitants of those very tracts and if they were not themselves entrusted with the duty of watching it, it was probable that a very considerable force would be required to watch them. The sardar ghatwal pays a quit-rent and, if the emoluments of the ghatwals were resumed they would go but a small way towards paying the force it will be necessary to substitute. To protect the ghats and hill tracts properly by constabulary would require a large body of men and expensive accommodation. According to Colonel Dalton:

“the right of Government to the service due on them service tenures has always been exercised and never yet successfully contended against. They were never menial or mere personal services. They were military or police duties, and the chief ceased to exercise any sovereign powers—they could no longer claim them. The services became due to those by whom such powers were assumed or to whom they were delegated, that is the officers of the British Government, and the transfer is popular as it makes Government interested in resisting the encroachment of the once Chiefs now zamindars on the rights and privileges enjoyed by these hereditary servants of the estates and the emoluments of their office. It is further advantageous as detaching from the zamindars the services of the men they most relied on to support their illegal or arbitrary acts; it secures a remnant of the aborigines of India in the possession of the lands that their ancestors reclaimed and under better organization and superintendence would give us as good a detective police as we could have in the wild district they inhabit.”

In his letter of the 19th January, 1868 (Exhibit Z-45), to the Deputy Commissioner of Manbhum, Colonel Dalton suggested certain draft rules for the guidance of rural police, that is, of the sardars or digwars or other headmen of the rural police who might have assigned to them the local rank of sub-inspector or head constable.

In his letter of the 9th January, 1866 (Exhibit Z-45), to the Deputy Commissioner of Manbhum, Colonel Dalton suggested certain draft rules for the guidance of rural police, that is, of the sardars or digwars or other headmen of the rural police who might have assigned to them the local rank of; sub-inspector or head constable.

The last letter of Colonel Dalton is dated the 14th June, 1869 (Exhibit Z-62), to the Secretary, Board of Revenue. In that letter he says:

“The old ghatwals to whom the office has come down from ancestors in remote time, are descendants of the most influential of the original inhabitants, the men who claim to have made the Raja or Chief who is now in the position of their zamindar. They appear to be often regarded as people living in hill passes and out of the way places, but this is not the case, although a part of their duty may be to guard passes. The estates of the ghatwals of the Jungle Mahals are usually found in circles round the residence of the Chief. The sardars were the captains of the border or Lords of the Marches. The Captain was commandant of the ghatwals military force, all living in the villages of which he was nominal proprietor and holding their lands on terms of service. It was the business of these captains with their forces to protect the estates against predatory incursions of their neighbours, or, it may be at the bidding of their Chiefs to prey on their neighbours; some of them commanded large forces. The sardar of Panchsardari in Barabhum has under him 400 ghatwals, all like himself of the Bhumij tribe. The ghatwals in Manbhum are reckoned by thousands. Our first endeavours to effect a settlement of their country were resisted by them. They were the principal agents in all the disturbances, and when settlement of the Jungle Mahals was made they were allowed to remain in possession of their lands and become the police servants of our Government. Thus it was that the military services were changed to police services. These men might have a difficulty in now proving the precise nature of their tenure, but there can be little doubt that in most cases their right is derived from the first clearers of the ground anterior to or co-aeval with that of their chief. The last disturbances in Manbhum were in 1833. On their suppression the ghatwals were re-established as police subordinate to the zamindar who was the head police officer in his own, estate and whatever success attended the economical system of zamindari police that remained in force till the introduction of the constabulary in 1862, is due to the influence, power, local knowledge and good service of the ghatwals. The new police were introduced ins 1862 without much reference to old institutions. They had stations and outposts all over the districts and the occupation of the old rural police was for a time in abeyance.”

Therefore Colonel Dalton introduced a scheme for the amalgamation of the ghatwali police with the new constabulary and thereby improved the efficiency of the force. The ghatwals did the work entrusted to them so well that no increase in the police force was deemed necessary. He was of opinion that the institution should be fostered, improved and preserved, and that the ghatwals felt that whilst doing their duty as Government servants they would have the support of Government against encroachments on their possession and so long as they were unmolested in their tenures they were willing, peaceful and energetic guardians of the peace. He desired that the draft rules he had already submitted for their organization and procedure should be embodied in a legislative enactment and that by a special enactment a special officer should determine the ghatwali tenures by demarcating the actual ghatwali lands. This was the view of Mr. Clay, Deputy Commissioner of Manbhum, contained in his letter of the 4th June, 1869, to the Commissioner of Chota Nagpur (Exhibit Z-61). Mr. Clay says:

“It seems useless at this time to discuss how these tenures were first created and what was the nature of the services originally rendered by the ghatwals. For the purposes of Government it is sufficient that the ghatwals in Chota Nagpur have always been held to be public servants, removable for misconduct with no power to alienate or in any way depreciate the value of their lands during incumbency and rendering police services in consideration of holding these lands, subject only to payment of a quit-rent to Government or the zamindar.” (Paragraph 2 of his letter).

In paragraph 6, wherein he advocates the advantages of retaining the ghatwals as rural police, he says:

“Instead of being virtually independent of the executive as the chaukidars, etc., who care little or nothing for dismissal, they are liable at any time to be evicted for misconduct and to be deprived of an estate that may have been in the family for generations. They have thus no strong temptation to dishonesty but every incentive to do their duty.”

The Lieutenant-Governor of Bengal recorded his minute (Exhibit Z-59) on the subject on the 18th August, 1876, of which the following is an extract:

“I consider it to be established that the ghatwals, or men of the passes were, originally a sort of militia employed by the Rajas of the Bankura country to protect the territory from incursions of Maharattas, of plundering hordes and others; and were chiefly, though perhaps not entirely, stationed on the main lines of communication which might, in a certain sense be called passes. For this service, lands, either rent-free or on a low quit-rent, were assigned to them, these assignments still exist, probably without much change, and are called ghatwali tenures. The theory and practice of the arrangement originally were to the effect, that the ghatwali office and its landed tenures were hereditary. Over the ghatwals there were originally headmen, something like militia officers, some of whom were called sardars and men with this designation and in these positions are still found. Besides, what would ordinarily be deemed militia duty, these men doubtless performed police duty although it may have been of on undefined character.”

Now to revert to the dispute between the zamindar and the ghatwals as to the extent of the ghatwali and mal lands.

Under the order of the Commissioner, Colonel Dalton, the first measurement and demarcation of the ghatwali lands were undertaken by the Thakbast Deputy Collector, Babu Rakhal Das Haldar in 1863–1864. This, however, proved abortive and was abandoned as the ghatwals wanted all the lands in their possession to be recorded as ghatwali (vide ??? report).

The next ghatwali survey in ??? was carried out in 1879, and the last survey was commenced in April, 1880, by the Deputy Collector, Babu Purnu Chandra Roy, and resumed on the 18th November by Munshi Nandji, who completed it.

Munshi Nandji made a comprehensive report (Exhibit 7-63) dated 5th November, 1883, of the result of his survey. Six hundred and ninety-three ghatwali tenures were discovered and brought under the survey operations, out of which 169 tenures were “demarcated at the instance of the ghatwals of parganas Barabhum and Patkum” who claimed to be in possession of them as ghatwali. After enquiry and settlement of dispute, 591 tenures were actually found to be in possession of the ghatwals.

Munshi Nandji dealt separately with the ghatwali tenures in the several parganas of the jungle Mahals because he found that the ghatwali tenures differed materially according to local custom. According to him the ghatwals of Surhat and Deoghar in the district of Birbhum, to whom the provisions of Regulation XXIX of 1814 chiefly applied, have 3, defined permanent interest in their lands, but those of Manbhum and Bankura do not seem to possess such interest. He quotes from Mr. Colman Maucaulay's “Memorandum on the Ghatwali Tenures of Bankura” in support of his opinion contained in paragraph 57 of his report which runs as follows:

“Although there has been no legislative enactment defining the position and conditions of tenure of the ghatwals of Manbhum there can be no doubt that the ghatwali tenures of Manbhum are neither transferable nor hereditary and that they differ in this respect from the tenures of the ghatwals of Bhagalpur and Beerbhum who appear to have a hereditary title to their lands. As a rule, however, the male heirs of the Manbhum ghatwals succeed to their father's post unless there should be some valid, objection to this order of succession. The heir usually gels a new Sanad of office and if he is a minor his relative or gurdian acts for him until he comes of age.”

As to the ismnavisis of the ghatwali lands filed in 1833 after Ganga Narain's rebellion, he was of opinion that they were:

“drawn up at the instance of the zamindars who proposed to give to the ghatwal ¼th of the land he was in possession of,”

but the ghatwals continued to be in possession of the entire ghatwali lands and of much larger areas than was shown in the ismnavisi, whereas several villages which were found during the survey to contain ghatwali lands did not appear in the ismnavisi. Therefore in accordance with the instructions of the Commissioner, all lands which were:

“proved to have been held for years by them (ghatwals) without dispute on payment of ghatwali panchak” were demarcated as ghatwali lands whether they appeared in any ismnavisi or not.”

In paragraph 67, he shows from an old village list that at the Decennial Settlement 149, villages were settled with Raghunath Narain Singh, ancestor of the Barabhum zamindar, with a revenue, of Rs. 829-15-9, out of which the four Tarafs Panchsardari, Dhadka, Saturkhani and Tinsuiya contained only 57 villages, Panchsardari having 13, but the number of the villages in these tarafs was found during the survey to have increased enormously, i.e, from 149 to 276. The villages of Panchsardari increased from 13 to 68, and this was due to the establishment of new villages or hamlets out of the asli mauzas. The zamindar, says Nandji:

“wished to settle these newly formed villages as mal villages with B the ghatwali holders and others,” and as he “was lording over the whole pargana both as a police officer and raja he had a peculiarly favourable opportunity for carrying his proposal into effect. In some villages in which he gained over the ghatwals he succeeded in turning the three fourths of the village into mal, but in others the ghatwals tenaciously clung to their rights and did not agree to pay him any additional rent for the three-fourth.”

Munshi Nandji says that Colonel Morton tried to settle the disputes by a distribution of villages of each taraf, giving some to the ghatwals and some to the zamindar without confining himself to any ismnavisi. The sardar ghatwals of the three tarafs, namely, Panchsardari, Dhadka and Saturkhani, then joined and made common cause with the zamindar in relying on the ismnavisi of 1833 and they called themselves shikmi zamindars alleging that all the lands in their tarafs were mal, excepting those entered in the ismnavisi of 1833 which only were ghatwali. The claim of the sardar ghatwal of Saturkhani of a shikmi right in the villages in his taraf was, however, dismissed by the Civil Court in suit No. 21 of 1870 on the 11th June, 1872. The judgment of this case is not on the record. Munshi Nandji quotes the following passage from the decision of Colonel Rowlatt:

“On the 2nd issue I find that Bhorat Singh (sardar ghatwal) has produced no documentary evidence whatever to prove that he holds Taraf Saturkhani or any portion of it as a shikmi zamindar; had it been such he could not have been dismissed as he was in the year 1867, and his witnesses admit that whilst he was out of possession the whole of the lands held by him were held by his locum tenens as ghatwali, but why they should do so they profess not to be able to account for. Two of them Baidya Nath Mahato and Ananto, Singh state distinctly that the lands of Taraf Saturkhani are all ghatwali and were held by Bharat Singh for the performance of police duties. In fact there is not the least particle of reliable evidence to show that Saturkhani is anything but a ghatwali tenure and as Bharat Singh has I consider entirely failed to prove that he holds it as shikmi tamindari or that any part of it can be considered to belong to him as such this point must be given against him.”

The Government was also made a party in that case. Nandji say that the condition of the other tarafs, Panchsardari, Tinsuiya and Dhadka being the same as that of Saturkhani the aforesaid decision should apply to the village in those tarafs also.

“Then” says Munshi Nandji “the sardar ghatwals are not in direct possession of all the villages comprising their respective tarafs. By far the greater number of the villagers are held by sadyals and ghatwals who have been in possession of them for generations subject to, the payment of ghatwali panchak to the sardar ghatwals. These ghatwals and sadyals candidly admit that the villages in their possession are ghatwali and that the right of the sardar ghatwals to them does not extend beyond the getting of the fixed ghatwali panchak. So here again the claim of the sardar ghatwal to hold the taraf as shikmi zamindari is proved to be utterly groundless by the statement of the subordinate sadyals and ghatwals.”

He then refers to the fact that the zamindar of Barabhum had let out his whole zamindari to Messrs Watson and Company and that it was said that he had promised to give them the above mentioned four tarafs as patni taluks if they could turn the ghatwals out of the lands held by them in excess of the ismnavisis. He says:

“There can be no doubt that Barabhum will be the not bed of litigation.”

In his opinion the zamindar's claim was groundless. In paragraph 94 of his report he says:

“The zamindar's allegation that these tenures are not entered in the Permanent Settlement and that no reduction of revenue was granted on account of them at the time of settlement is not, I think, entitled to much weight. I have shown in paragraph 53 above that the ancestors of the Bhumij ghatwals were the clearer of the soil. And in the words of Colonel Dalton ‘their tenures are the oldest in the country older than the right of their Chief.’ So it may be taken as an established fact that these tenures existed long previous to the Decennial Settlement when the zamindar was no more than a mere farmer or collector of Government revenue possessing no property in the lands every bigha of which belonged to the State. The Decennial Settlement papers are, however, not forthcoming. They were perhaps destroyed during the mutiny and in the absence of such records one is at a great disadvantage in forming an opinion on the subject. But my researches on the subject led me to a conclusion which is not favourable to the zamindar. I would first give below the form of kabuliat executed by the Barabhum zamindar and other zamindars of jungle Mahals in favour of Government, at the formation of Permanent Settlement by Mr. Higginson.”

The report of Munshi Nandji shows that the dispute between the zamindari and the a ghatwals had come to a head. Mr. Risley, Commissioner in charge of the Ghatwali Survey of Manbhum, 1883, was of opinion that these ghatwals were not ghatwals till after the Permanent Settlement. Mr. Hewett, Commissioner of Chota Nagpur, however, did not agree with this view, and was of opinion that:

“their holdings were ancestral properties dating from the time when the tribe to which they belonged took possession of the territory (Exhibit 1-158), dated 2nd November, 1883, paragraph 10.”

He agreed with Mr. Risley's suggestion for compromise and also as to the ismnavisis being reliable but was of opinion that they were imperfect, so that while the ismnavisi of 1833 might be taken as the basis of the compromise, the earlier ismnavisis and the present occupation or possession should not be disregarded and he was sure that Messrs Watson and Company would be as anxious as Government to deal equitably with all such matters. In paragraph 18, Mr. Hewett says:

“Whatever the original rights of the ghatwals may have been, there is no doubt whatever of the strong opinion they entertained as to their present rights………………They are only some degrees below those of zamindar, they are bound to pay to the zamindar their quota of state expenses, the payment made by zamindars to superior authority being one of the items of the account, and they are also obliged to render service both to the community and on behalf of the community to the Government as the authority superior to their zamindars but they consider themselves entitled to their legit mate profits for doing so.”

He says in paragraph 19:

“It is no less to the interest of the zamindar than to that of the ghatwal that this antagonism should cease. It is impossible that the affairs of so large an estate as Barabhum can be satisfactorily managed as long as a large and most influential section of the inhabitants is discontended and therefore the terms conceded to the ghatwals for the mal lands they hold in excess of the area to be demarcated as ghatwali should be most liberal…………If care is taken, which X am sure will be done, that the ghatwals are allowed their full pay and their statements carefully and fairly considered, I have no doubt that a compromise will be effected. The great fairness shown by Messrs Watson & Co., in the, recent: settlement of raiyati lands shows that the legitimate claims will be fully considered by them and equitable concessions made.”

The question of compromise was taken up, and.; Mr. Risley then submitted a note (Exhibit Z-64), dated the 19th December, 1883, and discussed at length ??? origin of the four tarafs, including taraf Panchsardari and the status of the persons who held them. He showed in his note that at that time 65 civil suits were already brought to set aside the survey decisions in Barabhum and 51 objections under section 12 were, pending, each of which would be followed up by a civil suit unless a compromise was arranged. Forty-four 1 of these suits were brought by Messrs Robert Watson and Company who had taken an ijara lease for 21 years of the entire pargana Barabhum which contained a clause in which the zamindars engaged to grant Messrs Watson and Company on very favourable terms the patni of the lands demarcated as ghatwali in excess of the ismnavisi of 1833 provided that they as ijaradars conducted the necessary litigation with the Government and the ghatwals and carried the suits up to the highest Court of appeal. He sums up his reason for the compromise in paragraphs 51 to 53 as follows:

“51. Turning again to the ekjai papers I think it likely that the entries under the head of Bhumijani Mahal refer solely to the bhuinhary lands of the tribe and that the sheet showing the paikan Jagir tenures hag been lost. On any other supposition it is difficult to explain the, double entry of rent end panchak in the ismnavisi of 1833 a document by which, as I read it, the zamindars and ghatwals in conference with and with the approval of the district officer, fixed the quantity of paikan Jagir land and the panchak to be paid for it and stated the quantity of rent paying bhumijani or bhuinhari land then held, with the rent paid for it. The whole proceeding was thoroughly in accordance with the custom of the Kols; who have, as has often been pointed out rather a genius for settling things by conferences. It was in fact a compromise such as Mr. Blunt suggested in the letter of 1833 already quoted. The reason of its failure as a permanent arrangement are tolerably obvious. It assumed that the sardar ghatwals would always be able to manage their own sub-tenants, and left the rights of the latter wholly undefined. It professed to determine the area of the Jagir lands but did so in impracticable terms in undivided fractions of the village cultivated area, in units of seed sown and in nominal cash payments computed into land. For the time, no doubt, it answered its purpose. It placed the paikan tenures virtually on the same footing as ghatwali tenures properly so-called, and secured Government from any such claims to these lands as have been established by the zamindars of those estates in Midnapore, which were settled by Mr. Higginson at the same time and on the same terms as Barabhum.

“52. The Barabhum question in its present form is perhaps more difficult than it was in 1883. Everything has become more complicated; land is more valuable; rights of all kinds are more vigorously insisted on; and the jungle, instead of being worthless, promises in a few years to yield a large permanent income. If all these questions go into the courts, we shall have some 800 civil suits by Messrs Watson ft. Co., against Government and the ghatwals followed up by an incalculable number of civil and rent suits by and against ghatwals of all grades. Criminal litigation will at the same time increase enormously, and all though no general disturbance is likely, there will be a good deal of rioting, and the regular police of Barabhum will have to be strengthened. For all these reasons it seems highly desirable to settle the whole group of questions by compromise in the manner suggested by Mr. Blunt in 1833.

“53. Under demi-official instructions from the Commissioner, I took up the matter, after making over charge of the district to Mr. Clay. On the 20th November I went to Barabhum, and met there Mr. Gregson, Manager of Messrs Watson ft. Co., the zamindar of Barabhum and all the chief sardar ghatwals, except Sarup Ganjan Singh, the bhuinya of Dhadka who held aloof. I had already drawn up an elaborate draft compromise. A translation of this was given to the ghatwals, and after six days of argument and discussion, during which some important modifications were introduced, the terms were finally settled. A stamped agreement was drawn up and was executed and registered subject to the approval of Government on the 26th November, by myself, the zamindar, Mr. Gregson, seven sardar ghatwals, and all the sadials and village sardars then present. As the original document was inconveniently lengthy, a second agreement was drawn up, engaging to be bound by the terms of the original agreement and this has been executed by all ghatwals, who were not present on the first day. Up to date the compromise has been accepted by seven sardar ghatwals, 113 village sardars and 75 tabedars. It was of course impossible to get together the whole body of 1.092 men at once, so I was compelled to take them as they came. The necessity of formally recording their agreement will be obvious to any one who has had any dealings with aborigines in matters concerning land. As Mr. Strachey remarked in 1800, ‘the nature of the inhabitants of Barabhum is such that I know it to be unsafe to rely upon their professions, and it is often extremely difficult not only to foresee but to account for their dissensions.’ If however, the terms proposed are accepted by Government, I have no doubt that all the ghatwals will readily agree to them. They have a great idea of the authority of the ‘Agent,’ the title by which the Commissioner is still known in Barabhum.”

A copy of the compromise referred to above was annexed to Mr. Risley's note.

With a view to settle their disputes expeditiously the parties executed a registered ektarnama, dated 6th March, 1884 (Exhibit Z-71), whereby they agreed to be bound by the terms of the compromise, a draft where of was annexed to the ekrarnama after its having been approved and that any difference between them would be determined by the Commissioner of Chota Nagpur and the decision of the Commissioner would be binding upon them.

The ekrarnama as well as the rafanama were, amongst others, signed by Mr. J.F.K Hewett, Commissioner of Chota Nagpur, the Raja and the zamindar of Barabhum, Messrs Robert Watson and Company, the patnidars. Biswembhar Singh Patra, sardar ghatwal of taraf Panchsardari also signed the same.

The rafanama was duly registered on the 6th of March, 1884, and this marks a fresh starting point in the history of the tenures in question. This rafanama purports to embody the terms of settlement in respect of the:

“dispute between Government and the sardars and village ghatwals on one side and the zamindar of Barabhum and Messrs Robert Watson & Co., on the other side, in connection with lands measured as ghatwali in the recent survey of pargana Barabhum.”

The rafanama recites that the ismnavisi of 1833 was prepared by the zamindar of Barabhum with the consent of the Agent to the Governor-General for the South-West Provinces and the ghatwals of Barabhum, and the validity thereof was admitted by Government in the case between Bharat Singh and the Secretary of State as well as in many other miscellaneous cases, and the ekrarnama states:

“the ismnavisi will therefore be treated to prevail for the purpose of the proposed settlement and measurement and the ghatwali lands will be measured in accordance with the measurement given in the column of the said ismnavisi for the ghatwali lands in each of the villages.”

In paragraph 4 of the ekrarnama, the measurement and demarcation of Rakhal Das Haldar in 1863–1864 were abandoned for the reasons stated therein.

In paragraph 5, the ekrarnama laid down rules for interpreting the ismnavisi of 1833 and ascertaining the areas of lands in the possession of ghatwals in lieu of remuneration and for demarcating the same with stone pillars, and writing and re-writing the register of the ghatwali police. The proceedings were to be conducted in the presence of the ghatwals and the maps to be signed by the zamindar of Barabhum, the Manager of Messrs Watson and Company, the sardars, the village ghatwals and the Survey Superintendent [vide paragraphs 6 and 7].

Paragraph 12 of the rafanama deals with the abadi lands in possession of the ghatwals at the time A. in excess of what was shown in the aforesaid ismnavisi. These excess lands were to be settled with the ghatwals according to the rules laid down in that paragraph. The rate of rent of these lands was declared to be the rate which was fixed in the preceding June for pargana Barabhum for lands in possession of cultivating tenants and which was accepted by the raiyat community in general. The sardar ghatwal of each taraf was to take settlement of the same from Messrs Watson and Company at 50 per cent. of the total jama realizable from the cultivating tenants. The sardar ghatwal was not to be ejected from the said lands on the ground of being a defaulter but the land in his possession was directed to be sold under the law in force for the time being for the sale of lands in arrears. The sardar ghatwal was declared not competent to sell or mortgage the land in his possession without a written permission from the zamindar or Messrs Watson and Company, or their successors in interest, who had the first refusal. Similar rules were made with respect to settlement of these mal lands with the subordinate ghatwals, such as, tabedars, sadials, etc.

Clause (e) of paragraph 12.—The taraf sardars were to be styled with respect to the settlement of the mal lands as bhumijani talukdars, the village sardars as bhumijani-dar-talukdars and the sadials as sadiali dar-talukdars (as opposed to ghatwals with respect to the ghatwali lands or service tenures included in the ismnavisi of 1833).

In paragraph 13 these mal lands mentioned in paragraph 12 were declared to be separate from the ismnavisi lands so that if any ghatwal was dismissed for any offence he would not lose his right to the said mal lands and the person, who would be appointed to the said post of ghatwal, would “get possession over the ghatwali lands only.”

Paragraph 15 declares:

“Sardar ghatwals of Taraf Panchsardari, Tinsuiya, Saturkhani and Dhadka shall pay to the zamindar the panchak rent as mentioned in schedule (ka), for the ghatwali land. The said jama shall never be varied. The other ghatwals shall all along pay the same panchak which they have now been paying to the sardar ghatwals, or to the sadials as the case may be. The same shall never be varied.”

Paragraph 17 runs as follows:

“If any village sardar or sadial of any taraf declines to settle with the sardar ghatwal and desires to settle directly with the zamindar of Messrs Watson & Co., then he will have the right to do so. In the said settlement the village sardar shall pay a jama at the rate of 62½ per cent., of the jama paid by the cultivating tenants of the proposed taluk and the sadial 75 per cent. In such cases, the zamindar or Messrs Watson & Co. shall pay 12½ per cent. as malikana to the sardar ghatwal or the sadial.”

Schedule (ka) mentions the panchak rent payable by the sardar ghatwals of the four tarafs to the zamindar referred to in paragraph 15. The annual panchak for taraf Panchsardari is stated to be Rs. 160

Exhibit Z(70) is the ghatwali register of taraf Panchsardari showing the particulars of ghatwali lands:

“as selected and demarcated under the terms of compromise dated the 6th March, 1884,”

ghat by ghat and village by village with the names of sardar ghatwals, or digwars, or naib-digwars, sadials or village sardars, or tabedars, in actual possession at the time of the survey.

Certain villages not mentioned in the ismnavisi of 1833 were declared to be mal, and not ghatwali [vide note against Chamta, Raghunathpur and Purnapani.]

The rafanama recognizes, as was stated in the kabuliyat of Ananda Patra (Exhibit Z-103) referred to above, that the ghatwals were in possession of two kinds of lands: (1) the mal lands for which they were to pay rent at the rate paid by the cultivating tenants within the zamindari and with respect to which they were called bhumijani talukdars, and (2) the lands held by them as ghatwals at panchak or quit-rent. With, regard to the latter class of lands, the rafanama states an important incident that on the dismissal of a ghatwal from his duties he would lose his right to the lands and the person appointed in his place would get possession thereof.

The compromise was approved by Government in its letter no. 2170-J., dated 25th August, 1884, referred to in the note of Mr. Bompas (Exhibit Z-65) and the demarcation of the ghatwali lands in terms of the compromise concluded in May 1885.

The evidence is abundant on the record to show that before and after the compromise the ghatwals rendered police duties to the Government and were appointed and dismissed by Government for neglect of duty or misconduct, and the successors appointed used to get possession of the ghatwali lands. In proof of this, Government has produced records from 1858. The records for the previous years are said to have been destroyed during the Ganga Naraini disturbances and the mutiny [vide the rubkari (Exhibit Z-103) and Munshi Nandji's report (Exhibit Z-63)]. The zamindar took an active part in the appointments and dismissals of the sardar ghatwals by the Government, and the sardar ghatwals in their turn took part in such appointments and dismissals of the subordinate ghatwals.

The appointment and the dismissal files are voluminous and cover a period of half a century before and after the compromise. They will be referred to later when discussing the question of the dismissal of Mr. Mathewson.

It will be sufficient here to say that from 1883–1884 when Messrs Watson and Company took a lease of the pargana from the zamindar, they as well as Mr. Mathewson as their manager and afterwards as purchaser of their interest and the interest of the ghatwals, recognized the power of Government to appoint and dismiss the ghatwals and dispossess them from the ghatwali lands in order to make them over, to their successors. It is significant that the sardar ghatwals and the ghatwals also recognized the above power of Government. In fact, as already stated, this was the case of Ananda Patra, his son Pawan Patra and his grandson Bishwembhar Singh Patra in the kabuliyat and the rubkaris already referred to (1834 to 1851) and those were the predecessors-in-interest of Mr. Mathewson. Therefore what was stated in the compromise of 1884 was not due to any mistake as contended for by Mr. Mullick, but what was known to be the true nature and incidents of the ghatwali lands from the earliest times.

The appointment and dismissal files show the dealings of the parties and everybody else concerned with the tenures in question. There is no evidence on the record to show that the incidents of the tenure were at any time other than what is stated in those documents, and in the absence of any evidence to the contrary it can very well be presumed that these incidents existed from the time when the tenures in question came into existence.

Very likely Mr. Buckland in his note of the 18th October, 1890 (Exhibit Z-159), on the prospecting and mineral rights in the ghatwali lands says that the ghatwali survey in Manbhum was carried out in 1879–1883 only with the object of demarcating the boundaries of the ghatwali and other service tenures, so as to distinguish the lands held by the ghatwals as ghatwali from those held by them as mal lands from the zamindar, but that:

“the right of Government to receive police service from the ghatwali was never questioned and the fact that the holders of the tenure pay lent to the zamindar does not affect the right of Government.”

However, in 1892 Messrs Watson and Company as patnidars and ijaradars claimed the right to appoint ghatwals in Barabhum in the event of their post becoming vacant by, death or otherwise. Exhibit Z(72) is the file regarding this claim. The said Company submitted a petition to the Government which was forwarded for report to the Board of Revenue who in their turn called upon the Commissioner of Chota Nagpur to investigate into the claim and to report.

Mr. Grimley, the Commissioner, accordingly went into, the history of the tenure and examined the records in his office, notably the report of the Joint Commissioner in charge of the Jungle Mahals during the disturbances of 1832 and the letters and reports of Colonel Dalton, 1865–1870, and he found that the ghatwals were always:

“treated as servants of the State liable to dismissal for grave or fine for petty offences, and vacancies were filled up by the District Officers without reference to zamindar or other persons,” and that “the so-called right of the zamindar, even to nominate when vacancies in the appointment of ghatwals occur did not exist either in 1870 or in 1832.”

Adopting the words of Mr. Clay in paragraph 8 of his letter, he says:

“the only thing he (the zamindar) can claim is the quit-rent where such is payable, and even if this falls into arrears he has no remedy but to attach the defaulter's personal property, or to petition the Collector to attach his tenures under khas tehsil for realization of his demand. The conditions of ownership being totally wanting in ghatwali lands, it is difficult to see how the zamindar can be considered the proprietor. The fact is, ghatwali lands are entirely at the disposal of Government for police purposes, subject only to the payment of a nominal rent to the zamindar, which is payable by the tenant for the time being.”

This, Mr. Grimley says:

“appears to me to establish beyond all questions the untenability of the present claim.”

In fact, in paragraph 2 of his letter referring to the earlier petitions of Mr. Mathewson in March and January 1892, he shows that Mr. Mathewson admitted that:

“the zamindar's appointments had the approval of the authorities.”

Mr. Grimley reported that the zamindar or Messrs Watson and Company had no right of appointing ghatwals.

The Board of Revenue in their letter no. 263, dated the 16th March, 1893, accepted the conclusions contained in Mr. Grimley's report and submitted the same for approval of the Government.

The order of the Government of Bengal, recorded in resolution no. 1866-J., dated the 8th April, 1893, was as follows:

“Ordered that the petitioners be informed that there can be no doubt that the right of appointing ghatwals rests with the Government, and not with the zamindars; that the Government records show that even in olden times it is very doubtful whether the zamindars ever had the right to nominate for the approval of Government; and that ever since the zamindars had ceased to exercise police powers, it is quite clear that they have not possessed the privilege of nominating ghatwals, still less of appointing them. The Lieutenant-Governor considers it very necessary that the Government should retain its right, and cannot therefore sanction any change in the existing practice.”

Now, Mr. Mathewson after purchasing the patni right of the Barabhum Zamindari from Messrs Watson and Company started proceedings (Exhibit 7-151), 1898–1901, for the realization of rent from the ghatwals of Pargana Barabhum through the Government ghatwali inspector. He submitted to the inspector a list of ghatwals with the rent and cesses due from them and asked for immediate action to be taken and that in default of prompt payment they might be dismissed in terms of the instructions given by the Commissioner of Chota Nagpur.

Accordingly, those who did not pay were dismissed and in their places others were appointed on the recommendation of the police.

As to Panchsardari, Mr. Mathewson got a notice issued against Srimatya Savitri Kumari Dasi, mother of Dinabandhu and Jagabandhu Patra the minor sardar ghatwals, with respect to the panchak dues, road-cess, etc., of Rs. 11,063-2-0. The further proceedings will be referred to later on.

Then he started proceedings (Exhibit Z-155, 1899–1900), for the commutation of ghatwali services, claiming as zamindar a right of resumption on the ground that in Barabhum no exemption was given to the zamindars for ghatwali lands, whereas in other estates they were, and therefore in such estates, as in that of Bishunpur, the lands were resumable. He classified the ghatwals under four heads: sardar ghativals, sardars, sadials, tabedars and raiyats, and asserted that they were not legally authorized to alienate their lands, but that some of them had executed mukarrari leases and sold and parted with their lands, and hence nothing was left and the appointments were only paper transactions. His complaint was that large demands of cesses were due from him to Government which he was unable to realize owing to the inalienability of the lands and the absence of personal effects, and accordingly he suggested the extension of the Bengal Tenancy Act of 1885 to this tenure and to make a survey and record-of-rights under that Act.

Mr. Slacke suggested that Mr. Mathewson should make a petition to the Government through the Deputy Commissioner and Commissioner representing the facts fully and asking Government to excuse him paying these demands.

On the 27th March, 1900, however, Mr. Mathewson wrote to the Deputy Commissioner stating that on further consideration he saw no necessity of making any survey or record-of-rights of the ghatwali tenures inasmuch as those made by Munshi Nandji on the basis of the ismnavisi of 1833 were sufficient for all practical purposes (vide Exhibit Z-155).

The Deputy Commissioner, however, thought that a survey and record-of-rights was advisable.

Now, between 1899 and 1904, Mr. Mathewson made several petitions complaining of the difficulty felt by him in realizing the rents from the ghatwals on account of fraudulent and illegal alienations of the ghatwali lands and also on account of his not getting timely notice of the appointments and changes made in the ghatwals by the Deputy Commissioner. These are dealt with in Exhibits Z(127) and Z(139). Therefore to relieve him of the difficulty felt by him in realizing the dues from the ghatwals on account of panchak rent and cesses, the Government at his repeated representations extended section 5 of the Birbhum Ghatwali Regulation, per Notification, (Exhibit Z-44), dated 7th March, 1903. This is an important document in the case and may, therefore, be quoted in extenso:

“In exercise of powers conferred by sections 5 and 5(A) of the Scheduled Districts Act, 1874, and with the previous sanction of the Governor-General in Council, the Lieutenant-Governor is pleased to extend to Pargana Barabhum, in the District of Manbhum, the first paragraph of section 5 of Bengal Regulation XXIX of 1814. (A Regulation for the settlement of certain Mahals in the District of Barabhum, usually denominated the Ghatwali Mahals) in the following restricted and modified form:—

Section 5, paragraph 1 of Bengal Regulation XXIX of 1814 (as extended to Pargana Barabhum. Should any of the ghatwals at any time fail to pay the amount of any decree obtained against him in a competent court for the rent of his tenure, or for any sum payable in respect of his tenure under the Cess Act, 1880, it shall be competent for the Commissioner, if written application is made to him by the decree-holder within three years from the date of the decree, or (if the decree was made before the date of this notification, and the execution thereof has not at that date been barred by limitation) within six months from the date of this notification, either to make over the tenure of such defaulter to any person whom the Commissioner may approve, on the condition of his paying the amount of the decree, and also on the same conditions in respect to the payment in future of rent and cesses and the performance of the duties for the maintenance of the public peace to which the defaulter was liable at the time when the tenure was so made over; or to cause the tenure of such defaulter to be sold by public auction, in satisfaction of the arrears due from him, under the procedure prescribed in Act XI of 1859 (an Act to improve the., law relating to sales of land for arrears of revenue in the Lower Province under the. Bengal Presidency), and subject to all provisions of that Act, so far they can be made applicable and subject also to the same conditions in respect to the payment in future of rent and cesses and the performance of the duties for the maintenance of the public peace to which the defaulter was liable at the time of sale; or to dispose of the case in such manner as shall be judged by the Commissioner proper”

In the meantime from 1890 to 1902–1903 Mr. Mathewson had obtained several, decrees against the sardars of Taraf Panchsardari for panchak rent due for their ghatwali lands. These decrees were with respect to the arrears of rent for several years, aggregating Rs. 12,505. At that, time the sardar ghatwals were Jagabandhu and Dinabandhu. They were minors, under the guardianships of their mother Sumitra Dassya and their uncle Durga Charan Patra was employed as the acting sardar ghatwal during their minority. In the plaints in these cases Mr. Mathewson admitted the status of the sardar ghatwal and the incidents of the tenure. It will be sufficient to refer to one of the plaints as typical. In plaint (Exhibit P), dated 4th September, 1900, Mr. Mathewson claimed a panchak rent of Rs. 160 and cesses Rs. 430-4-3 per year, stating that the defendants 1 and 2 were:

“employed as sardar ghatwals of all the ghatwali lands lying in Taraf Panchsardari………,………and defendant no. 3, Durga Charan Patra, was employed as acting ghatwal on their behalf.”

The incidents of the tenure were more expressly stated in the sale deed executed by Digambar Singh, sardar ghatwal of Taraf Panchsardari, whereby he sold the panchak rents, etc., due to him from the subordinate tenure-holders in the taraf, to Mr. Mathewson (Exhibit U), dated 23rd September, 1901. In the kabala, Digambar Sardar states:

“I was appointed sardar ghatwal of Taraf Panchsardari and per formed all the duties of the said post for the whole of the years 1306 and 1307 Fasli, but the sadials and village sardars holding under me did not regularly pay panehak, bastu rent and cesses payable by them respectively for holding such posts. There is 710 possibility of realizing the money due to me from them without institution of the suit in Court. I have not the means to pay the cost for instituting the suits. Hence I proposed to sell the said dues in respect of the rent, etc. and you agreed to purchase the same for Rs. 200. Hence on receipt of Rs. 206, the amount of consideration from, you, I executed this khotk Kabala and promise that from this day I cease to have the right which I had in the rent, etc. due to me from the dependent sadials and village sardars holding within the jurisdiction of Panchsardari and the same passes to you.”

Mr. Mathewson on the basis of this kabala instituted suits against subordinate ghatwals for realization of panchak rents due from them to the vendor Digambar Sardar: We may, as an example, refer to the plaint in suit no. 1079, dated 31st October, 1901, in paragraph 2 whereof Mr. Mathewson stated:

“That there is a practice of the sardar ghatwal receiving in lie of remuneration for the said service the rent and cesses, etc., that are payable by the dependent sadials the village sardars and ghatwals of the said taraf. In accordance therewith, the said Digambar Sardar became entitled to get the rent and cesses, etc. from the dependent sadials and the village sardars and ghatwals of the said taraf, etc.”

The plaints and sale deed referred to above contain admissions of Mr. Mathewson and the sardar ghatwal as to the incidents of the tenures of Taraf Panchsardari in question as being held by the sardar ghatwal and ghatwals in lieu of remuneration for police services on payment of panchak or quit-rent.

On 5th April, 1903, Mr. Mathewson applied to the Commissioner of Chota Nagpur Division for the sale of the taraf in execution of the decrees obtained by Messrs Robert Watson and Company, patnidars, and the zamindar whose interest Mr. Mathewson had now purchased and also in execution of his own decrees subsequently obtained by him in accordance with the said Government Notification no. 1246-L.R., dated 7th March, 1903, the plaints whereof are marked Exhibits R, P, L, N, Z(20), Z(21), Z(22), Z(23), Z(24) and Z(29). The aggregate sum due under all the decrees was Rs. 12,505-10-0 odd gandas.

In terms of the aforesaid notification, sale proclamations were issued under sections 6 and 13 of Act XI of 1859 on 30th July, 1903, and the sale took, place on 8th September, 1903, and Mr. Mathewson purchased the property for Rs. 1,000. The sale certificate (Exhibit 7-A) which mentions that the sale had taken place under Act VIII B.C of 1865, was issued on the 4th January, 1904, and Mr. Mathewson obtained possession of the Taraf Panchsardari ghatwali tenure of defendants 2 and 3 on the 7th January, 1904, through Court.

Similarly, under the aforesaid Government notification Mr. Mathewson applied for the sale of the subordinate ghatwali lands in Panchsardari and his applications are marked Exhibits Z(7), Z(9), Z(16), Z(27), Z(32), 37 and W.

The notice of the sale (Exhibit Z-8) and sale certificate (Exhibit 7-B) which mention sections 6 and 13 of Act XI of 1859 (Revenue Sale Law), relate to Ghat Katjore of defendant No. 4. It was sold in execution of his decree, dated 3rd September, 1904, obtained against Thakur Singh and purchased by Mr. Mathewson on 2nd August, 1905, for Rs. 600, and he obtained a sale certificate on 31st October, 1905, and was put in possession of the property on 13th November, 1905, and obtained an appointment sanad on 1st March, 1906: vide Exhibits Z(7), 39, 40, Z(8), 7(b), 42, 8(b), Z(38).

The sale certificate (Exhibit 7-d) which mentions Act VIII B.C of 1865, and the order (Exhibit Z-6) under Act XI of 1859, refer to Ghat Pitki of defendant No. 6 which was sold on Mr. Mathewson's application (Exhibit 37) and purchased by him in execution of his decree (Exhibit Z-5), dated 5th July, 1902, (the plaint, the written statement and deposition of which are Exhibits Z-3, 35 and Z-4), obtained against Dwarka Singh Sadial on 17th November, 1903, for Rs. 151. Mr. Mathewson obtained a sanad of appointment as ghatwal on 11th July, 1904 (Exhibit Z-42) which is in the same terms as that of Katjore.

Exhibits Z(1), Z(2), 29, 32, Y, Z, Z(37) and 8(d) relate to Ghat Adardih. Mr. Mathewson purchased it on the 7th September, 1903, and obtained a sanad (Exhibit Z-37) on 10th April, 1904. At his request the Deputy Commissioner appointed one Madhab Singh as sadial of Adardih to act as Mr. Mathewson's legal representative. The terms of appointment in the sanad are the same as those of Katjore. In this case the sale notification was under sections 6 and 13, under Act XI of 1859, but the sale certificate mentions Act VIII of 1865 B.C

The sale certificate, (Exhibit 7-H) and sanad (Exhibit Z-43), dated the, 3rd September, 1904, relate to Paharpur of defendant No. 11. Mr. Mathewson purchased it on 7th March, 1903, as per sale proclamation which mentions sections 6 and 13 of Act XT of 1859. The terms of the sanad in this case are the same as those of Katjore. At the request of Mr. Mathewson, Shanker Bhumij was appointed in 1908 to act for him (Exhibit Z-98).

Ghat Till a of defendant no. 7 was purchased by Mr. Mathewson on 2nd October, 1905, per sale certificate in execution of his decree (Exhibit 2, 23) dated 3rd September, 1904. He obtained a sanad (Exhibit Z-40) on 27th November, 1905, the terms whereof are the same as those of Katjore. The sale notification and the sale certificate mentions sections 6 and 13 of Act XI of 1859. The papers in this case are Exhibits Z-136, Z(22), Z(27), Z-26, 51; 50, 52, Z(24), Z(25), 7(f) and Z(40).

Ghat Hanksara of defendant no. 10 was purchased by Mr. Mathewson on 15th July, 1905, per sale certificate (Exhibit 7-3) in execution of a decree (Exhibit Z-17), dated the 5th March, 1904, and a sanad was obtained by him on 27th March, 1904, the terms whereof are the same as those of Katjore. Bhramar Sardar was appointed as Agent, but he was removed on the report of Mr. Mathewson that he was not paying attention and was absent from his ghat, and in his place Satrughan Bhumij was appointed with direction to reside at the ghat [vide Exhibit Z-131.

Ghat Tentla of Muchiram Laya, defendant no. 8, was purchased by Mr. Mathewson on 7th June, 1904 per sale certificate (Exhibit 7-G) in execution of a decree [Exhibit Z-10-Z(11)], dated 23rd January, 190?. Mr. Mathewson was granted sanad of appointment (Exhibit Z-41) on 23rd August, 1904, and on his nomination Balak Sardar was appointed to act for him in 1906 (Exhibit 8-C). The safe certificate and sale proclamation mention sections 8 and 18 of Act XI of 1859. The papers in this case are Exhibits Z(10), Z(11), Z(9), Z(12), Z(13), Z(G), Z(70) and Z(41).

The sanads obtained by Mr. Mathewson with reference to his purchase of the principal tenure Taraf Panchsardari and the subordinate tenures referred to above lay down the incidents of the tenure and the conditions under which Mr. Mathewson held them. All of them are exactly in the same terms, and it will, be sufficient to refer to sanad (Exhibit Z-39) relating to the principal tenure Taraf Panchsardari, the relevant portions whereof are:

“By your purchase of the ghatwali mahal in Taraf Panchsardari in Pargana Barabhum you have become the taraf sardar of the said taraf. You are appointed taraf sardar of the said Panchsardari and it is ordered that you will render services to Government honestly and properly. You shall at once carry out the orders passed at any time. The ghatwali lands within the said taraf Panchsardari are described below…………………’”

“You shall not be competent to transfer any portion of the said ghatwali lands by mortgage, sale or otherwise. If it be necessary to settle any land, then you shall not be able to do so without the order of the Deputy. Commissioner. You shall not hold possession over any land as ghatwali in excess of the ghatwali lands mentioned below……….”

Then comes the vital condition:

“As long as you shall be employed in the ghatwali service and shall properly perform your duties and regularly pay the rent payable by you, such as panchak, bastu, road-cess, etc., to the zamindar or sadial or taraf sardar, you shall possess and enjoy the said ghatwali lands. If for any reason you lose your appointment, you will have no claim to the same land. If you do anything contrary to what is stated above, you shall be punished. Dated 2nd May, 1904.”

Mr. Mathewson was permitted to act through Digambar Bhumij, a sardar ghatwal, whose interest he had purchased at the execution sale, and the following note was made at the foot of the sanad

“Be it known that Digambar Bhumij of Purnapani will act as sardar ghatwal in place of Mr. Mathewson.”

On 27th July, 1906, Mr. Mathewson applied to the Deputy Commissioner (Exhibit Z-74) for permission to make the transfer of the aforesaid ghatwali tenures Taraf Panchsardari and its subordinate tenures on the ground that he had arranged to transfer all his rights in the said Pargana to the Midnapur Zamindari Company Limited, and that it would be inconvenient and expensive to keep the ghatwali tenures in his possession. He recognized in this petition that he could not transfer the tenures “without permission of the authorities” (vide paragraph 5 of his application). He further stated in paragraph 6 that the transferees were prepared to make;

“proper arrangements to perform the public duties attached to the said ghatwali tenure” and “to execute any reasonable agreement safeguarding the rights of Government.”

Mr. Gait, the Commissioner, in forwarding the aforesaid application to Government was of opinion that:

“the right of transfer was never recognized in the past” and it would be “inadvisable to recognize it now until after a proper record of rights was prepared which was to commence in the next cold weather.”

He further stated that there was an:

“obvious danger of abuses occurring if these quasi-police-officers” were, “the creatures of the zamindar.” He says “whatever may be their origin, these so-called ghatwali tenures are now regarded as service tenures. As such they cannot be sold under the ordinary rent-law,” and that it was at the request of Mr. Mathewson that the tenures were sold and he having purchased the same “merely stepped into the position of the previous incumbents,” and that he was “liable to perform exactly the same services” and was “subject to the same restrictions as they were liable,” and that it was an anomaly that he himself should have held no less than 14 of these service tenures [vide letter Exhibit Z-73, dated the 22nd August, 1906].

Accepting the recommendation of Mr. Gait, the Government in its letter no. 2784-T.R., dated the 9th October, 1906 (Exhibit Z-79), ordered that Mr. Mathewson:

“should not be allowed to transfer the ghatwali tenures to the Midnapur Zamindari Company, Limited”

and asked for a report as to:

“the desirability of Government retaining the power of selecting the persons”.

who were to perform the duties attached to those tenures if Mr. Mathewson was unwilling to perform them himself.

In the meantime, on 10th August, 1906, Mr. Mathewson wrote the following letter (Exhibit Z-76):

“Sir, I have the honour to notify that I have transferred my property in the Midnapur District to the Midnapur Zamindari Company Limited, with the exception of the ghatwali tenures and that I shall in future act as Manager of the above Company in respect of the transferred properties.”

After Mr. Mathewson parted with the patni right int favour of the Midnapur Zamindari Company about, August 1906, he occupied the position of sardar ghatwal of Taraf Panchsardari and holder of the subordinate tenures under the purchases made by him referred to above, and was also manager of the Midnapur Zamindari Company.

The dual position that Mr. Mathewson occupied led to serious difficulties and anomalies such as were anticipated by Mr. Gait.

On the 26th January, 1907, proceedings (Exhibit Z-85) were drawn up against Mr. Mathewson for his having dispossessed the tabedars of their ghatwali lands in Ramni and for attempting to convert them, into raiyati holdings under the cover of his purchase of the village sardari rights at auction on 26th September, 1904. These proceedings terminated in an order of dismissal of Mr. Mathewson from the village sardari of Ramni Ghat passed by the Commissioner and upheld on appeal by the Board of Revenue and the Government [vide Exhibits Z-86 and Z-87 of 6th May, 1907, and 30th September, 1907].

The Deputy Commissioner reported in his letter (Exhibit Z-80), dated 29th January, 1907, that as a result of the sale of tenures under the Government notification extending section 5 of the Birbhum Ghatwali Regulation XXIX of 1814, fourteen of these tenures were purchased by Mr. Mathewson, one by Mr. Cooke, one by Manmohan Singh, tarafsardar of Saturkhani, and one by Chintamani Mandal, and as these, except the last named, did not want to perform the services themselves, they were allowed to perform them through their nominees who were generally the old ghatwals or their relations. As instances of the unsatisfactory working of this arrangement the Deputy Commissioner pointed out that in two Cases Mr. Mathewson's nominees were recently removed by him for failure to perform their duties, and in one case Mr. Mathewson himself was dismissed (vide. Exhibits Z-85 to Z-87 already referred to), and in another he was called upon to show cause why he should not be dismissed for attempting to dispossess the subordinate ghatwals of their service tenures and to settle them as mal lands. He concluded his report, with his own suggestions.

The Deputy Commissioner made certain suggestions for regulating the system, and the Government laid down the following rules (vide Exhibit Z-156), dated 28th March, 1907:

“(1) The purchaser may nominate a substitute provided that the approval of the Deputy Commissioner is given after due scrutiny and that the remuneration which it is proposed to grant to the substitute is reported to the Deputy Commissioner and approved by him.

(2) The Deputy Commissioner will retain and exercise the right of removing the purchaser's nominee and of appointing a substitute without further reference to the purchaser.

(3) That where the nominee of a purchaser is accepted the latter should execute an agreement binding himself to respect on pain of forfeiture of that ghat the rights of all subordinate ghatwals in existence previous to the purchase of the tenure and to be personally responsible that his nominee does so as well and that such nominee also duly performs the duties imposed upon him.

(4) In addition to the penalty for dismissal the bond should also stipulate for the forfeiture of a fixed sum by way of security for the due performance of the duties of the ghat.”

The above rules have been quoted in extenso as Mr. Mathewson's contention in the present case is that he had the right to act through substitutes or deputies. It will be observed that in these rules the personal responsibility of the ghatwal remains. A further difficulty on this head arose when Mr. Mathewson took leave as will presently appear.

On 12th March, 1908, Mr. Mathewson applied (Exhibit Z-88) for leave from April to November, and stated that Mr. Knowles, manager of the Midnapur Zamindari Company, would hold power from him to do anything that may be necessary in his place. The leave was granted, but his nomination of Mr. Knowles was rejected.

Mr. Mathewson again applied (Exhibit Z-90) for leave on 14th February, 1909, and again nominated Mr. Knowles in his place, which does not appear to have been sanctioned. Mr. Knowles informed the Deputy Commissioner that Mr. Mathewson would return in November or December 1909. Mr. Mathewson did not return when he was expected, and on his behalf Mr. Knowles intimated that he was unable to return to India on account of his illness and that he was acting for Mr. Mathewson, which the Deputy Commissioner thought was without sanction or authority. Accordingly, on the 23rd August, 1910, he directed Mr. Mathewson to return to Barabhum by the 1st December, 1910, failing which his services would be dispensed with from that date. Mr. Mathewson, did not return and was therefore dismissed. His appeal to the Commissioner and finally to the Government was also dismissed on the 19th July, 1911.

The next event in sequence of time is the publication of the record-of-rights on the 2nd April, 1911.

In the khewat (Exhibit A), dated 2nd April, 1911, Mr. Mathewson has been recorded as the holder of these tenures. In column 4 the nature of the tenures is described as ‘ghatwali’; in column 5 it is stated to be “Not resumable” in column 6 under the heading “Other conditions” it is stated:

“The Deputy Commissioner of the District can dismiss the ghatwal. The ghatwal may be evicted from his land in case of dismissal.”

In column 11 the rent is stated to be panchak; the rents and cesses payable are mentioned in columns 7 and 8; Rs. 160 is stated to be the rent of Panchsardari, and Rs. 1,648-8-3 the cess. Similar are the entries with regard to the subordinate tenures, the rent and cesses being of course different. There are separate entries in the khewat as regards the mal lands in possession of the ghatwals. These lands have been described as the bhumijani lands indicating that they were held from ancient times and that the holders thereof have permanent and heritable interest therein. If the record-of-rights as to the ghatwali lands is correct, Mr. Mathewson having been dismissed by the Deputy Commissioner in 1910 he was liable to be evicted from] the ghatwali lands in question, and as a matter of fact he has been dispossessed of the lands which are now in possession of the defendants nos. 2 to 11 who were appointed by the Government as sardar ghatwals and subordinate ghatwals

This concludes the evidence in the case. I have given in chronological order the history of the tenure as derived from the revenue and judicial records, the resolutions of the Government and the reports of the officers of the Government who had to deal with them from time to time and the various transactions in which the zamindars, the tenure-holders and the Government were concerned and in particular Mr. Mathewson since he acquired interest in the property either as a manager, or lessee of the zamindari, or as purchaser of the tenures in question. I have also briefly indicated the bearing of these documents in their several places and have italicised the important words in the extracts referred to in this judgment.

I shall now examine the arguments which the parties have advanced on this evidence.

In order to show that the interest of the holders of the tenures in question was of a permanent character Mr. Mullick refers to paragraph 9 of Mr. Strachey's report (Exhibit 4), dated 13th April, 1800, wherein he stated that the sardar pikes might be considered as the talukdars of Barabhum who acknowledged the zamindar as their chief and whose ancestors had for many generations possessed the lands at present occupied by them. There is no evidence on the record to show that they were talukdars. On the other, hand, the claim of the sardar ghatwal of Saturkhani of being shikmi zamindar in the villages in his taraf was dismissed by the Civil Court in Suit no. 20 of 1870, on the 11th June, 1872. The judgment of Colonel Rowlett has been quoted in extenso in Munshi Nandji's report and already reproduced in this judgment. The condition of Taraf Panchsardari as well as of the other two Tarafs Tinsuiya and Dhadka, says Munshi Nandji, being the same as that of Saturkhani, the aforesaid decision should apply to the tenure in question. The lands of Taraf Saturkhani in that case were found to have been held for the “performance of police duties.” In the second place, the claim related only to the mal lands and not to the lands entered in the ismnavisi of 1833 as ghatwali lands. Therefore there has never been any claim that the lands in question were held by them as talukdars or shikmi zamindars.

Mr. Strachey found the pikes to be wandering about and to have become chuars for want of any other means of subsistence. Accordingly, he asked them to come to Midnapore and to take settlement for the pykan lands in the Jungle Mahals:

“upon the terms on which they formerly held them and that otherwise those lands would be given on the same conditions to other persons and never be restored to them.”

One of the conditions upon which the lands were given to them is contained in rule 5 framed by him under which the pikes and all persons employed under the zamindars as police officers were subject to the orders of the Magistrate punishable by him for misconduct either by removing them from office, depriving them of their lands or otherwise according to the nature of the offence. If this rule was framed in accordance with the conditions upon which the pikes had originally held the lands, and there is no reason to suppose that it was otherwise, the pikes were the Zamindari police officers holding the lands, as remuneration for police duties and liable to forfeit the same, although they might have held the lands for many generations. It was upon the recommendation of Mr. Strachey that the Government decision contained in its letter of the 3rd July, 1906 (Exhibit Z-51), was arrived at whereby the appointment of the ghatwals in the Jungle Mahals, which include Pargana Barabhum wherein the tenures in question are situate was vested in the Magistrate of the district wherever those offices became vacant from death, desertion or any other cause.

Mr. Mullick then refers to the report of Mr. Dent (Exhibit Z-56), dated 4th September, 1833, wherein he describes the ghatwals as the old military force of the country whose duty it was to protect the estate from the predatory incursions and inroads of their neighbours and the sardar ghatwals as the “captain of the border or lord of the marches.” But Mr. Dent himself says that they held lands “in Jagir” (which means service tenure) on a nominal rent and that they were allowed to remain in possession of their lands and became the police servants of the Government and that:

“the ghatwals were Zamindari police officers possessing extensive allotment of lands at a mere nominal rent.”

Then Mr. Mullick relies upon the following passage in Colonel Dalton's report of the 9th December, 1864 (Exhibit Z-60):

‘It is a fact that both in Dalbhum and in the Jungle Mahals of Manbhum were the old ghatwali families are still in possession they are all the primitive race called Bhumij, that is of the same families as the Santals and the Mundaries of Chota Nagpur and the Larka Koles of Singhbhum. Their family tenures are the oldest in the country, older than the right of their chief, who there is every reason to suppose is descended from one of the same stock originally elected to rule over them.”

But in the same passage (paragraph 51) Colonel Dalton says:

“’ I suppose that when arrangements were first made by a clan to contribute to the support of their chiefs some were wholly or partially exempted on condition of service…………Thus we find the sardar ghatwals men of great hereditary influence, the lord of the several of the oldest and best interior villages and we find that nearly all the border villages are ghatwali.”

In a previous paragraph (no. 5) Colonel Dalton had already referred to them as having been employed by their chiefs as vassals and a body of yeomanry who in lieu of payment in cash or in kind contributed by others for the support of their chiefs rendered service in guarding the roads and passes and in military duties to the chief, and these yeomanry and vassals, Colonel Dalton says, were recognized as the jdgirdars, sardars, ghatwals, digwars and tabedars; and in paragraph 55 he says that the sardar ghatwals paid to the zamindar quit-rent at about one-third of the rate that would when the settlement was made have been calculated as the paragana rate, and the right of Government to the service due on these tenures had always been recognized and never been successfully contended against (paragraph 63).

In his report of the 14th June, 1869 (Exhibit Z-63, paragraph 6), Colonel Dalton states that the sardar ghatwals held the lands on “terms of service”, and when the settlement of the Jungle Mahals was made they were allowed to remain in possession of their lands and became the police servants of the British Government, and in 1833 after the suppression of, the disturbances the ghatwals were:

“re-established as police subordinates to the zamindar who was the head police officer in his own estate.”

Based upon the reports of Colonel Dalton and Mr. Clay, the Government recorded its decision on the 18th August, 1876 (Exhibit Z-59), that the ghatwals were originally a sort of militia, some of whom were called sardars, and that besides what would ordinarily be deemed militia duty:

“these men doubtless performed police duty although it may have been of an undefined character” and “for this service lands either rent-free or on a low quit-rent were assigned to them; these assignments still exist probably without much change and are called ghatwali tenures.”

The Government further recorded its view that the:

“ghatwali office and its landed tenures were hereditary.”

Reading the reports as a whole, the interpretation put by the Government in the aforesaid decision seems to represent the correct view of the officers concerned, and not trial; which Mr. Mullick seeks to put upon them by reference to stray passages here and there.

After the survey of the ghatwali and the mal lands in possession of the ghatwals by Munshi Nandji in 1882–1883, Mr. Risley, Commissioner in charge of the Ghatwali Survey, Manbhum, and Mr. Hewett, Commissioner of Chota Nagpur, differed in their opinions. Mr. Mullick relies upon, paragraph 10 of Mr. Hewett's note wherein he stated that their holdings were their ancestral property dating from the time when the tribe to which they belonged took possession of the territory. Mr. Hewett, however, in paragraph 18 of his note, says:

“Whatever the original rights of the ghatwals may have been, there is no doubt, whatever of the strong opinion they entertained as to their present rights. I myself believe, as I have stated above, that their claims rank very high and in so democratic a society as that existing among the Koles and people of Kolarian origin, they are only some degrees below those of the zamindar. They are bound to pay to the zamindar their quota of state expenses, the payments made by the zamindar to superior authority being one of its item of the account and they are ??? to render service both to the community and on behalf of the community to the Government as the authority superior to their zamindars.”

Both Messrs Risley and Hewett agreed that in the interests of the ghatwals and in order to protect them from the attempt of the zamindar and Messrs Watson and Company, their lessees, to include the ghatwali lands into mal lands a compromise, which was subsequently set forth in the rafanamah (Exhibit (Z-71), should be effected. Mr. Hewett himself as Commissioner of Chota Nagpur subscribed to the terms of the compromise which defines the incidents of the ghatwali tenures in question and this represents the views of those officers and the Government, and not what Mr. Mullick contends for.

Mr. Mullick then refers to the latter opinions of Messrs Gait, Sifton and Reid. Reliance is placed upon an abstract from Mr. Gait's note, dated 28th November, 1906; given in Exhibit 5(c) and it runs as follows:

“There can be no doubt whatever that originally, their, tenures were ??? service tenures but were held on the same terms as the khuntkhatti villages of Ranehi. This is clearly stated in Colonel Dalton's letter quoted at the bottom of page 9 of Mr. Bompas' printed note. The term ‘ghatwali did not come into use until the year 1824 and there can be no doubt that when it was applied to them, there was no change whatever to the actual conditions on which they held their lands. The zamindar was called upon to nominate certain persons as ghatwah, and in doing so he gave the names of his subordinate tenure-holders. Unfortunately for them these appellations confused people's mind as to their status. It was assumed that because they are called ghatwals they must necessarily hold service lands.”

This must be read with Mr. Gait's views expressed in Exhibit Z(78), dated 28th August, 1906, wherein he says:

“Whatever may be their origin, these so-called ghatwali tenures are now regarded as service tenures. As such they cannot be sold under the ordinary Bent Law”;

and referring to Mr. Mathewson's purchases Mr. Gait says:

“It is perfectly clear that in purchasing the defaulting tenures Mr. Mathewson has clearly stepped into the position of the previous incumbents, and that he is liable to perform exactly the same services and is subject to the same restrictions as they were.”

Mr. Gait's opinion is largely based upon his view that the word ‘ghatwal’ was for the first time used with respect to the tenure in question in the ismnavisi of 1824, and this, he says, possibly led to the idea that the lands held by the ghatwals were service lands. In this he seems to be mistaken, for Mr. Hoppner used the word ‘ghatwal’ so far back as 1816, much anterior to the ismnavisis in question (Exhibit Z-53), and the word also finds place in the ismnavisi of 1816 relating to Mahal Bishunpur. The determination of the incidents of the tenure, however, does not depend upon the word ‘ghatwali’ attached to these lands, but upon the terms upon which the holders of the tenures had the lands in their possession and how these tenures were treated by the parties concerned, as was pointed out by their Lordships of the Judicial Committee in Nilmani Singh Deo v. Bakranaih Singh, where their Lordships said that whether the Jagir in that case was a ghatwali or pot, it was analogous to the tenure described in the Birbhum Regulation XXIX of 1814.

Messrs Sifton and Reid's opinions relied upon are contained in the correspondence of 1910 (Exhibit 5) in connection with the preparation of the record-of-rights which was then in progress. They were Settlement Officers and they relied upon the opinion of Colonel Dalton, Mr. Hewett and Mr. Gait, extracts whereof have been appended to the said correspondence and which have already been referred to. Mr. Sifton confines himself more or less to the tabedari holdings in direct cultivation of the tabedars which he thinks are in the nature of khuntkatti as defined in the Chota Nagpur Tenancy Act, but he has also recognized, that:

“since 1884 (the date of the ghatwali compromise) in many instances the Deputy Commissioner has confiscated the lands of dismissed tabedars and given them to the tabedars' successors and in general since that date the tabedari holdings have been regarded and treated by him as ghatwali service tenancies.’’

As to before 1884 he says:

“I do not think that he (the Deputy Commissioner) can produce more than two or three isolated cases, if any, of confiscation of a tabedar's holding.”

As to the tabedari sanads he says that even if it could be:

“regarded as a joint contract between the ghatwals and tabedars and Government, the occupancy right existing before the contract would not be affected by it”

by reason of sections 74 and 79(1)(vi) of the Chota Nagpur Tenancy Act.

Mr. Reid was of the same opinion. He, however, makes an exception in the case of a ghatwal who was appointed by the Deputy Commissioner and who did not inherit the tenancy and whom he calls “a mere service holder.” This may apply to Mr. Mathewson for he did not get the tenures in question by inheritance but by purchase and appointment by the Deputy Commissioner by sanads granted to him.

Mr. Sifton's views as to the ghatwals and tabedars are given in his letter of the 30th May, 1911 (Exhibit Z-66), at the time of apportioning the costs of the survey. He says:

“The ghatwals may be divided into five classes: (1) taraf sardars, (2) sadials (3) village ghatwals who are landlords of an entire village, (4) village ghatwals who own tenures of a fraction of a village, and (5) ghatwals and tabedars who have holdings only sufficient for personal cultivation. The ghatwals all hold their tenancies subject to the rendering of quasi-police services and to general good conduct, and to the payment of a small quit-rent to the zamindar. They are liable to dismissal by the Deputy Commissioner and dismissal carries with it transfer of the ghatwali lands to the new ghatwal. The quit-rent (panchak) payable to the zamindar is small and not enhancible. The ghatwali lands being permanently hypothecated to Government for the purpose of police service, Government is jointly interested in them with the ghatwals. And Government is also interested in the survey and settlement of the lands, because it will be in a position, after the record-of-rights is prepared, to work out a scheme for the commutation of the ghatwal's service and to utilize the tenures to the best advantage. I think it clear that the Government is bound to bear some proportion of the costs recoverable on account of the ghatwali lands”

Even before this Mr. Sifton had already given effect to his views by the entries made in the record-of-rights (Exhibit A) which was prepared and published under his directions as Settlement Officer, in which the status of the tenures is described as ghatwali and that the Deputy Commissioner of the district can dismiss the ghatwal and that the ghatwal may be evicted from his land in case of dismissal, and that the taraf sardar pays a panchak rent of Rs. 160 odd to the zamindar.

Therefore, far from supporting the contention of Mr. Mullick, the views of the Settlement Officers, Messrs Sifton and Reid, embodied in the finally published record-of-rights, are in favour of the Government. The report of the officers who from time to time dealt with the tenures in question do not, therefore, help the plaintiff. No doubt, as already observed, these reports are valuable only in so far as they supply ??? of official proceedings and historical facts and in so far as they are relative to explain the conduct and acts of the parties in relation to them and the proceedings of the Government founded upon them, namely:

(1) the order of the Government of 1806 (Exhibit Z-151) vesting in the Magistrate of the Jungle Mahals the appointment of the ghatwals in case of those offices becoming vacant from death, desertion or any other cause;

(2) the resolution of the 18th August, 1876, (Exhibit Z-589) wherein I, the Government held that ghatwals were not only military officers but they also perform police duty and for this service lands were allotted to them rent-free or at a low quit-rent and while the tenures ordinarily descended from father to son, the ghatwals were frequently deposed for misconduct or incapacity by the District Officers. The proceedings of the Government and the record-of-rights may not be conclusive and may be shown to be incorrect;

(3) the decisions of Government that the right of appointment and dismissal vested in the Government and not in the zamindar (Exhibits Z-79 and Z-73), dated 9th October, 1910 and 8th April, 1843;

(4) the Government Notification (Exhibit Z-44), dated the 7th March, 1904, extending the Birbhum Ghatwali Act, XXIX of 1814, to the tenure in question upon condition of the purchaser being liable to render service and to forfeit the lands for misconduct or neglect of duty;

(5) the order of Government (Exhibit Z-1156), dated 28th March, 1907, laying down rules for the appointment of substitutes in case the purchasers did not want to perform the services themselves but holding the purchaser lisble for the conduct of the substitutes; and

(6) the finally published record-of-rights (Exhibit A), dated 1911, which embodies the incidents of the tenure.

These documents may not be conclusive but they represent the view of the Government and raise a strong presumption in favour of the incidents of the tenure in question.

Let us now see how the ghatwals and the zamindars understood the matter.

Soon after the Permanent Settlement Mr. Strachey in 1800 recommended that the sardar pikes should receive sanads as subordinate police officers just in the same way as the zamindars had received them and the Government accepted the suggestion and vested the appointment of the ghatwals as police officers in the Magistrate of the Jungle Mahals [Exhibit Z-51, dated the 3rd July, 1806]. The paikan lands which the holders thereof had lost were restored on condition of their continuing to be the police officers under the zamindar but subject to the orders of the Magistrate punishable by him for misconduct by removing him from the office and depriving him of his land (vide rule 5, in Exhibit Z-48). We have not on the record any sanad granted to the sardar ghatwal, and the earliest document on the record is the kabuliyat executed by Ananda Patra (Exhibit Z-103), dated the 24th August, 1834, wherein he stated that besides mal or ordinary rent paying lands he was in possession of Jagir lands for which he paid panchak rent of Rs. 160 to the zamindar. Referring to these lands he says that they were held by him under the old arrangements indicating that the Jagir nature of the tenure on a nominal panchak rent was the original incident of it, and he calls himself sardar jagirdar of taraf Panchsardari.

In 1846, in his dispute with the zamindar with regard, to the realizations of sena jama within taraf Panchsardari he stated that he was in undisputed possession of 52 ghatwali mauzas after performing his ghatwali duties and on payment of panchak rent of the mauzas to the raj sarkar. After his death, his son, Pawan Singh Patra, succeeded to taraf Panchsardari: vide rubkari (Exhibit Z-175), dated 6th November, 1855.

The rubkari (Exhibit Z-103) contains the statement of Pawan Singh Patra, which refers to the history of the tenure from the time the Government assumed power in the Pargana and made settlement of the Zamindari with the raja. This document has already been referred to. Pawan Singh Patra states that the panchak rent of this taraf was fixed after the assumption of the power by the Government about the time the settlement of the Zamindari was made with the raja and that his great grandfather, Chaitanya Singh, and his grandfather, Somer Singh, rendered services to the Government and paid panchak to the zamindar, and after the death of his grandfather his father was appointed to the said office, and by rendering services to the Government and paying rent to the zamindar he was in possession of the same. Somer Singh referred to therein has been shown in the ekjai papers (Exhibit Z-104).

In 1852, Bishwembhar Singh, son of Pawan Singh, was appointed sardar ghatwal in place of his father upon the report of the ilaqadar police, and received a sanad of appointment (Exhibit Z-174) engaging to perform the duties entrusted to him.

The rubkari (Exhibit Z-175) refers to a parwana of the 6th February, 1846, in the name of Ananda Patra and to an earlier rubkari of the 8th September, 1842, of Haptam and two judgments. These papers have not been filed in the present case; probably they have been destroyed or are missing; but they have been referred to in the rubkari as showing that the zamindar was only entitled to his dues of the panchak rent from the sardar ghatwal.

The next document of importance is the rafanama or compromise of 1884 (Exhibit Z-71) which was jointly executed by all the parties concerned—the Government, the ghatwals and Messrs Watson and Company. Before coming to this document, I shall indicate the attitude of the zamindar with respect to the tenures in question.

The object of Mr. Higginson in settling the lands in the Jungle Mahals was to ensure preservation of peace and order, and accordingly he made the fixed Settlement in 1776 at a low jama as a tribute payable to the Government upon condition of the zamindars living peaceably and becoming faithful servants, and he took an agreement from Raghunath Narain Singh with whom the Pargana of Barabhum was settled, to that effect. This engagement was repeated in the Decennial Kabuliyat (Exhibit 1) executed by him on 16th April, 1791, wherein he covenanted to guard the boundaries and to protect the person and property of the travellers and to preserve internal peace. Unlike the other pargaims in Manbhum, the jama of Barabhum was fixed at a lump sum without allotting it among the villages of the estate.

About that time the zamindar filed ekjai and, collection papers called tirij jama wasilbaki papers for 1205 and 1206 (1798 and 1799) [Exhibits 3, Z-49, and Z-104). In those papers he showed 64 bhumijani villages appertaining to four tarafs with a total jama of Rs. 993-14-0. Against Panchsardari the jama was stated to be Rs. 137-8-0. These, Mr. Risley says, refer solely to the bhumijani lands and the sheet showing the paikan tenures with which we are concerned in this case is missing (letter Exhibit Z-64, dated 19th December, 1883).

Under the orders of the Government, the zamindars were vested with the management of the police by Mr. Strachey in 1800 and the ghatwals were made the subordinate police officers under the zamindars. Their appointment was vested in the Magistrate of the district and they were liable to be dismissed by the Government for misconduct or incompetency. The zamindars received sanads under Regulation XVIII of 1805.

As required by this Regulation, the zamindar of Barabhum filed two ismnavisis: one in 1824 and the other in 1833 (Exhibits Z-68 and Z-69). These ismnavisis give the names of sardar ghatwals, sadials and tabedars and the panchak or quit-rent payable by them, the Jagir lands and the amount of remuneration in cash and the names of ghats. The Panchsardari tenure in question is mentioned in these ismnavisis as being ghatwali tenures and held by the ghatwals on payment of panchak rent. These ismnavisis therefore represent the views of the zamindar as to the tenures in question.

Now, what weight is to be attached to these ismnavisis depends upon the circumstances of each case as observed by their Lordships of the Judicial Committee in William Farquhurson v. Dwarka Nath Singh, and they are not conclusive but are evidence for what they are worth. They were filed under the Regulation with a view to describe the extent of the ghatwali lands as distinct from the mal lands about which there was a dispute between the ghatwals and the zamindars. They may in this case be binding upon the tenure-holders, as there is indication in the reports of some of the officers that the ismnavisi of 1833 was prepared with their concurrence. They are, however, binding upon the zamindar and these are here referred to with a view to show what the view of the zamindar was with respect to the extent and incidents of the ghatwali tenures.

Mr. Risley in his letter (Exhibit Z-64) of 19th December 1883, refers to a rubkari by Captain Oakes, dated 11th April, 1862, which states that the ismnavisi of 1833 was the result of a conference held by him with the zamindar and the leading ghatwals and that it was agreed to by all the parties concerned and was approved by the Agent, Captain Wilkinson. He also shows that the ismnavisi was recognized and was acted upon in several judgments and proceedings.

Pawan Singh Patra, the sardar ghatwal of Panchsardari, relied upon the ismnavisi papers in resisting the claim of the zamindar with respect to certain villages of Panchsardari as appertaining to the mal lands, and in support of his claim to the lands being in his possession as ghatwali lands: vide rubkari (Exhibit Z-103), dated 8th September, 1851. The ismnavisi of 1833 was further accepted as the basis of defining the ghatwali lands in the compromise of 1884 by all the parties concerned. Therefore, in the circumstances of this case, the ismnavisis acquired a much greater evidentiary value as against all the parties concerned. There is, however, abundant evidence independent of the ismnavisis as to the incidents of the tenures in question. Mr. Mathewson admitted them to be correct in his letter, dated 27th March, 1900, Exhibit Z (155).

The zamindar took a kabuliyat, Exhibit Z(103), dated 24th August, 1834, from Ananda Patra referred to above with respect to taraf Panchsardari in terms of the ismnavisi of 1833, and the subsequent disputes between the zamindar and the ghatwals were only with respect to the extent of the ghatwali lands, and never with respect to the incidents thereof. The aforesaid rubkaries (Exhibits Z-103 and Z-175) relate only to disputes with respect to particular lands as to whether they were ghatwali lands or mal lands and with respect to the rights of the ghatwals to collect sena rent.

The police powers were withdrawn from the zamindars but the ghatwals were retained as subordinate police officers as before and held the lands as emoluments for the services rendered by them to Government and on their dismissal the lands used to be taken away from them. To this arrangement the zamindar never objected but he was always anxious to include as much of the ghatwali lands in his mal lands as possible and this led to a serious dispute between the zamindar and the ghatwals, resulting in many suits having been instituted and many more being threatened, particularly on account of Messrs Watson and Company having taken a patni lease of the Zamindari with a stipulation that they would obtain a lease of the lands in possession of the ghatwals on favourable terms if they would succeed in dispossessing the ghatwals, the costs of the litigation being borne by them. The Government was also interested in this dispute for the loss of the ghatwali lands would have affected the services rendered by the ghatwals to Governments. The ghatwali lands were surveyed and demarcated by special officers appointed by the Government and after protracted discussions the compromise was arrived at: vide the reports of Messrs Hewett and Risley (Exhibits 5-b and Z-64), and the terms of settlement were recorded in a registered document which was duly signed by the parties concerned.

Mr. Susil Madhab Mullick, on behalf of the plaintiff-appellant, suggested that the rafanama was due to fraud committed upon the ghatwals by the Government and the zamindar.

There is no evidence on the record to support the suggestion. The correspondence referred to above shows that the attitude of the Government was to maintain both the zamindars and the ghatwals in their respective rights. It could not possibly be the interest of the Government to be in collusion with the zamindar, nor of the zamindar to be in collusion with the Government. No specific acts have been pleaded or proved from which fraud could be inferred and the suggestion in the argument was only of a faint character.

Mr. Mullick then contended that the compromise was due to mistake on the part of the then ghatwals, the predecessors-in-interest of the plaintiff, as to the real nature and incidents of the tenure, and consequently he could avoid it. This also he has failed to substantiate, inasmuch as there is no definite evidence on the record to show what were the incidents of the tenures in question in their inception. On the other hand, the incidents stated in the rafanama are the re-iteration of what were contained in the kabuliyat of Ananda Patra of taraf Panchsardari of 1834 and the rubkaries of 1851 to 1855 (Exhibits Z-103 and Z-175) and the sanad of Biswembhar Singh Patra (Exhibit Z-174). These documents contain statements and admissions of three sardar ghatwals of taraf Panchsardari, Ananda Patra, his son Pawan Singh Patra and his grandson Biswembhar Singh. The incidents were given effect to and Were recognized by Courts in the aforesaid rubkaries. Therefore this contention must also fail.

The last argument of Mr. Mullick has been that the incidents of the tenures in question were not the subject-matter of dispute between the parties and therefore the compromise is not conclusive and binding upon the plaintiff, though he concedes that the admissions, contained therein, of the predecessors-in-interest of the plaintiff, Mr. Mathewson, may be used in evidence and that it is open to him to show that they are wrong and contrary to the real incidents of the tenures.

Now, the ghatwals claimed all the lands in their possession as found by the survey measurement to be their ghatwali lands held by them in consideration of police services rendered to the Government and that the zamindar was not entitled to anything more than a mere panchak or nominal quit-rent. On the other hand, the zamindar and Messrs Watson and Company, their lessees and patnidars, wanted to have all the lands to be regarded as their mal lands. The rafanama is a settlement of this dispute by defining and demarcating the mal and the ghatwali lands and stating the terms under which they were held. As to the ghatwali lands, it was stated that they were lands held by the ghatwals in their capacity of police officers, their appointment and dismissal resting with the Government, and that on dismissal they were to lose their right in the lands which were to be taken possession of by the ghatwals appointed in their place to perform police duties.

The parties set forth their incidents in the rafanama with a view effectively to solve the dispute between them, so that no further dispute might arise in future. Therefore the definition of the incidents of the tenure, which were long before recognized, formed an integral part of the terms of the compromise. In this view the compromise is binding and conclusive.

It is conceded that Mr. Mathewson was at that ??? the manager of Messrs Watson and Company who were the patnidars and lessees of the zamindar. Mr. Mathewson purchased the right, title and interest of Messrs Watson and Company and afterwards acquired the interest of the sardar ghatwals and the subordinate ghatwals in the tenure and the sub-tenures in question. The zamindar and Messrs Watson and Company were parties to the compromise. Mr. Mathewson having succeeded to their interest is bound by the terms agreed to and subscribed to by them in the registered rafanama or deed of compromise.

Mr. Mullick relies upon the case of Miles v. New Zealand Alford Estate Company. In that case it was held that there was no evidence of any intended claim by the company or share-holder against the grantor who had given the guarantee to the company. It was, therefore, an imaginary consideration, and it was held that the compromise was without any consideration. This is not the case here. In the present case there was a serious dispute between the parties which they purported to solve by the compromise, and consequently it will be governed by the principle laid down by Cotton, L.J, in that case.

The next case relied upon by Mr. Mullick is Sreemuty Debia Chowdhrain v. Bimola Soonduree Debia. In that case it was held that where the object of a benami transaction is to claim a shield against his creditor the party is not precluded from showing that it was not intended that the property should pass by the instrument creating the benami and that in truth it still remained with the person who professed to part with it. This is not the case here.

Then Mr. Mullick relies upon the case of Sreenath Roy v. Bindoo Bashinee Debia(3). In that case it was held that a party claiming under another who has made admissions as to a transaction to which that other was a party, is at liberty to allege and prove that the admissions were made with a fraudulent purpose, and were not true, and to show the real nature of the transaction. He also relies upon the cases of Heane v. Rogers, Newton v. Liddiard, In re, Simpson ), Trinidad Asphalte Company v. Corgat(4) and Edward H. Cooper v. William Phibbs(5). These are cases of admissions made with a fraudulent purpose or through mistake and therefore it was open to the parties to show the true nature of the transaction. The present is not a case of fraud or mistake.

The account of the dispute that I have given before from the earliest times between the zamindar and the ghatwals, in which Government also was interested, shows that there was a real bonâ fide dispute and that it had reached its climax, resulting in many suits having been instituted and many more being threatened particularly on account of Messrs Watson and Company having taken lease of the zamindari. Finding himself unable to cope with the fight, the zamindar engaged with Messrs Watson and Company to give them on favourable terms the patni lease of lands that he would be able to recover from the possession of the ghatwals, the costs of litigation being borne by them. Such a compromise is binding upon all the parties and their successors, and cannot be allowed to be impugned or reopened. A party to such a compromise cannot avoid it on the ground of the truth or justice of his case. He cannot either be allowed to show that he had a mistaken nation of his rights. One party or the other must have the right in him and if this were a ground to set aside a compromise, then no compromise could be final. It is the uncertainty of the litigation and the expenses that form the consideration in a compromise. All that is necessary for the validity of a compromise is the existence of a bonâ fide dispute, and not a mere pretext of a dispute. Of there being a real bonâ fide dispute between the parties in the present case there is no doubt. It was an old dispute coming on for a long time and it was gradually developing and assuming a magnitude which would have been ruinous to the parties concerned. Therefore the compromise in the present case is unassailable on the ground suggested, by Mr. Mullick. For the principles governing a compromise, vide Holsworthy Urban District Council v. Rural District Council of Holsworthy and Maria Campbell Stewart v. Ferdinand Stewart Campbell Stewart.

Cotton, L.J, who delivered the judgment in the case of Miles v. New Zealand Alford Estate Company, referred to above, sets forth, the law on the point thus: “What I understand to be the law is this, that if there is in fact a serious claim honestly made, the abandonment of the claim is a good ‘consideration’ for a contract; and if that is the law, what really we have now to consider is whether in the present case there is any evidence on which the Court ought to find that there was a serious claim in fact made and whether a contract to abandon that claim was the consideration for this letter of guarantee.”

In the case of Stapilton v. Stapilton, Lord Hardwicke quoted with approval the doctrine of Lord Macclesfield in Cann v. Cann where he said “that an agreement entered into upon a supposition of a right, or a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties; for the right must always be on one side or the other, and, therefore, the compromise of a doubtful right is a sufficient foundation for an agreement.”

In this view Mr. Mathewson is bound by the terms of the compromise which not only defined the extent of the tenures in question, but also their incidents.

Mr. Mullick relies upon the notes of Mr. Bompas (Exhibit Z-65), dated 1893, Mr. Streatfield (Exhibit Z-67), dated 26th November, 1906, and Mr. Sifton (Exhibit 5), dated the 14th November, 1910, to show that the compromise failed.

Mr. Bompas only refers to some difficulties in carrying out the compromise on account of the ghatwals expressing their inability to realize the stipulated rents for the mal lands mentioned in the compromise, and not the ghatwali lands. Messrs Streatfield and Sifton refer to the inequitable arrangement as to the lands in possession of the tabedars who were the bhuinyas and the cultivators of the lands. This was in connection with the recording of their status in the record-of-rights of 1911. Mr. Sifton regarded the tabedari holdings as ancient and the service as subsequently imposed upon them, the effect of which so far as this case is concerned will be discussed later on. These are mere opinions of the officers and do not show that the compromise was not acted upon. There is ample evidence on the record to show that the compromise was consistently acted upon by all the parties concerned and so far as Mr. Mathewson is concerned he rigidly followed it. Even if the compromise has gone beyond its scope in defining the incident's of the tenures on the ground that the extent only thereof was in dispute, it is conceded that it contains the admissions of the predecessors-in-interest of Mr. Mathewson and as such it can be used as evidence against him, and the fact admitted must be taken to be established and true unless and until it is shown to be untrue in fact, as observed by Parke, B. in Slatterie v. Pooley, re-affirmed in Rani Chunder Kunwar v. Chaudhri Narpat Singh

After purchasing the vatni right of the Zamindari from Messrs Watson and Company, Mr. Mathewson treated the sardar ghativals as liable to pay panchak rent to him and obtained decrees for arrears of panchak rent which have already been referred to. In the plaints of those cases he described the holder of the tenure as having been employed as “sardar ghatwal” of all the ghatwali lands in taraf Panchsardari (vide Exhibit P, dated 4th September, 1900). He purchased from Digambar Singh, sardar ghatwal of, Panchsardari, the rents due to the latter from the subordinate tenure-holders (kabala, Exhibit U, dated 23rd September, 1901) This transaction show how the tenure was regarded both by the tenure-holder and by Mr. Mathewson. In that the tenure-holder states that he was:

“appointed sardar ghatwal of taraf Panchsardari and performed all the duties of the said post.”

On the basis of the kabala (Exhibit U) Mr. Mathewson obtained rent decrees for panchak rents due from the subordinate tenure-holders, and in the plaints of those cases (vide Suit no. 1079, paragraph 2) he states that:

“there is a practice of the sardar ghatwal receiving in lieu of remuneration for the said service the rents and cesses that were payable by the dependent sadials and the village sardars and the ghatwals of the said taraf.’

Treating the tenures as ghatwali tenures and as not saleable for arrears of rent without the permission of the Government and after repeated representations on the ground of inconvenience felt by him in the realization of the panchak rents, Mr. Mathewson obtained from Government the extension of section 5 of the Birbhum Ghatwali Regulation XXIX of 1814 in a restricted form to the tenures in question, and a right to sell the tenure in satisfaction of the arrears due to him:

“subject to the same conditions in respect of the payment in future of rent and cesses and the performance of the duties for the maintenance of public peace to which the defaulter was liable at the time of the sale.” (Exhibit 1-44).

Mr. Mathewson purchased the tenures in question under these conditions and obtained various sanads already referred to which re-affirmed the liability to render services to the Government and to hold the same only so long as he performed the services.

In his original plaint (Exhibit Z-106) filed on 24th November, 1913, Mr. Mathewson admitted that the tenure was subject to the payment of fixed quit-rent and the performance of certain dues for the maintenance of public peace: (paragraph 3). That plaint was withdrawn with liberty to bring a fresh suit, and the present plaint was filed on 23rd April, 1917. In it, for the first time, he states that the aforesaid duties for the maintenance of public peace were imposed on the holders of the tenure and the sub-tenures by the Local Government officers in collusion with the zamindar of Barabhum. Why was this omitted in the former plaint? No facts and circumstances have been brought to light showing that the police duties were imposed upon the tenures in question on account of any fraud or collusion on the part of the Government and the zamindar. The zamindar had all along been trying to convert the lands appertaining to the tenures into his mal lands and he always considered it detrimental to his interest that the lands should continue to be the ghatwali lands so much so that he gave a patni lease to Messrs Watson and Company for the purpose of carrying on the litigation with the ghatwals and to wrest the lands from their possession. Therefore it was impossible to conceive that the zamindar could be a party to any fraud in imposing the ghatwali incidents upon these lands. It has also been shown that the ghatwals themselves were anxious to retain these lands as ghatwali lands and as distinct from the rent paying mal lands. The rubkaries referred to above are abundant proof of the attitude of the ghatwals with respect to the lands in question. They believed that this was the incident of the tenure from before the assumption of the power by the British Government and at least from the time of the Permanent Settlement.

Therefore there is no substance in the suggestion made by the plaintiff that the ghatwali incident was imposed upon the tenures by the Government officers on account of any fraud or collusion.

Mr. Mullick, during the long course of his argument, has not said a single word against the documents and the transactions referred to above which contain the admission of the ghatwals with respect to the incidents in question, and in fact there is nothing on the record to shake the credit of those documents.

He, however, suggested that the admissions made by the ghatwals were due to their ignorance of the real incidents of the tenure and that those admissions would not destroy the true character of the tenures, and that Mr. Mathewson having purchased them at auction sales is entitled to treat the tenures as hereditary and permanent and free from the liability to perform duties or to forfeiture for non-performance of the same. There is, however, no evidence to show what the incidents of the tenancy at its inception were. But the argument of Mr. Mullick is based upon the fact that the tenures in question were within the ambit of the Zamindari of Manbhum settled with the Raja and the jama of the entire Pargana was fixed at a lump sum of revenue payable by the zamindar and that this fact shows that revenue was assessed upon these lands and that consequently the Government has no right to evict the holders of the tenure for any reason whatsoever. He further contends that even if the ghatwals have been rendering public services they do not hold the tenures in lieu of remuneration for the services but the services were imposed upon them as a burden and that consequently the non-performance of the duties or the dismissal of the ghatwals will not entail forfeiture of the lands. In support of his contention he relies upon the cases of Raja Lelanund Singh Bahadoor v. The Government of Bengal, Joykishen Mookerjee v. The Collector of East Burdwan and Bitjo Roy Phareedar, Munrunjun Singh v. Raja Lelanund Singh, Raja Lelanund Singh v. Kunhya Loll, Raja Lilanund Singh Bahadoor v. Thakur Manoranjan Singh Bahadoor, Alexander John Forbes v. Meer Mahomed Tuqee and Secretary of State v. Sri Raja Kritibas Bhwpati Hari Chandan Mahapatra. Most of these cases related to Kharackpur ghatwali tenures, some to Bhagalpur, Purnea and Bankura, and none to the tenures in Barabhum concerned in the present case which differ from those (Exhibit Z-159).

In the aforesaid cases for the purpose of making Permanent Settlement of the estates concerned, every village of the estate and the particulars of the lands to be exempted from assessment were in 1789–1790 entered in a register and a sanad in each case was granted by the zamindar to the holders of the tenures concerned in those cases. In 1792 the police powers were withdrawn from the zamindars in those cases and the Government appointed its own police officers and levied a tax under Regulations 49 and 50 of 1792 for defraying the expenses of the police establishment and the zamindar gave up the lands which they held free of revenue or at a reduced revenue for the purposes of keeping thanedars. After this, the Permanent Settlements in those cases were made in 1793. In Barabhum to which the tenures in the present suit appertain, the jama was not fixed village by village, nor any detailed statements of the lands assessed to revenue and those exempted from revenue were prepared. While making the settlement in 1776 at a fixed low jama without allotting it upon the several villages or the lands comprised in the estate, Mr. Higginson imposed a condition upon the zamindar that he would be responsible for guarding the boundaries of the estate in order to protect the travellers and traders and preserving internal peace. He took a separate engagement from the zamindar to that effect, which was repeated in the kabuliyat executed at the time of the Decennial Settlement which became permanent. While the police powers were withdrawn from the other zamindars, the zamindar of Barabhum was by special Regulation XVIII of 1805 required to enter into separate engagement to perform the police duties as before.

According to the official reports, before the British brought the estate into subjection, the zamindar of Barabhum occupied the position of a sovereign power paying no revenue, or from whom a nominal revenue was either taken or exacted. The zamindar employed the sardars, pikes and their subordinates to perform both the military and the police duties in order to guard the passes from attacks from outside and to preserve internal peace, and as remuneration for the service they held lands at a nominal rent called panchak.

In the present case the zamindar received only a nominal or quit-rent which was far below the rents which would have been payable had the lands been ordinary rent-paying lands and had no consideration been made for the remuneration for the services rendered by the holders thereof. According to the report of some of the officers they were one-third of the actual rents, and according to others one-fourth. The rents were certainly low whatever be the proportion: for instance, the panchak rent of taraf Panchsardari is Rs. 160, whereas in 1890 the cesses were stated in his plaint (Exhibit P) by Mr. Mathewson to be Rs. 430-4-3 and were found in 1911 when the record-of-rights (Exhibit A) was prepared, to be Rs. 1,648-8-3. The ekjai papers and tirij jamabandies showed the total rental to be Rs. 137 so that even if these lands be deemed to have been taken into account at the time of the Permanent Settlement, the panchak rent only must have been considered in assessing the revenue. The word ‘panchak’ itself indicates nominal or quit-rent. Therefore it must have been presumed that the rest of the income of the lands was appropriated by the holders thereof as remuneration for their services and they were not taken into account in assessing the revenue. The zamindar was appropriating the balance of it in the shape of services rendered to him by the holders, and afterwards the Government appropriated the same in lieu of the services, and only panchak rent was payable to the zamindar. The fact, however, is that the entire revenue of the estate was fixed low in consideration of the police services rendered by the zamindar which he was doing through the holders of these tenures.

After the assumption of power by the British Government, the police services which the sardars, pikes and their subordinates rendered to the zamindar came to be rendered by the British Government and they continued to pay the low rent or panchak for the lands held by them, to the zamindar. They became Government police officers subordinate to the zamindar. Their appointment and dismissal were vested in the Magistrate of the district [vide rule 5 framed by Mr. Strachey in Exhibit Z(48) and the Government order (Exhibit 7-51)].

The police powers were subsequently withdrawn from the zamindar, but these tenure-holders continued to perform the services of subordinate police.

The evidence in this case shows that though the origin of the tenure is not known, the holders thereof performed the duties of dependent police officers and as remuneration for the services they enjoyed the profits of the lands paying a quit-rent to the zamindar. The vacancy in the office caused by death, incapacity, neglect of duty or other misconduct is filled in by the Government. In case of death or incapacity caused by infirmity or old age, the male descendant of age of the last holder or some other member of the family best qualified for the situation is generally selected as successor. In this sense the tenure may be called hereditary. If, however, a ghatwal is dismissed from his situation for neglect of duty or other misconduct, he forfeits the tenure and his son or other members of the family are incapacitated, and some other person duly qualified is appointed, who gets possession of the tenure. The tenure is held only so long as the holder thereof performs the services. The right of appointment and dismissal vests in the Government.

These are the incidents stated by Mr. Hoppner in his letter contained in Exhibit Z(53), dated 27th September, 1886, which relate to all the Jungle Mahals. They relate to all the parganas in the Jungle Districts including Barabhum to which the tenures in question appertain, and not only to Pargana Bishunpur with which the investigation started. This is clear from the letter of the Nizamat Adalat of the 25th April, 1815, contained in Exhibit Z(53) and the concluding words of paragraph 9 of Mr. Hoppner's letter already referred to.

Apart from Mr. Hoppner's letter, the aforesaid incidents have been fully established by the evidence in this case, and, therefore, I hold them to be the incidents of the tenures in question.

These are incidents of the lands held by them as distinct from the mal lands of the zamindar with respect to which they may be said to be their bhumihari tenures.

Mr. Risley in paragraph 51 (Exhibit Z-64) and Mr. Bompas at page 514 of the paper-book (Exhibit Z-65) show that a distinct sheet from the ekjdi tirij jamawasilbaki papers is missing from them and hence no inference can be drawn from the entry of the Mahal Bhumijani as rent-paying tenure which probably relates to the lands held by them as the bhumijani tenure referred to above. The two classes of lands held by the ghatwals have been throughout maintained. It is not disputed by any one. Mr. Mathewson, the zamindar and others accepted it. The view of the officers resting the claim of the ghatwals upon the ground of their being bhuiyas, the original settlers of the lands, as having permanent rights is consistent with their holding two kinds of lands, the mal lands and the ghatwali or the service lands.

The tenures in the present case differ from those dealt with in the cases referred to by Mr. Mullick, and the Incidents of the tenures in those cases were determined in accordance with the sanads granted by the zamindar to the tenure-holders. In the present case no such sanad has been produced. Those cases were cases of resumption of the tenures under clause (4) of section 8 of Regulation I of 1793 brought either by the Government or by the zamindar, and the claims for resumption were dismissed upon the ground that the tenures were not shown to be lakhiraj lands.

The present case is not a case of resumption, and so far back as 1800 Mr. Strachey recorded his opinion that:

“no resumption of the paikan lands took place or ever could take place consistently with the terms on which the zamindars hold their lands in any of the Jungle Mahals” (paragraph 9 of his letter of the 9th April, 1800, in Exhibit Z-48).

The record-of-rights has also entered the tenures as “not resumable.” The present is a case of forfeiture of the lands on account of the dismissal of Mr. Mathewson from his office as ghatwal on account of his incompetency or misconduct.

Mr. Mullick says that even if the ghatwals were required to perform the police duties, it was not an essential condition of the grant of the tenure in the sense that the holding thereof did not depend upon the performance of the duties but that the tenure was burdened with the service and therefore the dismissal of Mr. Mathewson does not entail the forfeiture of the tenure.

The decision of this case does not depend upon whether the grant of the tenure was burdened with the service or it was a grant for the purpose of remunerating the services performed, for in the case of Alexander John Forbes v. Meer Mahomed Tuqee while holding that in the latter case the grant is determinable when there is no further occasion for the services, and in the tenure burdened with service, the lands are not liable to be resumed when there is no occasion for the performance of those services, their Lordships observed that “they (the grantees) may be liable to forfeit the tenure if they wilfully fail in the performance of this duty.” The Right Hon'ble Sir James W. Colvile observed: “Had this been a grant reserving to the zamindar a small money-rent, as well as the services, if indeed the latter are reserved to the zamindar, their Lordships would have had no doubt upon the case,” namely, that the grantee would have forfeited the tenure if he had wilfully failed to perform his duty; vide also Raja Leelanund Singh v. Kunhya Loll.

It seems to have been concluded by the decisions of the Judicial Committee that where a tenure is subject to certain services a ghatwal may be dismissed for “neglect of duty or incompetency” even when his tenure cannot be put to an end on the ground that the services were no longer required.

In Raja Lilanund Singh Bahadur v. The Government and Thakur Manoranjan Singh and Raja Saheb Prashad Sen v. Maharaja Rajendra Kishore Singh, while dismissing the claim of Government to resume ghatwali tenures in Kharuckpore, their Lordships of the Judicial Committee in assessing the mesne profits for the period during which the Government after resumption was in possession took into account in favour of the Government the value of services which during that period the ghatwals had ceased to render on account of Government being in khas possession upon the theory thus stated by their Lordships: “Now, what is the theory of the ghatwali lands? They are assigned to the ghatwals for maintenance in return for, and in payment of, police duties performed by them, and this remuneration they receive in lieu of wages in money;” [vide also Secretary of State v. Sri Raja Kritibas Bhupati Hari Chandan Mahapaira].

In the case of Manoranjan Singh v. Raja Lelanund Singh where the zamindar had granted by a sanad mukarrari istamrari right in the tenure and had made it hereditary subject to the payment of fixed and established rent to the zamindar it was found that the tenure was analogous to the Birbhum tenures subject to the performance of police service and consequently the Government or the zamindar could not defeat the rights of the ghatwals so long as they were willing to perform the service, but their Lordships observed that for misconduct and failure to perform the conditions annexed to their tenures they were, no doubt, liable to be, and sometimes were ejected and when so vacant the right of nomination no doubt rested with the zamindar.

In the case of Raja Neelanund Singh v. Surwan Singh, where the patta granted by the zamindar showed that the holder of the tenure had engaged to perform certain police duties and the zamindar had reserved to himself the power of suspension or dismissal, it was held that whatever may have been the former right and status of the defendants tenure-holders they became extinct by the patta and the zamindar was at liberty to determine the tenure when the services were no longer required and that there was no necessity of going into the origin, history and character of the ghatwali tenure [vide also Raja Neelanund Singh v. Nusseb Singh and Raja Leelanund Singh v. Kunhya Lall, already referred to].

In the case of Secretary of State v. Poran Singh where under the Government letter, dated 5th July, 1806 (similar to letter Exhibit Z-151), the appointment was vested in the magistrate of the Jungle Mahals, as in the present case, and the ghatwal had no evidence to show that he had any title independent of services as ghatwal to hold the land in question, it was held that the power of appointment in the Magistrate carried with it placing him in possession of the ghatwali lands and that a civil court cannot reinstate a ghatwal dismissed by the police authorities and that the right to possess the land depended upon the tenure of the office [vide also Debakar Singh v. Radhagobindo Singh and Devi Narain Singh Ghatwal v. Sri Krishan Singh (a Birbhum ghatwali case)].

The cases of Godadhar Banerjee v. Government and Pitambar Deo v. Jagannath Rai Ghatwal show that although the Government could not resume or sue for khas possession of a ghatwali village included in a decennially settled estate, it can bring a suit for a declaration of its right to nominate a ghatwal or receive services from a ghatwal and to maintain its nominee in possession as ghatwal. The view has been confirmed in the recent Full Bench case of Hemendra Nath Roy v. Upendra Narain Roy, which related to a digwar of Ghat Burrah. In that case repeated instances of appointment and dismissal with the corresponding change of possession of the land were given in evidence. Sir Lawrence Jenkins, C.J, held that whether the office was hereditary or not (no sanad was forthcoming) it appeared from the course of succession that there was a general usage that on the death of a digwar holding office his successor was appointed in his place and the heir's claim and tenure of office was dependent on the approval of Government. Therefore on the removal of the ghatwal, his successor acquired the valid title to the office only if appointed thereto by the executive Government. To the same effect was the view of Mookerjee, J., who observed that ‘the office is not hereditary in the sense that the heir of the last owner is entitled as a matter of right to succeed to the office and the holder of the office is liable to be removed for failure to discharge his duties to the satisfaction of the executive Government.’ On the removal of the digwar, his successor acquired a valid title to the office only if appointed thereto by the; executive Government.”

The unanimous view of the Court was that a civil court has no jurisdiction to re-instate a digwar dismissed by the executive Government as unfit to discharge his duties; but where the Commissioner decides against a claimant, not in the exercise of his discretion but upon an erroneous view of the title of the contestant, the civil court can grant relief by a declaratory decree under section 42 of the Specific Relief Act, so that the plaintiff may approach the executive Government and seek their decision on the question of the appointment of a successor to the office of a digwar. Upon the principle that the tenure may be available for service and that in case of dismissal the successor of the dismissed ghatwal may easily obtain possession of the properties, the ghatwal is not competent to alienate by private sale or otherwise, nor is the same liable to sale in execution of decree except with the consent and approval of the zamindar where the services are rendered to him, or of the Government where the services are rendered to the Government: vide Raja Lilanund Singh v. Durgawati, Lola Guman Singh v. Grant, Sartekh Chandra De v. Changer Singh (a Birbhum case); Grant v. Bangsi Deo B.L where it was held that a Birbhum ghatwal was not competent to grant leases in perpetuity, nor could he give a patta binding upon the subsequent ghatwal [followed in Narain Mullick v. Badi Roy]. This practically overruled the earlier decision in the case of The Deputy Commissioner of Birbhum v. Rangola Deo(6).

The above restrictions apply also to a shikmi ghatwali tenure [Bally Dobey v. Banei Deo(7)].

On the same principle only the surplus proceeds of a tenure collected during the lifetime of the judgment debtor are liable to be taken in execution as being his personal property, but not so the profits after his death, in the case of Ramchunder Singh v. Raja Johar Zooman Khan the tenure-holder was held not entitled to any share in compensation allowed for the acquisition of lands but only to the interest accruing therefrom during his life-time, inasmuch as the tenure-holder's interest in ghatwali lands was limited to his life.

The point has been discussed in all its aspects by their Lordships of the Judicial Committee in Nilmani Singh Deo v. Bakranath Singh. It related to a mahal of Jagir in the Zamindari of Pachet, succession to which was subject to the sanction of Government (as in the present case), the jagirdar being bound to render public services. One-third of the revenue assessed upon the Jagir mahal was retained by the jagirdar forming no part of the Zamindari assets on which the jama of the latter was fixed. It was held that whether the Jagir was a ghatwali tenure or not, within the meaning of the term as applied in Regulation XXIX of 1814 (the Zamindari being Pachet adjoining and at one time included in Birbhum), the Jagir was analogous to such tenure as described in the pre-amble to that Regulation; that the nature of the tenure had not been altered by the Permanent Settlement after which the services due by the jagirdar remained as before, public services, and continued to be due to the Government; that the zamindar became entitled only to the rent or revenue which was previously due to the Government and in respect of which he was assessed and did not become entitled to the service in respect whereof one-third of the rent or revenue was allowed as compensation to the jagirdar; that the Jagir though hereditary was not subject to the ordinary rules of inheritance according to the Hindu or Muhammadan Law but was held upon the condition of approval of the heir by the Government; that thus were precluded both division of the Jagir mahal upon the death of the holder and alienation during his life-time; that the Mahals were not liable to attachment and sale in execution of a decree against the father and predecessor-in-interest of the jagirdar as assets by descent in the possession of the latter. It was found in that case that neither the origin of the Jagir nor the precise time at which it was created was known, but that so far back as 1771 (1178, B.C) the villages were held by jagirdars who paid Government two-thirds of the annual value thereof as revenue and retained the remaining one-third as remuneration for the services under which the Jagir was held. Two-thirds of the annual value was permanently settled as part of the Zamindari of Pachet, and the one-third received by the jagirdar in lieu of the services formed no part of the assets of the Zamindari in respect of which the Government revenue was fixed. The jagirdars were successively appointed or approved by Government up to the time of Gurucharan Mookerjee appointed in 1816 in place of Rup Singh who was dismissed for misconduct. Upon these facts their Lordships held: “It is quite true that if the jagirs were transferable without the consent of Government, either by descent to an heir or by voluntary sale or by sale in execution or otherwise, there will be no security that the transferee would be a proper person to discharge the duties in respect of which the lands are held at the reduced rent.” The transferee might be a person of questionable or even of bad character as remarked by the Court in the case of Narain Acharjee Chowdhry v. Mohamaya Debia Chwodhrain.

Applying the principles enunciated in the cases referred to above, it becomes immaterial in the present case whether the lands were included in the decennially settled estate of the zamindar or not, for that question could only be relevant if the present case were a suit for resumption. It is also immaterial whether the tenures were hereditary or burdened with service or were grants on condition of rendering services, for, the question could be important only if Mr. Mathewson were dismissed on the ground that the services were no longer required, whereas in the present case he has, been dismissed for misconduct and neglect of duty, and on such dismissal he forfeits the tenures whether they were burdened with services or were purely service tenures granted on condition of performing services. It is also immaterial in the present case whether the services were originally of military character, for ever since anything is known of the tenures the holders thereof besides the military duties “doubtless performed police duty” to quote the words of the Government resolution (Exhibit Z-59) of the 18th August, 1876, and they held the lands as remuneration for the performance of the duties.

In the case of Raja Lelanund Singh Bahadoor v. The Government of Bengal speaking of the Kharuckpore ghatwali tenures, the Right Hon'ble Pemberton Leigh says: “The ghatwali lands were held by a tenure created long before the East India Company acquired any dominion over the country and though the nature and extent and the rights of the ghatwals in the ghatwali villages may be doubtful and probably differed in different districts and different families there clearly was some ancient law or usage by which these lands were appropriated to reward the services of ghatwals, services which although they include the performance of duties were quite as much in their origin of a military civil character.”

In the subsequent case of Raja Lilanund Singh Bahadur v. The Government and Thakur Manoranjan Singh and Tekait Loknath Singh, Loch, J., observes that these lands were “assigned to the ghatwals for maintenance in return for, and in payment of, police duties performed by them, and this remuneration they received in lieu of wages in money”, and their Lordships of the Judicial Committee in the case between the same parties [Raja Lilanund Singh v. Thakur Munorunjun Singh] held that the holders of such tenures might be “dismissed for neglect of duty or incompetency” and in the case of Alexander John Forbes v. Meer Mahomed Tuqee it was held that upon dismissal they may be liable to forfeit the tenure if they wilfully fail in the performance of their duty, though the lands are not liable to be resumed when there is no occasion for the performance of those duties. As a matter of fact ever since the assumption of the charge of the Pargana the Government exercised the right of appointment and dismissal, and the dismissed ghatwal forfeited the lands which were made over to the person appointed by the Government in his place.

The files regarding the appointment and dismissal of the sardar ghatwals and their subordinates by the Government are voluminous. It will be sufficient to refer to only a few of them.

As to the principal tenure taraf Panchsardari of defendants 2 and 3, vide Exhibits Z(101) 1885, and Z(132) 1894–1898. Bishwembhar Singh was the sardar ghatwal and had obtained a sanad in 1855. He was dismissed upon the complaint of Messrs Watson and Company, by the Deputy Commissioner, for having aided and abetted a riot when the servants of the Company went to sow indigo in the village. However, on appeal, he was re-instated by the Commissioner on the ground that his presence at the riot was not proved.

As to Ghat Ramni, vide Exhibits Z(140-b), 1871; Z(140-d), 1900; and Z(119), 1904–1905. In 1900 the sardar ghatwal was suspended for failure to assist an amin who had been deputed to measure lands in Panchsardari upon the complaint of the tabedar of Ramni that Mr. Mathewson had dispossessed him of his ghatwali land and included it in his mal lands. He was eventually dismissed, and on the nomination of Mr. Mathewson a successor was appointed.

As to Ghat Jugilong, vide Exhibits Z(111) 1859 and Z(140-c) 1906. In 1906 the tabedar of ghat Jugilong in taraf Panchsardari incurred debts and alienated the “service lands”, and went away to, Assam. He was dismissed, and in his place a stranger Radha Nath Singh was appointed, his brother having been found to be unfit. Possession of the ghatwali lands was given to the newly appointed tabedar, and Jagat Singh and his brother were deprived of the same.

As to Ghat Katjore of defendant No. 4, vide Exhibits Z(109) 1860, and Z(129) 1901–1903. In 1901 the ghatwal was fined for absence without leave. In another instance the ghatwal was suspended for the same reason and eventually dismissed, and his successor was appointed.

As to Ghat Tentla of defendant No. 8, vide Exhibits Z(124) 1865, and Z(110) 1869.

As to Ghat Hanksara of defendant No. 10, vide Exhibits Z(114), 1858; Z(140-a), 1859; and Z(122), 1870. In 1859 the ghatwal absconded and his successor was appointed. In 1870 a vacancy occurred and the appointment was made by the Deputy Commissioner on the nomination of Bishwembhar Patra, sardar ghatwal of Panchsardari.

As to Ghat Tilla of defendant No. 7, vide Exhibits Z(136), 1903–1904; and Z(140-e) 1909–1910. A mortgage of this ghat was not recognized and the son of the ghatwal was allowed to succeed and to take possession of the property only after discharging the mortgage. The ghatwal was dismissed for having been convicted in a criminal case. He was a nominee of Mr. Mathewson, and upon his dismissal another nominee of Mr. Mathewson was appointed.

As to Ghat Pitki of defendant No. 6, vide Exhibits Z(125), 1886–1899; Z(128), 1896–1900; Z(149), 1881–1893; Z(142), 1884–1888. The successors of the ghatwals were from time to time appointed and put in possession of their property. The entire file of Ghat Pitki is interesting and affords valuable a information as regards the procedure about the appointment and dismissal of ghatwals. The ghatwals used to be dismissed for misconduct and neglect of duty and upon dismissal they forfeited the ghatwali lands which used to be given to their successors. Most of these proceedings were started at the instance of Messrs Watson and Company and Mr. Mathewson, through the ghatwali inspector. The record further shows attempts of Mr. Mathewson as the representative of the zamindar to include the ghatwali lands in mal lands and that several times an amin had to be deputed to demarcate and distinguish the ghatwali lands from the mal lands.

As to Ghat Adardih, vide Exhibits Z(113), 1859; Z(121), 1865–1870; Z(108), Z(115) and Z(112) from 1877 to 1895. In 1859 a successor was appointed by Government on the nomination of the zamindar. In 1866, after the police were withdrawn from the zamindar the nomination was transferred to the sardar ghatwal with respect to the subordinate ghats, and one Gopal Bhumij was appointed to succeed his father, and at his request his uncle was appointed in his place in February 1867 and his name was entered in the ismnavisi. In July 1867, Gopal Singh wanted to resume his duties. This was disallowed by the authorities. In 1892 the ghatwal left his Ghat without permission, saying that he left his younger brother to do work for him, and did not return until January 1894. During his absence he was dismissed and his claim to be re-instated was disallowed. He appealed to the Commissioner who rejected his appeal saying:

“The petitioner has no claim to the ghat. He left it voluntarily to settle in Singhbhum and cannot expect to be allowed to revert to it because he has returned to the Manbhum district.”

This case is very similar to the case of the present plaintiff.

The above files relate to taraf Panchsardari and the subordinate tenures. The same appears to be the practice with regard to the other tarafs in the pargana, namely, Dhadka, Tinsuiya and Saturkhani.

As to Ghat Malti in taraf Tinsuiya, vide Exhibit Z(143), 1876. In 1876 the sardar ghatwal was dismissed and in his place another man was appointed. The sardar ghatwal was dismissed for non-payment of panchak rent. His son Dharup Singh was not appointed, but one Tribhuan Nath Sardar was appointed. When Tribhuan Nath became old, Dhrup Singh laid claim to the ghat as being his ancestral ghat, nothing now being due from him. His claim was however, disallowed on the ground that after the dismissal of his father for default he had no claim left in him to be appointed ghatwal and that the heirs of Tribhuan Nath had preferential claim.

Exhibit Z(150), 1910–1911, relates to Dhadka. The sardar ghatwal was dismissed on account of his having been incapacitated by illness and one Inder Bhumij was appointed in his place on condition of his paying the arrears of the panchak dues.

The files show that since Messrs Watson and Company and Mr. Mathewson acquired interest in the Zamindari they got warrants issued against the ghatwals from time to time for arrest on failure to pay the rents due to them, and often they got their nominees appointed. The sardar ghatwals sometimes absconded to evade payment of the dues and were dismissed, and Mr. Mathewson's nominees were appointed. This went on until he purchased the mal as well as the ghatwali lands in the several decrees. The proceedings started by Mr. Mathewson show that he recognized the right of Government to appoint and dismiss a ghatwal for absence, neglect of duty, non-payment of panchak rent and misconduct.

These records show that the Government exercised the right of appointing and dismissing ghatwals and of making over the tenures to the person appointed in place of dismissed ghatwals for a period long anterior to the compromise of 1884. From 1883–1884 when Messrs Watson and Company took a lease of the Pargana from the zamindar, they as well as Mr. Mathewson as their manager and afterwards as purchaser of their interest and the interest of the ghatwals recognized the power of Government to appoint and dismiss the ghatwals and dispossess them from the ghatwali lands in order to make them over to their successors. It is significant that the sardar ghatwals and the ghatwals also recognized the above power of Government.

Mr. Mullick, however, contends that Mr. Mathewson having purchased the lands at auction sales in pursuance of the Government notification extending section 5 of the Birbhum Ghatwali Regulation to the tenures in question, these tenures became saleable and consequently Mr. Mathewson could not be evicted from them on account of his failure to perform the services, or dismissal from the office. There is no substance in this contention. Mr. Mathewson purchased the lands under the Government notification the terms whereof were that the purchase shall be on the:

“same conditions in respect of the payment in future of rent and cesses and the performance of the duties for the maintenance of the public peace to which the defaulter was liable at the time when the tenure was made over or sold.”

Mr. Mathewson himself applied for the extension of section 5 of Regulation XXIX of 1814 (Birbhum Regulation) and it was at his repeated representations that the Government extended the said provisions. He was feeling difficulty in realizing his arrears of rent, and having obtained the benefit of the extension of the provisions he cannot be permitted to turn round now and say that his purchase of the tenure was not subject to the conditions of rendering services to the Government and that the sanad obtained by him, whereby he was to hold the lands only upon the condition of performing the services, was null and void, and not binding upon him.

Mr. Mullick at one stage wanted to dispute the validity of the extension of the Regulation and of the sale held thereunder. He wanted to argue that the sale held under the Regulation did not alter the character of the tenure. He soon perceived the danger, of the argument and the possibility of its being used against himself, and he gave it up. It is obvious that if the extension of the Regulation was invalid, the sales were, therefore, also invalid and Mr. Mathewson did not acquire any right, under the sales, in the tenures in question, and now the tenures are in possession of the old holders, the rightful owners thereof; as according to Mr. Mullick, Mr. Mathewson cannot claim to eject them. His claim to the tenures is based entirely upon his purchases and if the purchases are invalid he has no title to them and has not acquired any by adverse possession, he being only a recent purchaser. The learned Government Pleader took advantage of this argument of Mr. Mullick and urged that the sales were all invalid and fraudulent. We have already shown that there is no substance in this contention. No fraud was definitely pleaded, nor was evidence directed towards it, and the evidence is overwhelming that the sales were held bonâ, fide for real rent decrees and under the notification issued by the Government extending section 5 of the Birbhum Ghatwali Regulation. We have not at this stage to go into the irregularities of the sales, and no substantial irregularity has been pointed out, for we are not at present concerned with the setting aside of the sales. This is not a suit for that purpose and the time and stage for impugning the sales on those grounds has long passed.

Now, the Government had undoubted power under the Scheduled Districts Act of 1874 to extend the provisions of the Birbhum Ghatwali Regulation or any other act in a restricted form. The Regulation was, therefore, validly extended.

Mr. Mullick then contends that Mr. Mathewson having purchased the properties for valuable consideration at an auction sales, he cannot be deprived of the lands upon the ground of his dismissal. In this also Mr. Mullick is mistaken, for whatever be the consideration for the sale—though Mr. Gait's letter of 1906 shows that the sales were, for inadequate prices—the sales had taken place on the conditions set forth above and therefore Mr. Mathewson is bound by the terms of the conditions, one of which was that he will hold the land only so long as he will remain a ghatwal and will lose the lands in case of his dismissal.

Again, it was argued that the sale conferred all the incidents upon the tenure which the Birbhum ghatwali tenures have got, which are covered by the Regulation in question.

In the first place, all the provisions of the Regulation were not extended but only that which provided for the sale of the lands for arrears of revenue with the conditions attached to it. Therefore the tenures in question will be governed by the terms under which they were sold. In the second place, Birbhum ghatwali tenures themselves though hereditary are liable to be forfeited on the dismissal of the holder thereof as well as any other tenure of that nature (Alexander John Forbes v. Meer Mahomed Tuqee, Raja Lilanund Singh Bahadur v. The Government and, Thakur Manoranjan Singh, The Secretary of State v. Poran Singh, Debakar Singh v. Radhagobinda Singh, Devi Narain Singh Ghatwal v. Sri Krishan Singh, Pitambar Deo v. Jagannath Rat Ghatwal, Godadhar Banerjee v. Government, Nilmani Singh Deo v. Bakranath Singh(8) and Ramchunder Singh v. Raja Johar Zooman Khan(9)].

Therefore even if the tenure in question was governed by the incidents of the Birbhum Ghatwali Regulation, the dismissal for neglect of duty or misconduct will entail forfeiture. Whether the Government has or has not a right to resume the tenure (and we are not concerned with this question), it certainly has a right to appoint a ghatwal and to receive services from the person appointed and to maintain its nominee in possession of the ghatwali lands [Godadhar Bonerjee v. Government and Pitambar Deo v. Jagannath Rai Ghatwal].

There should be no confusion between the resum-ability of a tenure and the forfeiture thereof on account, of dismissal of the holder thereof. The one has nothing to do with the other as is clear from the aforesaid authorities.

Therefore I hold that Mr. Mathewson took the tenure in question with the condition that he would remain in possession of it only so long as he continued to be the ghatwal and would lose the same on his dismissal.

On behalf of Mr. Mathewson it is said that the dismissal was not proper. We are not competent to enter into that question as was held in Debakar Singh v. Radhagobinda Singh, Devi Narain Singh Ghatwal v. Sri Krishan Singh and Hemendra Nath Roy v. Upendra Narain Roy.

Even if his dismissal were not proper, the question can only be considered with a view to see if he has been wrongfully deprived of the lands in question, for the recovery of which he has brought the present suit. If, however, he has been dismissed for misconduct or neglect of duty, he has forfeited the lands in question and cannot get any relief.

In the present case Mr. Mathewson was dismissed on account of his continued absence from the country and not having returned to his duties when required to do so by the Deputy Commissioner. It may now here be repeated, what has been said above, as to the necessity which the Government felt of framing rules for the appointment of substitutes in case of the auction-purchaser of the tenures not being willing himself to serve.

The tenures were not saleable, and the Government used, to appoint proper persons to be ghatwals and to perform the duties and to settle the lands for the said purpose. Naturally after the introduction of section 5 of the Birbhum Ghatwali Regulation, the tenures passed into the hands of the auction-purchasers. It was, therefore, necessary to frame rules for the performance of the duties by substitutes or deputies. These rules (Exhibit Z-156) are contained in Government letter, dated the 28th March, 1907. Under the rules the nominee of the purchaser was to be approved by the Deputy Commissioner who had the right of removing the nominee and appointing a substitute without further reference to the purchaser and the purchaser was to continue to be responsible for the performance of the duties by himself and his substitutes. Some of the sanads obtained by Mr. Mathewson mention the names of the nominees who were approved of by the Deputy Commissioner, but he was, under the rules framed by Government, personally responsible for the conduct of his subordinates and deputies.

Mr. Mathewson's conduct was far from satisfactory after he purchased the tenures. In 1906 he wanted to sell the tenures along with the Zamindari that he had purchased from Messrs Watson and Company, to the Midnapore Zamindary Company (Exhibit Z-74, dated 27th July, 1906). This was disapproved by the Government, and the Government asked for a report as to the desirability of selecting the persons who were to perform the duties attached to those tenures if Mr. Mathewson was unwilling to perform them himself: (Exhibit Z-79, dated 9th October, 1906). This was upon the report (Exhibit Z-74, dated 22nd August, 1906) of Mr. Gait who had serious objection to the proposed sale of the tenures by Mr. Mathewson.

Mr. Mathewson, however, did not sell the tenures in question, but sold only the Zamindari interest (Exhibit Z-76, dated 10th August, 1906) to the Midnapore Zamindary Company of which Mr. Knowles was the manager.

In January 1907 Mr. Mathewson was dismissed from Ghat Ramni for his attempts to dispossess the tabedar of that ghat and to amalgamate the ghatwali lands into mal lands.

Knowing the aforesaid rules and the inclination of Government that the Midnapore Zamindary Company should not have the ghatwali tenure and in fact it was anomalous that the zamindar should combine in himself the dual capacity of a superior landlord and of a ghatwal responsible to Government for the police duties, Mr. Mathewson in opposition to the wishes of Government submitted the name of Mr. Knowles, manager of the Midnapore Zamindary Company, to act for him during his leave for eight months from April to November, which he applied for on 12th March, 1908 (Exhibit Z-88). The leave was granted, but naturally the nomination of Mr. Knowles was rejected and the Deputy Commissioner pointed out to him in his letter (Exhibit Z-89), dated the 25th March, 1908, that Government would regard as his representative the sardar and other ghatwals who were appointed as his deputies on his recommendation to perform the duties attached to each ghat. Mr. Mathewson did not return after the expiry of his leave and applied again for leave on the 14th of February, 1909, and again he nominated Mr. Knowles, the manager of the Midnapore Zamindary Company, stating that he would continue to hold power from him to perform the duties.

Mr. Knowles on enquiry said that Mr. Mathewson would return on the 3rd March, 1909 (Exhibit Z-91), dated 21st February, 1909. Again, Mr. Mathewson did not return and the Deputy Commissioner, Mr. Coupland, drew up a proceeding against him (Exhibit 10), which runs as follows:

“Whereas it appears that in December, 1906, you took leave out of India for nine months and again in April, 1908, for eight months and on your return barely if at all, visited Barabhum and whereas again in February, 1909, you appled for leave intimating that you would ??? in November or December, 1909 and up to date you have not returned and so far as I am informed, have no present intention of returning to India, you are hereby directed to show cause before me within 2 months from this date, why your services as taraf sardar, sadial, and village sardar as noted above should not be dispensed with on the ground that your continued absence from India (and when in India from your ghats as aforesaid) is inconsistent with your holding the position of ghatwal whether as taraf sardar, sadial or village sardar, in the various ghats above-mentioned, in which you at present nominally occupy that position. Camp Narainpore, the 24th January, 1910. (Signed) H. Coupland, Deputy Commissioner, Manbhum.”

Mr. Knowles in his letter of the 2nd February, 1910 (Exhibit Z-92), stated that Mr. Mathewson was not able to return to India on account of illness and prayed for further leave for nine months, allowing him (Mr. Knowles) to perform the duties of ghatwal during his absence as heretofore. The Deputy Commissioner in his letter, dated 9th February, 1910 (Exhibit Z-93), refused the extension asked for, stating that he was not aware of any orders under which Mr. Knowles was considered as acting on behalf of Mr. Mathewson.

Mr. Mathewson showed cause by his letter written from England to the Deputy Commissioner on the 4th March, 1910, in which he justified his absence stating that he had made arrangement for his absence and that having purchased the ghats for valuable consideration he had a “certain degree of permanency” provided the services were duly rendered.

On the 23rd August, 1910, the Deputy Commissioner by his order (Exhibit 10-a) directed that:

“In the event of Mr. Mathewson not returning to his regular residence in Barabhum by the 1st December, 1910, his services as ghatwal in the various ghats mentioned in the proceeding drawn up against him be dispensed with effect from that date.”

Aggrieved by this order, Mr. Knowles, manager of the Midnapore Zamindary Company, Limited, on behalf of Mr. Mathewson appealed to the Commissioner. The appeal was dismissed by the order of the Commissioner, dated the 14th December, 1910 (Exhibit 10-b). The Commissioner in his order states:

“It cannot be denied and it is indeed freely admitted by the pleader who has appeared before me that Mr. Mathewson is liable to be removed if he fails to comply with conditions laid down in the notification of the Bengal Government. Mr. Mathewson has himself been removed on former occasions from such a tenure and the order of dismissal was upheld on appeal, by the Commissioner, and the Government of Bengal: vide Bengal Government Resolution No. 2433 F.E dated 30th September, 1907.”

This resolution is Exhibit Z(87) in the case.

Then the Commissioner deals with his absence from the ghat as being incompatible with the performance of the duties for the maintenance of public peace to which Mr. Mathewson was liable at the time of the sale of the tenure. In his opinion his residence in Europe was manifestly a failure to comply with the condition and it was obvious that Mr. Mathewson could not perform his duties for the maintenance of the public peace if he did not reside in Barabhum and as a non-resident he could not exercise any control ever the working of the ghatwals or over the internal economy of the ghats, for which under the rules he was personally responsible.

As to Mr. Mathewson's right to put in a substitute or substitutes, the Commissioner says:

“According to the custom and practice obtaining in the district substitutes/are admitted with the Deputy Commissioner's sanction in cases of short absence, illness and the like, and the substitute is ordinarily a relation whose interest it is to look after the welfare of the ghats on behalf of the permanent incumbent. On such occasions the responsibility of the permanent man for the acts and omissions of his substitute continues, but such a custom or practice confers no right to put in what would be practically a permanent incumbent on Mr. Mathewson's severing his connection with the tenure on leaving this country. It has been ruled that no substitute can be put in without the Deputy Commissioner's approval.”

Mr. Mathewson then submitted a memorial to the Government, but the order of the Commissioner was upheld by the Government by its resolution, dated the ‘19th July, 1911 (Exhibit 10-c).

The above correspondence clearly shows that Mr. Mathewson was dismissed for continued absence and for his having no intention to return to his duties and for his past conduct when he was dismissed from Ghat Ramni and his trying to put in his place Mr. Knowles, manager of the Midnapore Zamindary Company, fully knowing that the Government was against the Midnapore Zamindary Company having anything to do with the ghats in question. These to my mind, appear to constitute incompetency, neglect of duty and misconduct.

Now, the appointment files referred to above show that for absence from the ghats and for remaining away without leave and for other causes the Government exercised the right of dismissal, in most of which Mr. Mathewson himself moved in the matter for dismissal of the defaulting ghatwals, and upon dismissal the lands were forfeited and made over to the newly appointed ghatwal.

Therefore we cannot say that the dismissal in the present case was not justified, and it is certain that dismissal for any of the reasons aforesaid entails forfeiture. Mr. Mathewson admits in his plaint that the Government has been exercising the right of appointment and dismissal, particularly for misconduct. Therefore the Government exercised the right which they possessed in dismissing Mr. Mathewson.

Therefore the reliefs (a) and (b) regarding the declaration as to the dismissal being illegal, improper and without jurisdiction must fail. The consequential relief in clause (c) for declaring his right to the properties and awarding possession thereof must also fail.

The result is that the decree of the Court below is affirmed and the appeal is dismissed with costs.

Respondent no. 4 Hriday Nath Singh Patra, who was defendant no. 4 of Ghat Katjore, died during the pendency of this appeal on 31st October, 1922. The appellant applied for substitution of his two sons; one Somer Singh major and the other Chaitu Singh minor were substituted under the guardianship of the Deputy Registrar of this Court. Somer Singh has not entered appearance. Mr. Siveshwar Dayal appears for the Deputy Registrar. He says that the appellant did not say in his petition that the minor was appointed ghatwal in place of his deceased father respondent no. 4, and the Deputy Commissioner also did not give any information. Therefore the minor was not a party to this litigation and he should not have been substituted. Mr. Siveshwar Dayal is not in a position to say whether his client is or is not in possession of the ghat in question, which is the subject-matter of the suit. The Government did not object to his being substituted. Substitution has already taken place. We do not think his name should be removed at this stage. The appeal having been dismissed, he is entitled to his costs as are the other respondents.

It may be “noted that the respondents other than the Secretary of State for India in Council and the minor represented by Mr. Siveshwar Dayal did not appear at the hearing of this appeal. The costs awarded against the appellant should, therefore, be apportioned only between the Secretary of State for India in Council and the minor for whom Mr. Siveshwar Dayal appears.

Mr. Abani Bhushan Mukherjee, for the respondents other than the Secretary of State for India in Council, appeared at the early stage of the case but not at the hearing, and he states that he had no instructions from the respondents although he had written to them.

Ross, J.:— I agree.

Appeal dismissed.