Rani Sonabati Kumari v. Raja Kirtyanand Singh

Fazl Ali and Saunders, JJ.:— These five appeals arise out of a title suit and four rent suits which were instituted by the proprietors of a large estate in Bihar, known as the Banaili Raj (which includes now the ancient zamindari of Mahalat Kharagpur) against the present holder of a ghatwali property in the district of the Santal Parganas known as the Handwe Raj. In the title suit, which is the suit with which we are principally concerned and in which the Secretary of State for India in Council has been impleaded as the second defendant, there are broadly speaking two main questions to be determined and these may be stated as follows:—

(1) Whether the Handwe Raj is a Government ghatwali or a ghatwali subordinate to the Khjaragpur estate, and

(2) whether the status of the holder of the Hand we Raj is that of a proprietor of an estate or that of a tenure-holder under the proprietors of the Kharagpur estate.

The rent suits were tried with the title suit because the defendant claiming Handwe to be an estate of which she is the proprietress raised the plea that the amount annually payable for that estate to the proprietors of the Kharagpur estate was not in the nature of rent but was Government revenue which instead of being paid directly into the Government treasury was being paid through the Kharagpur estate. A further point is now raised in appeal before us and it is to the effect that certain arrears of cess, if not also of rent, which accrued in the time of the appellant's husband and predecessor-in-interest, Kumar Satya Narain Singh, cannot be recovered from her because as successor to the office of ghatwal she is not liable for the debts incurred by the previous incumbent.

The question whether Handwe is a Government ghatwali estate or it is held in some other capacity was raised on behalf of the ghatwals in two previous suits brought against them by certain mortgagee to neither of which the present plaintiffs were parties. It was first raised in the Mortgage Suit no. 363 of 1905 in which it was held by the Judge who tried the suit that Handwe was a Government ghatwali and therefore, not liable to be sold except with the consent of the Government [See Exhibit Z(1)]. The mortgagees appealed to the High Court, but before the adjudication of the appeal the parties compromised the case. Another Mortgage Suit (no. 2/16 of 1910) was instituted in 1910 by the Maharaja of Hetampur against the Handwe Raj and in this suit it was held by the trial court that Handwe was not a ghatwali tenure 1 but was an ordinary istimrari mukarrari tenure and as such transferable and saleable in execution of a mortgage decree. The High Court, however, came to the conclusion that Handwe was a Crown ghatwali and that as prior to the grant of the Dewani to the East India Company it was a Moghul ghatwali the effect of the assumption of the Dewani by the East India Company was to convert the allegiance of the ghatwal from an allegiance to the Moghul empire to an allegiance to the Company. It was further held that although the property was in its origin a ghatwali tenure, yet as for a long time no ghatwali services had either been rendered or demanded and as no ghatwal had for many years been appointed, it was no longer held as a ghatwali tenure and, therefore, it was liable to sale in the execution of a mortgage decree. The matter was then taken in appeal to His Majesty in Council and the Judicial Committee of the Privy Council partly agreeing and partly disagreeing with the conclusions of the High Court dismissed the entire suit [Satya Narain Singh v. Satya Niranjan Chakravarti]. The important findings of the Judicial Committee are summarised in the written statement of the defendant as follows:—

(1) The instruments (of title relied on by the defendant) contain words of grant and purport to make grants on behalf of and in the name of the East India Company. They must be so interpreted and this construction cannot be defeated merely because there may be ground for thinking that the grantees were already holders of these lands under earlier grants or on customary service terms. The tenure is therefore a Government tenure.

(2) As the grants are expressed to be istimrari mukarrari grants and as in fact the lands have for generations descended in the family of the defendant from ancestor to heir, they are a perpetual and hereditary tenure.

(3) The tenure is a service tenure and is ghatwali in its nature.

(4) A tenure so granted is inalienable and indivisible and cannot, be sold in execution of a decree against the person of the incumbent of the office of ghatwal for the time being.

(5) Neither by the terms of the grant nor by the general law applying to such ghatwali tenures is an actual appointment 6 the next heir to the ghatwali in the room of his predecessor requisite, nor is actual performance of the stipulated ghatwali services from time to time necessary. Readiness and willingness to perform them when required may be inferred where there is no proof of any) refusal to perform and where performance within a reasonable time. If required, is not shown to have become impossible.

While the appeal was pending before the Privy Council Survey and Settlement proceedings were in progress in respect of the greater portion of pargana Handwe (which consists of 13 taluks in all) and by his decision (Exhibit 75) dated the 14th July, (1923, the Settlement Officer held that pargana Handwe was held in istimrari mukarrari tenure which was permanent, heritable and transferable; that it was a tenure included in, and subordinate to, the Kharagpur estate held on rent not liable to enhancement and that no ghatwali services were due either to the Government or to the proprietors of the estate. On the 26th October, 1923, the Privy Council delivered judgment in the mortgage action brought by the Hetamrjur Raj to which we have already referred. Meanwhile Kumar Satya Narain Singh having died, his widow Sreemati Sonabati Kumari (the appellant in this Court) filed an application against the decision of the Settlement Officer under section 24 of Regulation III of 1872 claiming the taluks then in question as her (zamindari property and possessing all the incidents of a Government ghatwali. This objection was decided on the 8th September, 1924, by the Settlement Officer who declined to modify his previous decision and held once more that Rani Sonabati Kumari held I the taluks neither as zamindari nor as a Government ghatwali but as a permanent mukarrari tenure under Kharagpur which was heritable as well as transferable (Exhibit 77). In view of this decision the plaintiffs of the mortgage action of 1910 applied to the Judicial Committee of the Privy Council for a review of the order of His Majesty in Council or reconsideration of the appeal in the mortgage suit, but the application was dismissed on the 16th December, 1925, [Exhibit Z(6)]. Meanwhile Sreemati Sonabati Kumari had appealed against the order of the Settlement Officer to the Commissioner of the Bhagalpur Division and the learned Commissioner relying mainly on the judgment of the Privy Council directed the following entry to be made in the record-of-rights:

“Proprietor, Sreemati Sonabati Kumari, widow of Satya Narain Singh, deceased. Under head incidents, the following will be recorded Istimrari, mukarrari, Government ghatwali, inalienable, hereditary, indivisible. A note will be made that Government rent of the estate is paid through the proprietors of the Kharagpur estate” [See Exhibit Z(2)].

Against the decision of the Commissioner the plaintiffs moved the local Government by a memorial which was rejected on the 2nd March, 1925, one of the reasons why it was not considered a fit case for revision being that a remedy was open to the petitioners by way of a suit in the ordinary civil courts (Exhibit 78). It was in these circumstances that the Title Suit (no. 8 of 1925) was brought by the plaintiffs, first, for determination of the status held by the owner of the Handwe Raj in relation to the Kharagpur estate and, secondly, for correction of the entry in the record-of-rights. The plaintiffs after referring in their plaint to the history of Kharagpur and Handwe and some of the previous litigations between the parties and to the manner in which the Handwe proprietors have been treated in various officiaj records; asserted that in the circumstances of the case

“by the operation of the principle of res judicata and estoppel and operation of the statute of limitation the defendants are precluded from asserting that Handwe is independent of the plaintiffs' zamindari.”

The plaint concludes with a prayer for the following main reliefs:—

(1) That it be adjudged and declared that the plaintiffs 1 to 4 are the proprietors of the properties specified in Schedule I attached to this plaint and that the said properties are not Government ghatwali mahals.

(2) That all such questions concerning the relative positions of the said properties specified in Schedule I in pargana Handwe and Mahalat Kharagpur and the incidents, including the question whether the same, is an ordinary Kharagpur ghatwali, and the rights and interests of the parties to this suit to the same may be determined by this Court.

(3) That an order for correction of the entry in the record-of-rights be passed in such a manner as the court may deem just and proper having regard to the fact that the said property in pargaha Handwe specified in Schedule is in reality a dependency of Mahalatj Kharagpur.

No appearance was entered by the Secretary of State, nor was any written statement filed on his behalf. The present appellant, however, who is the defendant first party, filed a long written statement traversing most of the allegations made in the plaint either by specifically denying them or by stating that they were not admitted. The gist of the appellant's written statement is that Handwe is a Government ghatwali created in the first instance by the Moghul rulers and confirmed subsequently by the East India Company through their officer Captain James Browne and that the defendant is the absolute and sole proprietress of the Handwe estate; that the proprietors of Mahalat Kharagpur have no concern with the Handwe estate except as the medium for transmitting revenue into the Government treasury on behalf of that estate and that the entry in the record-of-rights correctly represents the defendant's status. Reference is also made to a protracted litigation which lasted from 1810 to 1819 between Raja Kadir Ali, the then proprietor of Mahalat Kharagpur, and lone Raja Jhaban Singh, an ancestor of the defendant's husband, and it is claimed that the points decided in that litigation are res judicata between the parties and conclusive as to the relative position of the two estates. Lastly, it is contended that the plaintiffs' suit is barred by the provisions of section 25A of Regulation III of 1872.

While this suit was still pending, four other suits were instituted by the proprietors of the Banaili Raj against the defendant for recovery of arrears of rent and cesses for the years 1328-1329, 1330, 1331-33, 1333-35 Fasli. These suits were originally instituted at Dumka, but they were subsequently transferred to Bhagalpur. The written statements that were filed by the defendant in these suits were on the same lines as the written statement in the title suit and although the broad fact that the amounts claimed were due partly from the appellant and partly from her husband was not seriously challenged, various technical objections were taken, to the maintainability of the suits and it was denied that the relationship of landlord and tenant existed between the parties and that the amount claimed was payable as rent.

As many of the points raised in these suits were identical with those raised in the title suit, the Subordinate Judge decided to try the five suits together, a course to which the parties consented. The Subordinate Judge framed no less than thirty issues in the title suit and a number of issues were also framed in the rent suits. Besides the two main issues, to which we have already referred, issues were framed as to the effect of the Permanent Settlement upon the claims of the parties to the proprietary rights in the Handwe properties as well as to the effect of failure on the part of the holders of Handwe to get the properties separated from Mahalat Kharagpur and also as to the pleas of res judicata raised by the parties, this plea being raised on behalf of the defendant with reference to the litigation of 1810-19 and on behalf of the plaintiffs with reference especially to a number of rent suits and a proceeding conducted in 1833 by a Special Commissioner, Mr. Ward, appointed under Regulation VII of 1822. There was also an issue as to whether the plaintiffs' suit was maintainable in view of the provisions of section 25A and sections 11 and 25 of Regulation III of 1872. Subsequently when some of the villages forming part of the Handwe estate were excluded from the suit in view of the survey and settlement proceedings two new issues were added as to the legal effect of their exclusion. The several issues raised in the rent suits need not be referred to in detail as we are concerned in this appeal only with the questions to which reference has already been made. In framing the issues the learned Subordinate Judge did not confine himself to the broad questions raised by the parties but made certain subsidiary matters also the subject of separate issues. His main findings are as follows:—

(1) that Handwe is not a Government ghatwali but a ghatwali subordinate to the Kharagpur estate;

(2) that the proprietor of the Kharagpur estate is also the proprietor of Handwe;

(3) that the decision of Mr. Ward in 1833 is res judicata between the parties and concludes the controversy between them as to the proprietorship of Handwe;

(4) that the decisions in certain rent suits though not res judicata operate by way of estopped against the plea that the defendant is not a tenant under the plaintiffs;

(5) that two settlement records, the first prepared by Mr. Wood and the second by Mr. McPherson, are res judicata under section 25A of Regulation III of 1872;

(6) that the final judgment pronounced in the litigation, of 1810-19 far from operating as re judicata between the parties in favour of the defendant, decided that the holder of Handwe was subordinate to the Raja of Kharagpur. The decision, however, in the opinion of the learned Subordinate Judge deprives the proprietor of Kharagplur of his right to appoint a ghatwal of his own choice upon the death of any particular incumbent of the office;

(7) that the suit is not barred by section 25A of Regulation III of 1872;

(8) that the consequence of an agreement entered into between the Government and Raja Lilanand Singh, the proprietor of the Kharagpur estate, in 1863 by which the Government relinquished its rights to take police service through the ghatwals was that the Handwe Raj could not thereafter be treated as a Government ghatwali although the agreement did not affect its other incidents; and

(9) that although the right of the plaintiffs to demand ghatwali service from the defendant lapsed under Regulation III of 1872 as the plaintiffs and their predecessors never demanded ghatwali services from the defendants before 1859, nevertheless the ghatwali estate still retained its original incident of inalienability and it could not be transferred without the consent of the proprietors of Kharagpur.

In conformity with these findings the Subordinate Judge held in the rent suits that the amount payable by the defendant was rent and not revenue and he accordingly decreed both the title and rent suits in full.

It is not necessary in this appeal to deal individually with all the findings of the learned Subordinate Judge some of which, as we have said, relate to matters of minor importance arising out of the evidence adduced in the case. The substantial fact that we have to investigate is the relationship between the two estates, Handwe and Kharagpur, and for this purpose a brief reference to their previous history will be necessary.

Mahalat Kharagpur is an extensive estate in the districts of Monghyr, Bhagalpur and the Santal Parganas, its name being familiar enough to students of law reports as it is closely associated with a number of important decisions relating to ghatwali tenures including the classical judgment of Lord Kingsdown in Leelanund v. The Government of Bengal. It is a permanently-settled estate with a land revenue of Rs. 72,535 odd and is borne on the revenue roll of the Bhagalpur Collectorate under tauzi no. 445. The estate so recorded includes all the taluks which constitute the Handwe Raj which now pays annually to the proprietor of the Kharagpur estate a fixed sum of Rs. 2,171-6-9 though at the time of the Permanent Settlement the sum payable was Rs. 2,818 according to one calculation and Rs. 2,701 according to another. Both Kharagpur and Handwe are names that occur even in the historical records of the time of Akbar, from which, however, little more than their existence then can be gathered. Whatever information we have been able to obtain about them in the Moghul period has been furnished by more recent compilations, such as, Dr. Buchanan's Manuscripts, “Eastern India”, Hunter's Statistical Accounts of Bengal and McPherson's Settlement Reports of the districts of Bhagalpur and the Santal Parganas; but the information is meagre and of little historical value, much of it being derived from family traditions for the authenticity of which the writers themselves were unable to vouch. A short treatise called “India Tracts” written by Captain Browne, an officer of the East India Company, from whose sanad the defendant's title is derived, though it does not purport to give a detailed account of either of the two estates; contains a short description of the Jungle Terai districts that were in his charge, in which the pargana of Handwe is included, and of the policy which he pursued and the methods which he adopted in the settlement of that area. Although early history affords no basis for any judicial conclusion as to the fights of the parties, yet a brief account of the available information will throw some light on ancient documents exhibited in the case and will serve as a background for a general discussion of the question of the relationship of the estates to each other.

According to Hunter, Kharagpur was originally ruled by a number of Kshetauri Chiefs and about the middle of the sixteenth century passed under Rajput domination. That one of the Rajput rulers, Sangram, was an historical figure is apparent from the fact that he has been referred to more than once in “Ain-i-Akbari”. His son Todar Mal embraced the Muhammadan faith taking the name of Roz Afzun and both he and his son Bih Roz appear to have won the favour of the Moghul Emperors of their time and to have had the distinction of being placed in command of troops' and entrusted with military expeditions. The three of his descendants with whom we are mainly concerned in this case, as their names find place in certain important documents, are Muzaffar Ali, Mnzaffar Ali's son Faiz Ali, sometimes also referred to as Fazl Ali, and his grandson Qadir Ali. Muzaffar Ali succeeded to the Raj in 1734 while yet a minor, and although no full and authentic account is available of what happened between this year and the year 1781 when the zamindari of Kharagpur was restored by the Governor-General Warren Hastings by means of a sanad to his grandson Qadir Ali, there can be no doubt that both Muzaffar Ali and Fazl Ali had chequered careers. Muzaffar Ali seems to have prospered while Mir Jafar was in power at Murshidabad, but apparently he incurred the displeasure of Mir Kasim the successor of Mir afar and was first forced to take refuge at Ramgarh and subsequently imprisoned for a time. He suffered misfortune again when Sitab Rai obtained the management of the revenues of Bihar. According to Dr. Buchanan the Raja and his family were once more imprisoned though he subsequently escaped into the forests of Jagannath Deo of Lachmipur one of the most powerful of the ghatwals of the Jungle Terai. It appears from Captain Browne's account of the later events that he then threw off all allegiance to the Government and that when the Company's troops were sent to subdue him in 1766 ghatwals of the Jungle Terai, whom Captain Browne referred to as the Raja's own chiefs, plundered his baggage during his retreat. He was reduced to submission and made a prisoner again in 1768. As far as we can gather from the accounts before us neither he nor his son Fazl Ali recovered their old position although according to Captain Browne when Muzaffar Ali was made a prisoner in 1768 “the truth of the previous situation began to appear”. It seems to have been then realised that the measure of his responsibility for the previous disorders was less than had been supposed and it appears that soon afterwards he was treated with greater consideration. It is mentioned by Captain Browne that a sanad given by Captain Brooke conferred on his son Fazl Ali the zamindari of the rebel Jagannath Deo in 1171, and this may be the sanad referred to in Roopnurayun Deo v. Rajah Qadir Ulee. The zamindari of Kharagpur, however, does not appear to have been restored to the family until 1781 when the Governor-General granted the sanad [Exhibit 87(a)] to Muzaffar Ali's grandson Qadir Ali. Muzaffar Ali is (referred to by Dr. Hunter as the deposed Raja and in the sanad by which the zamindari of Kharagpur was restored to his grandson he is described as the “dismissed zamindar”, no reference being made in it to Fazl Ali, an omission which indicates that Fazl Ali had not been in possession of the estate before its restoration to Qadir Ali. Indeed even in a petition to the Commissioner of Bhagalpur which Maharaja Rahmat Ali, the son of Qadir Ali, made in 1832 (vide exhibit 101) no mention is made of a recovery of the estate by Fazl Ali. The petition runs thus:—

“At the time of the……………………………imprisonment of Raja Muzaffar Ali, great great grandfather of your petitioner on account of the displeasure of the Hon'ble Company for several year there were trouble and loss of various sorts in his family………………On account of the dismissal of the said Raja many ghatwals and malguzars of the zamindari elaka of your petitioner revolted and became slack in paying rent………………………………………When after sometime in 1188 Fasli Mr. Cleveland was appointed Collector and came to the district of Bhagalpur, he made enquiries into the old records and, on perusal of the evidence and documents and on proof that, the Raj was the old milkiat and zamindari of the ancestors of your petitioner, he sent information to the Hon'ble Company and the Governor-General and in accordance with the order of the Supreme Council installed Raja Qadir Ali, father of your petitioner, as Raja as before and granted a patta for ever in-respect of the entire zamindari of Kharagpur mahals together with a sanad of the Council.”

We may here briefly refer to two documents by which the plaintiffs seek to prove that both Muzaffar Ali and his son Fazl Ali did not lose their hold upon their zamindari even during the most troubled periods of their careers. Exhibit 81 purports to be a certified copy of a copy of a parwana acknowledging Muzaffar Ali to be the Raja, Kanungo and Chaudhury of the Kharagpur mahals alleged to hare been granted about 1765 by one Mir Kazim said to have been the Governor of Bihar for sometime. Exhibit 82 purports to be a certified copy of a copy of a parwana issued (either about 1771 which is the year according to the printed paper book of 1774 as Mr. Manuk, Counsel for the respondents, suggests) by Raja Fazl Ali acknowledging Rani Sarbeswari as the successor of Raja Kanchan Singh to the ghatwali of the taluks of jamuni and Harnapur. It is contended on behalf of the appellant that no such documents ever existed. They appear to have been produced for the first time in this litigation and the conclusion we have arrived at after carefully examining them is that it would not be safe to rely on them. Exhibit 81 bears no signature whatsoever and there is nothing to show when the copy of which it purports to be a certified copy was prepared or in what circumstances such a copy came to be in the Collector's record room. The Subordinate Judge erroneously supposed that the document is stamped with the seal of Qadir Ali. The seal referred to by him might be anybody's seal and why the seal of Qadir Ali should be on a copy in the Collectorate has not been made clear. We need not consider the legal question whether the copies can be regarded as ancient documents so as to be admissible in evidence without formal proof because in our opinion the documents should be discarded on the merits. Another circumstance that throws doubt on the genuineness of the exhibit is that if the facts have been correctly stated by Captain Browne, Muzaffar Ali who was being pursued by the Company's troops in 1766 and was a prisoner in 1768 was not likely to have been vested with the powers of a Raja in 1765. Exhibit 82 must also be discarded because most of the considerations which have weighed with us in discarding exhibit 81 apply to it with equal force and also because on Mr. Manuk's own showing the Hijri date which it bears is not consistent with the Fasli date nor does it correspond to the 15th year of the reign of Shah Alam II in which it purports to have been granted. We shall refer at greater length to the manner in which the zamindari was restored to Qadir Ali in 1781, but it is sufficient to state here that this zamindari continued in the possession of Qadir Ali and his descendants until the whole of the property, except Haveli Kharagpur, was sold for arreara of revenue on the 29th July, 1840, and was purchased by Raja Bidyanand Singh, an ancestor of the respondents and one Bala Nath Sahu whose interest was subsequently transferred to the respondents' family.

The history of Handwe which is a smaller and less important property is even more obscure. The Jungle Terai area within which this estate was situated is as appears from a map prepared by Mr. Rennel (reproduced both in Captain Browne's “India Tracts” and McPherson's Settlement Report of the Santal Parganas), a considerable tract of waste and hilly country, as its name signifies, to the south of Bhagalpur and west of the Raj Mahal nills. It appears from “Ain-i-Akbari” (Volume II, page 154) that Handwe was included in Akbar's revenue roll for the Sarkar of Monghyr and, according to a version of the history of the Rajas of Kharagpur given by Hunter which he found in the records kept by that family, pargana Handwe was one of the parganas given as an altamgha jagir by the Moghul Emperor Jahangir to Bih Rozz son of Todar Mal (or Roz Afzum which was the name he took after his conversion to the Muslim faith) who subsequently became the Raja of Kharagpur. According to Dr. Buchanan, who apparently met and conversed with Jhabban Singh of Handwe, the first ghatwal of Handwe of whom he heard was Bejoy Singh who was said to have flourished between 1594 and 1634. According to McPherson's Settlement Report of the Santal Parganas Handwe had before then been a Bhuiyya ghatwali or no man's land. The last settlement that was made during the time of Shah Alam II after the acquisition of the Dewani by the East India Company was made by one Raza Khan and according to the Fifth Report, 22 parganas are described as then appertaining to Knaragpur of which however only the 6 major ones are mentioned. It is suggested on behalf of the respondents that pargana Handwe was one of these 22 parganas and in support of this suggestion reliance is placed on the fact that in all the subsequent documents pargana Handwe has been described as appertaining to Kharagpur. However that may be, from the historical information available to us, meagre though it is, it would appear that Handwe was a Kshetauri chieftaincy under the Moghul Emperors and it subsequently became a dependency of Kharagpur. As Kshetauris were the rulers of the tract before the Rajputs entered it the Handwe estate may perhaps be more ancient than the Kharagpur estate founded by the Rajputs, but it appears to be fairly probable that in the course of time the Raja of Kharagpur became the over-lord of a number of Kshetauri Chiefs including the Chief of Handwe. This view receives some support from the following statement made by Captain Browne:

“All those Jungle Terai ghatwalis were formerly subject to the several Rajas to whose territories their ghatwalis belonged; they paid a slight tribute in token of feudal obedience and were bound to oppose all invasions, to attend their Rajas, when summoned with all their followers in arms and to be responsible for every violence and irregularity committed in their respective boundaries”.

Nevertheless, as Captain Browne himself notes, 5 when the several Rajas on whom the ghatwalis depended began to decline, the ghatwals began to fight among themselves and in the end became almost independent chieftains. Captain Browne mentions an occasion when Muzaffar Ali rebelling against the Government summoned Lachman Deo of Jagarnathpur as his vassal to assist him with his troops and received the answer that Lachman Deo “was a servant to the Suba and if Muzaffar Ali forgot his duty it was no lesson for him to follow.” We have already referred to the occasion in 1766 when during Muzaffar Ali's flight to escape the Company's troops insubordinate chiefs did not scruple to plunder his baggage. Captain Browne does not deal in his book either with the Handwe estate or with any of its chieftains. The only place in the treatise where Handwe is mentioned is in a list of the ghatwalis of pargana Kharagpur. It includes only three ghatwalis, namely, Lachmipur, Handwe and Chandan Katoria besides eight others which according to him were withheld by the “renter” of Kharagpur by which term he probably meant the farmer placed in charge of the Kharagpur estate after the dismissal of Muzaffar Ali. As to the title of Raja which used to be prefixed to the name of some of the Handwe chiefs, it is pertinent to refer to the following observations made by Captain Browne when dealing generally with the position of the Bhuyya chiefs of the Jungle Terai area.

“The highest title given to them was that of Tikait, the younger branches were denominated Babus and though their superior lords sometime flattered some of them with the title ‘Raja’, their own tribe paid but little regard to it and thought that not being ancient it conveyed no honour to the possessor.”

We now pass on to the most critical period in the history of the two estates, the period between 1776 and 1786 in which the particular grants upon which, the title to the two estates respectively are based were made by the East India Company. It appears that in consequence, of the depredations of the hillmen of the Rajmahal hills in 1771 and 1772, Warren Hastings sent a battalion of infantry to reduce the country to subjection and order under the command of Captain Brooke late in 1772. Captain Brooke subdued some of the hillmen in 1773 and then started operations' against Jagarnath Deo and the other zamindars of the Jungle Terai of Kharagpur who had rebelled against the Government. Jagarnath Deo held an important ghatwali estate appertaining to Kharagpur known as Lachmipur or Ohandwe Passae. In 1774 the campaign against the hillmen continued. Regulations were made for the protection of the lowlands and “a khas settlement” by which apparently was meant direct management and collection of rents, was made of the Jungle Terai in Kharagpur. In July 1774 Captain Brooke made over charge to Captain Browne of the Collectorship of Bhagalpur and Colgong to which the Jungle Terai of Birbhum and Gidhaur were afterwards added. Captain Browne subdued Jagarnath Deo of Lachmipur and perceiving the instability of the khas settlement of the Jungle Terai of Kharagpur recommended to the Directors of the East India Company that Jagarnath Deo and the members of his family should be pardoned and readmitted to the management of their respective districts, but for some time he received no reply to his proposal. In 1775 there was another insurrection which was inspired mainly by Jagarnath Deo and the other zamindars whom Captain Browne had expelled. Hostilities continued throughout the year but they were narrowed to the limits of the Jungle Terai of Kharagpur and the confederacy was broken by the beginning of 1776. The rebels now began to submit and ultimately on a strong representation made by Captain Browne the Directors agreed to the investiture of Jagarnath Deo's son with the zamindari of Lachmipur. It was on the 11th September of this year that an istimrari mukarrari patta was granted by Captain James Browne on a consolidated jama of Rs. 2,701 to Raja Subbao Singh and certain other persons in respect of a, combination of taluks broadly described as pargana Handwe. A certified copy of this document has been produced on behalf of the defendant and has been marked exhibit I. It is expressed as having been made to “Raja Subhao Singh, Babu Udit Singh (elsewhere named Udwant Singh), Babu Copal Singh, Babu Lal Singh and others, ghatwals of pargana Handwe”. The Hindi transcript of the sanad, the original of which is in the Urdu language, contains two more names, Bishun Singh and Fateh Singh. These six men were direct descendants of Raja Bijay Singh, the eldest member of the senior branch of the family being Subhao Singh. A schedule which was contemporaneous with the grant and which has been referred to as a daul (exhibit 1) shows how the component parcels of lands either taluks, groups of taluks or in some cases single villages were allocated to the several ghatwals, and the amount of rent and other charges payable in respect of each. There were 17 such parcels separately assessed and these were distributed among 13 ghatwals constituting the same number of individual interests. The names of the ghatwals, besides the names given in the sanad, are Kesri Singh, Nehal Naik, Baijnath Singh, Har Lal Datt, Udesi Panda, Nain Singh Datt, sharing with Har Lal Datt and Gobind Charan Datt, and Nain Singh Datt alone. It cannot be ascertained from historical sources or from the exhibited documents why men who were not members of Subhao's family or even of the same caste were made participators in the grant. Jhabban Singh seems to have attributed the inclusion of other persons with Subhao Singh to the previous status which he assumed they had held as ghatwals subordinate to Subhao Singh whom he represented as having been not a ghatwal but a zamindar. This was the view of the relationship of the several interests which he was placing before the court in the statement of his defence in the case instituted in 1810 by Raja Qadir Ali for recovery of possession of Subhao Singh's share of the properties, when he asserted that the other persons to whom the grant had been made were “ghatwals of his territory” (elaka) [Exhibit V(2)]; and again in 1819 when in his application to the appellate court for separation of Handwe from the Kharagpur estate (exhibit 141) he construed the sanad as having by ancient custom constituted the ghatwali mahals the shikmi interests or dependencies of the ancestral zamindari of his uncle Subhao Singh. A like assertion was made by the grandson of Baijnath Singh, the original grantee of Relguma Kalan, in the resumption proceedings (exhibit 17) in 1841 under Regulation IX of 1833 in respect of that taluk. He described himself as a shikmi ghatwal of Raja Subhao Singh to whom rent had not been paid because it had never been demanded. There is no sufficient material before us to enable us to pronounce any definite opinion as to the status in relation to Raja Subhao Singh of the other ghatwals named in the sanad and in the daul, but it seems not unlikely that their position was that of subordinate ghatwals of the kind described by Garth, C.J, in Leelanund Singh Bahadur v. Thakoor Munrunjun Singh in the following passage:—

“Large grants of land were made in those days by the Government, often to persons of high rank, at a low rent or at no rent at all, upon condition that they should provide and maintain a sufficient military force to protect the inhabitants of the plains from these lawless incursions; and the grantees on their part sub-divided and regranted the lands to other tenants (much in the same way as military tenures were created in England in the feudal age), each of whom, besides paying generally a small rent, held their lands in consideration of these military services, and provided (each according to the extent of his holding) a specified number of armed men to fulfil the requirements of the Government.”

The first and the most important question we have to investigate with regard to the document is what was the nature of the grant judged by the language in which it is expressed. There can be no doubt that the ghatwali services which the grantees were required by the terms of the document to perform were services to be rendered directly to the ruling power as represented by the East India Company. The ghatwals were required to go round and protect the villages, watch the boundaries and “limits” escorted by the archers and barkandazes attached to the jagirs and keep themselves engaged in doing the work of “Sarkar Huzur”. They were liable to be punished by the Huzur if any complaint lodged against - them was substantiated, and they were directed when called for by the Huzur to present themselves before the Huzur accompanied by sardars, archers and barkandazes, 307 in number, of whom 7 were to be sardars and the rest archers and barkandazes. It has been argued on behalf of the respondents that in making this grant Captain Browne was merely acting on behalf of the Raja of Kharagpur whose zamindari was in the charge of the East India Company and, therefore, the word “Huzur” was intended to refer to the zamindar in anticipation of his reinstatement. It is also pointed out that the word “Huzur” occurs in many of the sanads granted by the zamindars and that services similar to those mentioned in exhibit I were also required from the recipients of such sanads. The language used in some of the official records as well as in certain judicial decisions which refer to the action of Captain Browne at first sight seems to support the respondents' contention. For example, in exhibit 98, which is a report submitted by the Collector of Bhagalpur to the Sudder Diwani Adalat in 1816, it is stated that “during the mismanagement of the Raj………………………when it was in collection of Government, Captain Browne of Jungle Terai zilla made life mukarrari settlements with the ghatwals”. Again in a report [Exhibit 7(a)] about the ghatwali tenures in the district of Bhagalpur submitted to the Commissioner of Revenue. Bhagalpur Division, by Mr. Ward, described as a special Commissioner, it is stated with reference to pargana Chandan, which is also a ghatwali estate in Kharagpur,—“In 1777 when Captain James Browne had the charge of the Terai and the estates of Kharagpur were under attachment in consequence of the minority of the Raja I find a sanad was granted by this officer to the ancestor of the present incumbent”. Similarly in 1863, in exhibit 174, a, letter sent by the Collector of Bhagalpur to the Commissioner of that Division, it was stated almost in the words used by the Privy Council in the case of Raja Leelanund Singh v. The Government of Bengal that the zamindari of Kharagpur had been placed in charge of Mr. Augustus Cleveland. The true situation, however, appears to have been that in granting the sanad exhibit I Captain Browne both purported to act and did act on behalf of the East India Company and not on behalf of the zamindar though he may have had in view the possibility of a restoration of the Kharagpur estate to the heir of Muzaffar Ali in accordance with the practice followed by the Moghul Government when a contumacious or disloyal zamindar had been dismissed or expelled. This practice is referred to in Harrigton's Analysis, Volume III, page 343 thus:—

“Whenever a zamindar was ejected in consequence of rebellion etc., the ruling power in case of extraordinary criminality with a view to the well being of the affairs of zamindari (which consists in payment of the revenues, observances of the articles of stipulation and obedience to the ordinance of Government) and at the same time showing regard to established usage, gave the zamindari to his heir. But if the heir had been an accomplice in the rebellion, or refused to discharge the dues of the estate, the zamindari was then granted to some other person. In cases of a less criminal nature the offence was pardoned, and the offender reinstated in his zamindari on paying a fine, and executing an engagement for his future good conduct.”.

Muzaffar Ali had certainly incurred the displeasure of Nawab Mir Kasim and had also subsequently openly thrown off allegiance to the Government with the result that the East India Company had to send troops against him in 1766. It may be that after his death in 1772 his son Fazl Ali tried to re-establish himself in the good graces of the ruling power and that Captain Brooke placed him in charge of the estate of Jagarnath Deo in 1773, but the Kharagpur estate does not appear ever to have been restored to him. We have shown that as late as in 1791. Muzaffar Ali was described by Warren Hastings in the sanad granted to his grandson Qadir Ali as a dismissed zamindar without any reference at all being made to Fazl Ali. That Muzaffar Ali had been dismissed not for ordinary contumacy but for open rebellion there can be no doubt. Captain Browne states in his book that in 1761 or 1762 Mir Kasim seized Muzaffar Ali and sent an amil Golab Rai “to collect the district of Kharagpur on the part of Government”. It seems therefore clear enough that his estates were under confiscation. Captain Browne's policy was to bring the ghatwali estates directly under the Government and he seems to have been vested with ample authority to enable him to carry this policy into effect. It could hardly have been otherwise. The exigencies of the situation demanded the exercise of very wide powers by an officer entrusted as military Collector with the task of quelling an insurrection and restoring order in an area removed from the jurisdiction of the Council and placed under the control of the Governor-General. In his account of Thakur Gunsham Singh, a ghatwal of Kharagdiha, he states that he restored the taluka “by virtue of the authority given to me by Government to use such means as appear to me most advisable for the benefit of the country”. He also states while dealing with the ghatwals of Kharagdiha that as one of the means by which he kept those chiefs in subjection he fixed their rents, took “the collection of them” into his own hands and required the chiefs to swear fidelity and feudal services to the Government whenever called upon to do so. There can be no doubt, therefore, that he intended the Handwe ghatwals to render services to the Government and not to the zamindar. Indeed there being no zamindar at Kharagpur at that time “Huzur” could not by any stretch of reasoning be construed to refer to him. There is nothing in the patta, exhibit I, to suggest that it was being granted on behalf of the zamindar. On the other hand Captain Browne is described as the “Sardar” of the Company for the Jungle Terai of Gidhaur, Kharagpur, Bhagalpur, Colgong and Birbhum. It is true that in this patta Handwe is described as appertaining to Kharagpur, but as Lord Sumner observed in Satya Narain Singh v. Satya Niranjan Chakravarti, that is no more than a topographical statement.

A brief reference may be made here to exhibit 83 which is a document tendered in evidence on behalf of the plaintiffs to nullify exhibit I. This document purports to be an agreement between Captain Browne and Raja Subhao Singh and others made on the 12th September, 1776, that is to say, the day after the patta, exhibit I, had been granted. By this agreement Subhao Singh and other persons are said to have bound themselves to pay zamindari perquisites etc., “to the above officer (perhaps meaning thereby the Collector)” and in case the zamindar of Kharagpur should enter into possession of his zamindari under the orders of the Huzur to pay the said perquisites to the zamindar. The learned Subordinate Judge has believed this document to be genuine but after a careful examination of it we are not disposed to take the same view. It seems inconceivable that a, separate agreement should have been made between Captain Browne and Raja Subhao Singh and others when the terms of that agreement could have been incorporated in the patta, exhibit I. There is no reference to zamindari perquisites at all in the patta, exhibit I, the expression used there being zamindari expenses which mean collection, charges and are entirely different from the zamindari perquisites or zamindari rasum which the documents produced by the defendants themselves show the zamindars of Kharagpur were not allowed to charge from the ghatwals of Handwe when the zamindari was restored to Qadir Ali. Mr. Manuk on behalf of the respondents concedes that the term “rasum” means the customary charge of two annas in the rupee upon the revenue payable by the ghatwals. But the sanad, exhibit 87(a), and exhibit 88, the memorandum of daul settlement made with Qadir Ali in 1780, clearly show that no such perquisites were chargeable upon the revenue of Handwe and that all that Qadir Ali was allowed to do was to charge a “subsistence allowance” fixed for the Kanungo's office in relation to pargana Handwe on the revenue of Handwe payable to the Government. In none of the numerous official records or decisions in the cases between the parties is any such agreement referred to. The document if it was in existence might well have been filed by Raja Qadir Ali in the litigation which commenced between him and Jhabban Singh, the ghatwal of Handwe, in the year 1810, but admittedly it was not then filed. It was called for during the trial of the present suit from the Collectorate of Bhagalpur as late as on the 29th August, 1928, and it was tendered in evidence on the 28th June, 1930. The document that was obtained from the Collectorate was not the original but purported to be a copy. Nothing is said as to what has become of the original or when this copy was made. For our own satisfaction we called for the copy from the Collectorate and upon an examination of it we fell convinced that it should not be relied upon. We must remember that there has been litigation between the ghatwals of Handwe and the zamindar of Kharagpur for considerably more than a century and the suggestion that this copy may have, been surreptitiously introduced into the Collectorate at sometime or other to furnish an answer to exhibit I cannot be discarded as entirely wild. Unless we know how and when the copy found its way into the Collectorate, it would be most unsafe to assume that a genuine original document existed. Even during the litigation of 1810-19 the courts were not inclined to rely on some of the documents produced on behalf of the zamindar of Kharagpur and in a petition exhibit 141 made in 1819 Jhabhan Singh definitely charged him with having fabricated-documents.

The document which come next in chronological order are exhibits S, S1 and S2. These are three chalans for revenue deposited by Raja Subhao Singh in the Government Treasury during the years 1777-80. The appellant relies upon these chalans because they shjow that soon after the grant of the patta by Captain Browne the ghatwals commenced to pay the Government revenue directly into the Government Treasury and because Raja Subhao Singh is described as the proprietor in exhibit S, and in S1 and S2 he is referred to as a zamindar. These chalans, however, do not carry the matter any further than exhibit I for we find that after the restoration of the zamindari to Qadir Ali in 1780 a general order was made by the Collector directing all the talulcdars whose taluks were included in the sanad to pay their revenue to the zamindar and not into the Government treasury. As to the word “zamindar” it is urged by Mr. Manuk that no undue stress should be laid upon it as it is a term of respect and might be used even with reference to persons who were not actual proprietors of the soil. To this matter we shall advert later, but it is enough to say here that the true status of the ghatwals of Handwe depends no upon the designations by which they were described in the subsequent documents but upon the construction of the patta, exhibit I, by which the taluks were settled with them.

As we have already stated the zamindari of Kharagpur was restored to Qadir Ali in the year 1780. The restoration was effected by a sanad granted by Mr. Cleveland the Collector of Bhagalpur on the 14th September, 1780, confirmed by the Governor-General who granted another sanad to Qadir Ali on the 1st April, 1781. Two copies of the sanad granted by the Governor-General are on the record, these being exhibits 87(a) and Z(65). By the sanad of Mr. Cleve land, exhibit 86, the rajgi of the mahals referred to in the sanad together with the duties of chaudhurai, kanungoi and milkiat were “confirmed and upheld in the name of the said Raja with effect from the commencement of 1188 Fasli”. Then follows a list of parganas which are included in the sanad and pargana Handwe is one of them. As the words rajgi, chaudhurai and kanungoi occur in the sanad it may be stated here that during the investigations which were carried on by the officials of the East India Company before the Permanent Settlement, specific questions were put to two Indian experts, Gulam Hossain and Roy Royan, as to the meaning of the first two expressions and their answers given in 1788 were to the following effect:—

(1) A raja originally meant a king but subse quentiy zamindars obtained the title of ‘raja’ solely in augmentation of their dignity (see Harrington's Analysis, Volume III, p. 349).

(2) A chaudhuri was an officer to whom the collection of revenue from a number of talukdars was given in trust (Ibid p. 347) and the word signifies chief or director, and in later times those zamindars who, particularly distinguished themselves by their attention to the ruler and by the good management of their districts obtained by common consent the title of Chaudhuri. A chaudhuri has no rights or privileges, beyond the enjoyment of nankar and malikana, the former depending on his retaining the management of his district, and the latter on his losing it. (Ibid p. 327).

A kanungo is described in Wilson's Glossary as a revenue officer who, under the former Governments, recorded all circumstances within his sphere which concerned landed property and the realisation of the revenue, keeping registers of the value, tenure, extent, and transfers of lands, assisting in the measurements and survey of the lands, reporting deaths and successions of revenue payers, and explaining, when required, local practices and public regulations. They were paid by rent free lands and various allowances and perquisites.

The sanad of the Governor-General is in somewhat different terms from those in which Mr. Cleveland's sanad is expressed and simply states “that the zamindari service of the said pargana is granted to Qadir Ali the best among his equals the grandson of Raja Muzaffar Ali deceased, the dismissed zamindar of the said pargana with effect from 1188 Fasli”. A list of the parganas of mahalat Kharagpur is given in this sanad also under the heading “As per sheet sent by Mr. Cleveland of Bhagalpur district. The revenue fixed in exhibit 87(a) is Rs. 30,213 an account being appended to it which is also incorporated in what is called the memorandum of Daul Settlement, exhibit 88, showing the parganas included in the settlement, the revenue assessed upon each of the parganas and certain other matters. A critical examination of these accounts shows that originally the Kharagpur estate comprised certain parganas some of which were held as sahanak, some as inam madadmash, some had been acquired and some were those in which the zamindar had the right of realising his usual perquisites of two annas in the rupee. The sanad further shows that there were also certain mukarrari mahals including Handwe for which the perquisite of two annas in the rupee was not charged. These matters are not clear on the face of the sanad but were ascertained by mathematical calculations which were made in the course of the argument, the result being accepted by both the parties. It may be mentioned here that sahanak means a grant of land for subsistence without service being attached to it and inam is a gift or reward.

As we have seen the. sanad, exhibit 86, (granted by Mr. Cleveland) recites that the rajgi, chaudhurai, kanungoi and milkiat had for a long time been assigned to Raja Qadir Ali and that the said offices were confirmed and upheld as before. Upon this the respondents base their argument that the office of the zamindar had never been in abeyance, whereas the appellant urges that the recital not being true to history shows that the sanad had been fabricated. We think, however, that the recital is merely a conventional formula adopted to emphasise the fact that Qadir Ali was being re-invested with all the rights which his grandfather formerly possessed. We also think that the sanad is so similar to the sanad granted by the Governor-General a few months later that there could be no possible object in fabricating it.

The question as to the effect and significance of the inclusion of Handwe in the settlement made with Raja Qadir Ali was the subject of prolonged discussion before us and we propose to deal with it later at some length. As to the reason for the inclusion it is sufficient to state that it may have been due to a desire on the part of the officers of the East India Company to effect as complete a reinstatement of Qadir Ali as was compatible with the engagements which Captain Browne had already entered into with the ghatwals of Handwe. We have already expressed our opinion that it is not unlikely that the Raja of Kharagpur wielded some kind of authority over the ghatwals of Handwe before the Raja's powers began to decline and it was perhaps in recognition of this fact that not only Handwe but even Lachmipur was included in the grant made to Raja Qadir Ali.

In support of their own interpretation of the grant made to Qadir Ali the respondents rely upon two documents which purport to be kabuliyats granted by Raja Subhao Singh in favour of Raja Qadir Ali, one on the 9th December, 1780, (exhibit 130) and the other on the 17th May, 1785, (exhibit 133). As the genuineness of both these documents is vehemently challenged it will be necessary to deal with them at some length. By the first kabuliyat exhibit 130 Subhao Singh is alleged to have undertaken not only to pay the annual mukarrari jama but also the zamindari duanni rasum (the customary charge of two annas in the rupee) and to have made himself and his fellow ghatwals responsible directly to the zamindar for any crime such as highway robbery, theft etc., that might be committed within their territory. In an account which is appended to this document the fixed rent is shown as Rs. 3,155-10-0 and not Rs. 2,818 as in the patta of Captain Browne.

Now, it may be taken to have been fully established by the respondents, as will appear later, that many ghatwals to whom Captain Browne had granted pattas subsequently executed kabuliyats in favour of Raja Qadir Ali similar in character to the document exhibit 130 and it is conceivable that a kabuliyat might have been executed by the Handwe ghatwals also. The question, however, remains whether the document under consideration must be accepted as proof of the fact that such a kabuliyat was executed. In our view the criticisms directed against this document are so formidable that it would be most unsafe to act upon it. It is to be noted that during the prolonged litigation between Qadir Ali and Jhalbban Singh, the nephew of Subhao Singh, which continued from 1810 to 1819, no kabuliyat, such as, the one of which exhibit 130 purports to be a copy, was filed on behalf of Qadfr Ali either in the trial court or in the appellate court. The importance of this kabuliyat so far as that litigation was concerned cannot be underrated as Jhabban Singh's case was that he held the zamindari milkiat of Handwe, a claim which could have been disproved by the mere production of this kabuliyat. The omission to file it in that litigation becomes still more significant when we find that Qadir Ali filed a kabuliyat and a muchalka dated 1195, apparently the same as exhibits 2 and 135 of this suit, which, however, were rejected as unreliable. We are not impressed by the suggestion of Mr. Manuk that Qadir Ali might have deliberately suppressed the document because it contained the statement that the rent of Handwe was fixed. It is to be noticed that the rent stated in this kabuliyat (exhibit 130) is not Rs. 2,701 (Company's coin) or Rs. 2,818 (in Company's coin and sarwat) as stated in exhibit I (Captain Browne's patta) and in exhibit 87(a), (The Governor-General's sanad to Qadir Ali), but Rs. 3,155. The account appended to the document shows that a sum of Rs. 337-10-0 was calculated as the zamindari duanni upon Rs. 2,701. Why this sum should have been added to Rs. 2,818 and not to Rs. 2,701 has not been explained. It is also remarkable that in a rent suit brought by Rahmat Ali of Kharagpur against Madho Singh, the son of Jhabban Singh, in 1838 rent was claimed at the rate of Rs. 2,818 a year. It was stated in the original plaint of that suit that Rahsnat Ali would bring a separate suit for recovery of the zamindari dues; but it was not explained why these dues were not claimed if they were recoverable by that suit. However that may be, it is conceded that the present kabuliyat was not filed in support of the original claim and the claim was subsequently amended. Exhibit 130 is open to the further criticism that the Hijri date which it bears makes it impossible for the document to have been executed by Subhao Singh. The document is dated the 9th Zil Hijja of the 22nd year of “the august reign” corresponding to the 24th Aghan Bangla 1139 A.H The twenty second year of the reign may be 1781, but 1139 Hijri corresponds to 1725 when probably neither Qadir Ali nor Subhao Singh was in existence. The document purports to be a certified copy but it is not known when or in what circumstances the copy was obtained. It purports to bear the seal of a qazi, but the letters embossed on the paper are so indistinct that it is difficult to say whether it was a genuine seal or not. The learned Counsel for the respondents was not able to state definitely why a certified copy should have been issued by the qazi. An explanation that he suggested was that in those days any person taking an original document before a qazi, provided it could be classed as a “Law document”, could ask him to issue a copy of that document with his seal thereon. We are aware of no such practice and we do not find anything in the qazi Regulation (XXXIX of 1739) to suggest its existence. Moreover on Mr. Manuk's argument, and as he himself admits, the mere fact that a copy could have been issued in the circumstances by the qazi could be no guarantee of the genuineness of the document as the document came from the custody of a private individual and was produced by him before the qazi merely to enable him to issue a certified copy.

The second kabuliyat, exhibit 133, is connected with two other questioned documents, exhibits 2 and 135, and these three documents may be dealt with together. Exhibit 2 purports to be a copy of a ghatwali sanad said to have been granted by Raja Qadir Ali sometime in 1785 to the successor of Udwant Singh one of the ghatwals of exhibit I in respect of the taluk Sarmi which had been allotted to him by exhibit I, while exhibit 133 purports to be a copy of a, kabuliyat executed by Raja Subhao Singh, who had acquired the share of Udwant, in favour of Qadir Ali in respect of the same taluk on the 17th May, 1785. Exhibit 135 is said to be a copy of a muchalka or undertaking which is alleged to have been executed by Subhao Singh about the same time as exhibit 2. Certain portions of exhibit 2 are torn and there are holes in the paper at the places where the name of the grantee and the date of the grant would have been written, but on comparing it with exhibit 133 there can be no doubt that the two documents are counterparts of each other. The case which is sought to be made out on behalf of the respondents on the basis of these documents is that when Raja Subhao Singh succeeded Udwant Singh be acknowledged subordination to Raja Qadir Ali in all respects, undertaking to see that the peace would be preserved and no crime would be committed within the area to which the patta and kabuliyat related and to attend before “the huzur with the party of barkandazes and archers whenever summoned by the huzur”. There is also a clause that in the event of any crime being committed within his ghatwali jurisdiction he would be liable to be removed from the office of ghatwal.

It is a fact that the taluk of Sarmi did come into the hands of Subhao Singh after the death of Udwant. This is clear from exhibit 162 which is the judgment in a suit between the widow of Udwant Singh and Purandar Singh, nephew of Subhao Singh. It appears from this judgment that a dispute arose between the parties after the deaths of Udwant and Subhao Singh about the possession of Sarmi and both parties offered to abide by the evidence of one Nayansuk Datt who made a statement to the effect that Udwant Singh had made over Sarmi to Subhao Singh during his life time. Subhao Singh apparently died before 1799 and it is not unlikely that he was alive on the elate on which exhibits 2 and 133 are said to have come into existence. Exhibits 111 and 137 which are two lists of ghatwalis within the Kharagpur estate submitted by Qadir Ali to the Collector of Bhagalpur, and which appear to have been compiled in 1781 and 1787 respectively, also indicate that Subhao Singh acquired Sarmi from Udwant Singh and that he was in turn succeeded by his nephew Purandar. But the mere fact that the documents are in accordance with some known events affords no guarantee of their genuineness. From certain endorsements on exhibit 2 it appears that it was a copy obtained from the civil court sometime in 1850, but it is difficult to fix with any precision the date of exhibit 133. Exhibit 133 bears the endorsement “Sd. W S. Smith. S. Je.” Then follow the words “True copy” with initials below them which are illegible. The suggestion made on behalf of the respondents is that this copy was obtained from the civil courts soon after the litigation of 1819. That may be so, but the important point to be noted about these documents is that documents corresponding, to both exhibits 133 and 135 were produced for the first time at the appellate stage of the litigation of 1810-1819 and were considered unreliable and rejected. In that litigation the appellate court dealing with these documents said—

“Besides the pattas, the kabuliyat, the surety bond referred to above and the kabuliyat and the surety bond of 1195 Fasli which were filed in this court before the late first Judge are absolutely unreliable, inasmuch as after the execution of the said documents the appellant aforesaid brought several suits against Raja Purandar Singh brother of the respondent and made no mention therein of the patta, the kabuliyat and the surety bond referred to above………… In order to prove the said kabuliyat and the surety bond this court called upon the appellant to adduce oval evidence. The appellant produced several witnesses but they were not reliable. Since (torn) the documents were not relied upon, the testimony of the aforesaid witnesses who gave evidence in proof of these documents cannot be treated as sufficient evidence in favour of the appellant.”

These remarks apply not only to exhibit 133, but also to exhibit 1.35 which purports to be a muchalka executed by Purandar Singh in favour of Qadir Ali by which he undertook to discharge all the duties of a ghatwal faithfully. In view of the fact that these documents were considered to be unreliable by a court which, as the appellant puts it, had the facts of the case “nearer to its ken” and which had before it many documents which are not before us, it appears to us that it would be extremely unsafe to rely upon exhibit 133 or 135 or exhibit 2 which must stand or fall with exhibit 133. Other considerations not to be overlooked are that the originals' of the documents are not before us, that the, copies were produced from the in record room of the respondents and that we are not aware of the circumstances in which these copies, if; genuine, were obtained.

In 1789 the East India Company adopted an important measure which is known as the Decennial Settlement. Before this settlement was concluded an extensive enquiry was held as to, among other matters, the persons with whom the settlement should be made and the amount of assessment to be fixed on the land. A keen controversy then arose as to whether the zamindars had been treated as proprietors of the soil or not under the Moghul rule. Mr. Shore who subsequently became Lord Teignmouth quoted in his Minute of 1788 the common expression of the people, which according to him from its universality was proverbial, “that the land belongs to the zamindar and the rent to the King”. This view was supported by two Indian experts Gholam Hussain, the author of “Saiur-ool-Mutakhireen”, and Roy Royan in their answers to the questions put to them (see, Harrington's Analysis, Volume III, page 328). The answer of the former to the twenty ninth question which asked why the King purchased lands since he was the lord of the country was—“The Emperor is proprietor of the revenue issuing out of the territory under his authority; but he is not the proprietor of the soil”. On the other hand Mr. Grant maintained that it was the fundamental principle in all the native estates of Asia “that the Sovereign is sole universal proprietary lord of the land; and that the ryots, who are husbandmen or peasantry, hold directly of the Prince, by immemorial usage, as perpetual tenants in capite; subject to the annual paymerit of a certain fixed portion of the gross produce of the soil, in money or kind……” (Ibid, page 360). Colonel Wilks thought that the fact which settled the controversy was that the share of the produce which went to the proprietor was an infinitesimal one as compared with the share which went to the King and he expressed himself thus:—

“It is absurd to distinguish as proprietor the person entitled to one-tenth” (Colonel Wilks subsequently attempted to show that the real share of the zamindar was one-twentieth) ‘while the remaining nine-tenths are called a duty, a tax, a quit rent’ (Ibid, page 377).”

Confronted with these divergent views the Directors of the East India Company pronounced no decision on the historical question but dealt with the matter on grounds of expediency. We read in the Fifth Report, Volume I, page 30, that, whatever might be the difference of opinion among those who were officially consulted on the critical question of proprietary right in the soil, a general concurrence prevailed in favour of the settlement being made with the zamindars. The report then goes to state (Ibid, page 32):

“In the progress and conclusion of this improvement transaction, the Government appeared willing to recognise the proprietary right of the zamindars in the land; not so much from any proof of the existence of such right, discernible in his relative situation under the Moghul Government, in its best form, as from the desire of improving their condition under the British Government, as far as it might be done consistently with the permanency of the revenue and with the rights of the cultivators of the soil.”

Whatever may have been the position of the zamindar in theory under the Moghul Government, there is no doubt that great dignity attached to his office by reason of his being in a sense a Government official having charge of the maintenance of peace and order in the area under his control as well as of the zamindari, and the practice of making successive settlements with the same person or his heirs fostered the growth of the conception of ownership. The East India Company for political reasons confirmed him in the position which he had already substantially attained by a formal recognition of his proprietary rights in the soil. So in the Regulations passed on the 18th September and 25th November, 1789, and the 10th February, 1790, “it was notified to the proprietors of the land on behalf of whom the settlement might be concluded that the jama assessed upon the lands under these Regulations would be continued after the expiration of the tenures and remain unalterable for ever, provided such continuance should meet with the approbation of the Hon'ble Court of Directors for the affairs of the East India Company and not otherwise”. In 1780-90 in conformity with this policy the settlement of the zomindari of Kharagpur was concluded with Raja Qadir Ali for a period of ten years. The parties have not placed on the record any document showing the terms on which the Decennial Settlement was made, but the fact that Handwe was included in the settlement with Raja Qadir Ali appears from the report [Exhibit 7(a)] submitted by Mr. Ward in 1833 regarding ghatwali tenures under Kharagpur and a report (Exhibit 106) sent by the Collector's record-keeper in 1841 supplying information called for by a Deputy Collector for the purpose of investigating the Government's claim to resume Handwe under Regulation IX of 1833. It is also admitted in paragraph 17 of the defendant's written statement. There is reference to this settlement in Raja Leelanund Singh Bahadur v. The Government of Bengali in these terms:—

“In 1789-1790 the jumma to be paid by Kadir Ali was to be fixed, with a view to the Permanent Settlement. As might be expected considering the magnitude of the estate, it appears to have undergone great consideration. Every village was enumerated and entered in a register, the deductions and allowances to be made out of the income, and the particulars of the lands to be excepted from the assessment (for some lands called nankar land, were excepted), were the subject of correspondence between the Collector of the District and the President and Board of Revenue at Fort William and finally the jumma was fixed at Rs. 65,459-8-10-1/3 pies”.

We now come in order of time to the important document exhibit J which is greatly relied upon by the appellant. It is a parwana issued by Mr. Dickinson, the Collector of Bhagalpur, on the 20th January, 1794. It is stated in the parwana that pargana Handwe, the zamindari of Raja Subhao Singh, had been held from the time of his predecessors in istimrari mukarrari right under a patta bearing the seal and signature of Captain Browne, the district officer of mahal Jungle terai, Kharagpur……………granted to the said Raja Udit Singh, Gopal Singh…………and other ghatwals of the said pargana…………at a consolidated jama of Rs. 2,701, and after referring to the fact that certain of the ghatwals had died, it recognised successors to the office and declared that the shares of the deceased ghatwals were allowed to stand in the name of the successors as istimrari mukarrari descendible to children. The document concludes with a reference to the duties to be performed by the ghatwals and then follow these words which are taken almost bodily from exhibit I:—

When they (the ghatwals) are called by the huzurs, they should present themselves before the huzurs without delay being accompanied by sardars and a body of archers and barkandazes numbering 307 persons of whom the sardars shall be 7 and the archers and barkandazes 300.

This document dissipates any doubt that might otherwise have existed as to the effect and true import of exhibit I.A we have already stated, one of the arguments addressed to us with regard to exhibit I was that Captain Browne had granted that patta as representing the Kharagpur estate of which he was then in charge. We have dealt with that argument and it is not necessary to repeat the reasons; why we consider the view to be incorrect. Captain Browne's grant is referred to in Mr. Dickinson's parwana as having been made by the district officer of the mahal Jungle Terai, Kharagpur etc., and Mr. Dickinson could not have issued this parwana with the seal of the East India Company after the zamindari of Kharagpur had been restored to Qadir Ali, unless the persons mentioned in the parwana were Government ghatwals and they were required to render services to the ruling power. By this time the Decennial Settlement of the entire mahalat Kharagpur including Handwe had been concluded with Raja Qadir Ali and if Handwe was solely a concern of the zamindar of Kharagpur, and the Government had nothing to do with it, it is manifest that a parwana such as exhibit J ought not to have been issued by the Collector of Bhagalpur. In that case the only person having authority to issue the parwana was Qadir Ali himself. The parwana, nowever, is entirely consistent with the theory that the persons to whom it was addressed were ghatwals over whom the Government had been exercising direct authority. Raja Subhao Singh, Udwant Singh and several other ghatwals were dead and as a mukarrari tenure in those days meant, a tenure for life only, a fresh grant was necessary and by means of this parwana the Collector confirmed the tenure in the names of the heirs of the deceased ghatwals. That the parwana was granted in the ordinary and regular course is shown by the fact that it has been referred to in numerous official documents as the basis of the title of the ghatwals. Exhibit U is a memorandum of istimrari mukarrari tenures in the district of Bhagalpur prepared in 1801-1802 and it is recited in this document:

“Under sanad, dated…………………………, granted by Mr. Dixon (Dickinson), Raja Purandar Singh is at present in possession and occupation of the shares of his uncle Raja Subhao Singh, etc.”

There is also a reference to the parwana in the judgments of both the trial and the appellate courts in the litigation of 1810 to 1819, in the decision of 1838 (exhibit 9) of proceedings taken by the Government for assessment of Handwe, in an entry made about the year 1879, exhibit T, the General Register of estates subject to the payment of revenue to the Government and in numerous other documents including the several settlement reports. The respondents, however, assert that this document was procured by the ghatwals by mis-representing the facts to the Collector of Bhagalpur and to prove that this was done they have filed two documents, exhibits 3 and 138. These documents purport to be copies of parwanas issued by the Collector to Raja Purandar Singh and Raja Qadir Ali respectively at the instance of the latter. They set forth the gist of a complaint which Raja Qadir I Ali had made to the effect that Raja Purandar Singh, though only a ghatwal, had by making false representations obtained from the Collector on the strength of the patta, granted by Captain Browne a parwana (exhibit I) which contained the words “zamindari”, “bahali” (confirmation) and “mukarrari”. It is stated in the parwana to Raja Qadir Ali (exhibit 138) that it had been ascertained after enquiry and perusal of the papers of both parties and those in the office of the huzur that Purandar Singh was a mere ghatwal having no concern at all with the zamindari and that the word “zamindari” had been wrongly used in the previous parwana. He was informed that intimation of the cancellation of that parwana was being given to Purandar Singh and assured that it would be of no avail to Purandar Singh. In the parwana (exhibit-3) alleged to have been sent to Purandar Singh a similar statement was made as to his rights and he was rebuked in these terms:—

“The obtaining of a parwana from the huzur which contains the word ‘zamindari’ and which contains the mukarrari, in contravention of the patta bearing the seal of Captain James Browne cannot be regarded as anything but fraud; for you have got yourself described as zamindar in the said parwana on the strength of the patta of Captain James Browne, although there is nothing in it which proves your zamindari and your being a ghatwal is clear enough. Such being the case the mention of “zamindari” and ‘confirmation of mukarrari in the said parwana is most improper.”

He was informed that the previous parwana was cancelled and of no effect.

Both exhibits 3 and 138 purport to be copies obtained of original documents sometime in 1850 and are said to have been produced from the record room of the plaintiffs. A document similar to exhibit 3 was filed by Raja Qadir Ali at the appellate stage of the litigation of 1810 to 1819 but it was rejected as the court was not satisfied that it was genuine. The court observed with reference to it—

“A copy of the parwana, dated the 1st June, 1794, (torn) bearing the signature of Mr. Dixon (Dickinson) is put in by the appellant's pleader. A perusal of it shows the mark and signature of Mr. Hamilton, Collector. There is no signature of Mr. Dixon (Dickinson) thereon in it. Accordingly it does not satisfy (torn).”

The particular reason assigned by the court for rejecting the document does not seem to be conclusive, but the fact remains that the genuineness of the document was doubted by a court which heard the case not very long after the date when the document is said to have come into existence. It is difficult to believe that if exhibit J had been cancelled by Mr. Dickinson, the fact would not have been brought to the notice of the court of first instance. One would have expected Qadir Ali to be in possession of the original document delivered to himself which affected his interest in the estate so vitally, but only a copy of the parwana to Purandar Singh was filed and it bore the signature of Mr. Hamilton. It is said that Mr. Hamilton signed the document to attest the correctness of the copy. That may be so, but we have not seen it and are not in a position to say how we would have treated it if it had been before us.

A petition was filed before us on behalf of the respondents on the 14th March, 1934, after the arguments for the appellant had been concluded and when the arguments on behalf of the respondents were in progress asking us to send for what is described in the petition “Register of Miscellaneous Revenue letters sent from 1810-13-15” maintained in the Collectorate of Bhagalpur and still preserved there. It is suggested that by means of this register it can be shown that one Mr. Frederick Hamilton was the Collector of Bhagalpur in the year in which the copy might have been obtained. It is conceded in the petition that the trial court was not moved to receive this document in evidence and that all that was done was to put in before it certain information slips which are not now on the record while the arguments in the case were being heard. From the order-sheet it appears that the respondents merely asked the Subordinate Judge to allow this petition with the information slip to be filed with record. It does not appear to us that any sufficient ground has been made out by the respondents for the reception of additional evidence at this stage, nor, in our opinion, would such evidence if it were admitted be of any advantage to the respondents.

The copies which have been produced before us do not show that they are copies of documents which bore Mr. Hamilton's signature and exhibit 3 therefore cannot be the copy produced before the court of Murshidabad. Exhibit 3 contains the remark—

“Original bears no signature”

and in exhibit 138 it is also noted—

“The register from which this has been copied does not bear the signature of a Hakim (Officer).”

One of these documents was produced in the settlement proceedings in 1923 on behalf of the respondents, and the Settlement Officer rejected it, observing that the certified copy produced bore no signature and he could not accept such a document as authentic without the examination of the original register. We have already shown that exhibit J has been referred to in many official records of subsequent date but nowhere has it been suggested that, it had been cancelled. It appears to us in these circumstances that it would be most unsafe to rely on exhibit 3 and exhibit 138 and on the strength of these documents to hold that exhibit J was cancelled by Mr. Dickinson. It may be mentioned here that in a petition presented on the 14th May, 1919, by Jhabban Singh to the court which had heard the appeal he stated—

“The manner in which the said Raja filed before the huzur the documents in course of the proceedings in Suit no. 51 of 1812 is known to you. It is no wonder if he again gets up, such documents against me in the same manner to put me to harassment.”

The allegation in this petition that Raja Qadir Ali had fabricated documents cannot be assumed to be true, but at any rate it indicates the necessity for the exercise of caution in the examination of some of the documents the originals of which are not before us and which have been produced for the first time in this Court.

It is contended on behalf of the respondents that there are statements in exhibit J which are not in consonance with the facts. It contains, for example, the assertion that pargana Handwe was the zamindari of Raja Subhao Singh though Captain Browne's patta (exhibit I) purported only to create an istimrari mukarrari tenure.”. Again it is recited in exhibit J that Subhao Singh had been “paying rent to the Sarkar” but actually he paid revenue directly into the Government treasury only for some years and after 1781 he was directed to pay it to Raja Qadir Ali. These statements are capable of explanation. The use of the word zamindari may be merely complimentary or it may be due to the fact that Raja Subhao Singh, and others possessed a status not unlike that of a zamindar of the time prior to the advent of the British rule. Captain Browne in his “India Tracts” generally refers to the feudal chiefs as zamindars and there can be no doubt that though their position was inferior to that of a Raja they exercised great authority in their estates. The fact that almost the exact sum paid by the Handwe ghatwals was the revenue payable by the Raja of Kharagpur for Handwe into the Government Treasury may account for the statement about the payment of rent to the Sarkar.

A more serious criticism of exhibit J is that it expressly states that the zamindari mukarrari right which it recognised would be descendible to children, whereas in exhibit U which is a list of mukarrari tenures prepared in 1801-1802 and in which the seventh column is specifically provided for the entry of information whether the mukarrari is personal or descendible to children, the mukarrari tenure of pargana, Handwe is noted as being personal. Mr. Manuk argues that this entry can be explained only on the supposition that exhibit J was subsequently cancelled or modified. The argument is impressive but as we ale not in possession of information as to how and in what circumstances this list (exhibit U) was prepared so as to be able entirely to exclude the possibility of an error having been committed in its preparation, we do not think that the statement in exhibit U referred to by Mr. Manuk is sufficient to establish conclusively that the operation of exhibit I was affected by any subsequent act of Mr. Dickinson. Moreover if exhibit I was cancelled, it was cancelled in its entirety as was stated in the alleged later parwanas (exhibits 3 and 138) and in that case there should have been no reference to it at all in the list.

Two years after the issue of the parwana exhibit J by Mr. Dickinson the entire mahalat Kharagpur including pargana Handwe was settled with Raja Qadir Ali at the Permanent Settlement as appears from the patta exhibit 92 and the kabuliyat exhibit 93. The jama for the mahal was now fixed and assessed at a consolidated sum of Rs. 65,459-8-0 and odd which was the same jama as had been fixed in the Decennial Settlement, and it was provided that “all profits accruing to the zamindar besides the said jama due under his management will belong to him, and the Government has nothing to do with it”. It may be remembered that in the earlier settlement of 1880-1881 the sanad granted to Raja Qadir Ali as well as the accompanying daul settlement contained a statement in some detail as to how the total assessment had been arrived at. This statement showed that Handwe had been assessed at Rs. 2,818 odd which was the precise amount payable by the Raja of Handwe and the other ghatwals under the patta of Captain Browne. No such details are, however, furnished in the Permanent Settlement patta and kabuliyat (exhibits 92 and 93) and in the absence of other papers relating to the Permanent Settlement, we do not know upon what basis the different lands and parganas included in this estate were assessed. There can, however, be no doubt, that, to use the language of Lord Kingsdown in Raja Leelanund Singh Bahaddor v. The Government of Bengal Handwe was included in and covered by the assessment of the Kharagpur zamindari.

Certain documents which if treated in strictly chronological order would have found place elsewhere may now be conveniently dealt with together as they all tend to show how the position of Handwe was affected by the settlement of the Kharagpur estate with Raja Qadir Ali. They are exhibits 111, 137, 6 and 94. Exhibit 111 is a statement of ghatwali villages of the Kharagpur mahals which bears no date, but Mr. Manuk has been able to convince us from internal evidence that it must have been prepared about the year 1781. It contains a detailed statement of the taluks in each ghatwali, the names of the ghatwals, the force to be furnished and the rent payable by each ghatwal. The taluks, of pargana Handwe as well as the names of the ghatwals by whom they were held appear in this list and Qadir Ali is mentioned as the person possessing the power of appointing the ghatwals. The latter statement has been omitted from the printed translation of the exhibit. Exhibit 137 is a copy of a statement similar to exhibit 111 which appears to have been prepared in 1787-1788. Both the statements of which exhibits 111 and 137 are said to be copies were apparently filed by Qadir Ali in the Collectorate in the ordinary course as appears from exhibit 98 to which reference will be made later, and we entertain little doubt as to, the genuineness of these statements, and particularly of the one of which exhibit 137 purports to be a copy as it has been referred to in several official documents of later date. According to the plaintiffs the importance of these lists is three-fold as they show: (1) that Handwe fell within the zamindari of which Qadir Ali was the proprietor; (2) that Qadir Ali had been asserting from the beginning a right to appoint the ghatwals, and (3) that he had recognised the successions by transfer and inheritance, some in the first statement of 1881 and the rest in the second statement of 1787-1788, which are referred to and confirmed, by Mr. Dickinson's parwana (Exhibit J) of 1794. According to the J report of the Collector (Exhibit 98) to the Court which heard Qadir Ali's appeal against Jhabban Singh in 1819 it was by means of such statements that Qadir Ali communicated to the Collector successions to ghatwalis and one of the statements, that of 1887-1888, was the only record the Collector was able to find of any intimation received from the Raja regarding the appointment of Purandar Singh to the office of ghatwal on the death of Subhao Singh.

There can be no doubt that since 1792 the proprietors of Kharagpur as well as the Government officials have treated Handwe as being included in the Kharagpur estate. It is doubtful, however, whether much value can be attached to the statement which is made in exhibits 111 and 137 that the proprietor of Kharagpur had a right to appoint the ghatwals. The statements of which exhibits 111 and 137 are copies were prepared soon after the zamindari of Kharagpur had been restored to Qadir Ali and they may not have been scrutinised by any responsible officer after they were lodged in the Collectorate. As we shall see presently, the absolute right to make the appointment of a ghatwal was questioned by Jhabban Singh of Handwe on the very first occasion on which Qadir Ali attempted to alter the line of succession, and Jhabban Singh's contention that he had no right to do so was upheld by the civil court. The grant by Captain Browne was virtually a hereditary grant, or soon came to be regarded as such, and therefore the formal recognition of succession, and even transfers by the ghatwals inter se, may not have been considered to be a matter of sufficient importance to call for direct intervention by the Collector. It may have been conceived to be a function within the province of a zamindar representing the Collector as an officer of the Government; for it was not until the permanent Settlement that he was acknowledged to be a proprietor of the soil. In view of these circumstances it seems to us that exhibits 111 and 137 throw little light on the question whether Handwe is a Government ghatwali or a ghatwali of the Kharagpur estate.

Exhibit 6 is an extract from the quinquennial register of 1202 Fasli (1794-1795) containing a list of parganas and component mahals and villages showing the names of the proprietors and the Government revenue. Qadir Ali is entered as proprietor of Kharagpur which includes pargana Handwe. The revenue is assessed village by village but in the copy exhibited the column is left blank after the first few pages and there are no entries of revenue against the villages of pargana Handwe. The register was prepared under section 2 of Regulation XLVIII of 1793 as a register of estates subject to the payment of revenue to Government.

Exhibit 94 is an extract from the statement of jama and gross produce of the Kharagpur mahals for 1206 Fasli (1798-1799) obtained from the Collector's record room. It contains a list of villages of Handwe, of which Qadir Ali is shown to be the proprietor, but all the villages which are in the defendant's possession are not mentioned in this list. It is also not apparent whether it is a return by the proprietor or a statement compiled by the Collector.

The plaintiffs rely on these documents (exhibits 111, 137, 6 and 94), which were prepared successively soon after the restoration of the zamindari to Qadir Ali in 1781 and after the Decennial and Permanent Settlements, as showing that Handwe was being treated not only by Qadir Ali but by the Government officials also part of the Karagpur zamindari, and there can be no doubt that prima facie these documents do support the plaintiffs' case on that point.

In this connection exhibit U may be referred to again. It is a “memorandum of the jama of istimrari mukarrari mahals” in the district of Bhagalpur which we had occasion to notice with reference to Mr. Dickinson's parwana. The exhibit is the serial number relating to Handwe extracted from a register of all the istimrari mukarrari mahals and it shows in separate columns the name of the grantor (Captain Browne), the date of the grant, the names of the grantees, the present possessor (Purandar Singh) describes it as personal, that is to say, not descendible to children, and states the jama. In the remarks column it is stated that the mukarrari patta was granted after the dewani “subject to ghatwali” and there is a reference also to the sanad, dated the 20th January, 1794, granted by Mr. Dickinson (exhibit J) to Purandar Singh and others. The respondents contend that exhibit U does not necessarily show that Handwe is a Government ghatwali because it is only one of many ghatwali tenures two of which, serial nos. 49 and 50, Sahra Mahra and Kamardiha, are admittedly subordinate to Kharagpur. The criticism is pertinent and we do not consider that the inclusion of Handwe in this register signifies that it is a Government ghatwali.

We shall now pass on to the important litigation of 1810-1819 between Raja Qadir Ali and Raja Jhabban Singh of Handwe. It appears that upon the death of Raja Purandar Singh, Raja Qadir Ali asserted a right to appoint as his successor a person who was not his heir or even a member of his family and actually appointed first a man named Bhawani Singh and then another man Prasad Singh, to perform the duties of ghatwal, but when in turn they went to take possession of the ghatwali villages Jhabban Singh drove them away. This led to a criminal proceeding in which apparently Raja. Qadir Ali was referred to the civil court and, therefore, he brought a suit against Jhabban Singh. He asserted that the practice obtaining in his zamindari and family was that whenever any person wished to obtain a sanad of appointment as ghatwal of any mahal appertaining to his zamindari, he made an application offering the existing or a higher rent. He claimed the right to appoint and replace ghatwals of the villages which were included in his zamindari, asserted that Jhabban Singh was unfit for the post and prayed for possession to enable him to appoint another ghatwal from whom he would take an enhanced rent. In the appellate court he asserted that the grant of Captain Browne was to seven ghatwals besides Subhao Singh,—in point of fact it was to more than seven—that Subhao Singh's ancestors had paid rent to him at varying rates and that the other ghatwals were still paying rents at varying rates. In resisting the suit Jhabban Singh relied on Captain Browne's patta and Mr. Dickinson's parwana and asserted that his ancestors had enjoyed the status of malik and zamindar at a fixed rent for several hundred years. With reference to the sanad of Warren Hastings to Raja Qadir Ali he stated—

“That when in 1188 Fasli (1780-1781) the settlement of mahal Kharagpur with the plaintiff was taken, up, the plaintiff put in an assessment daul (vide exhibit 88), that is to say, an application for goshwara settlement with him; that the settlement of pargana Handwe, the milkiat zamindari of the defendant, and that of Chandwe Passae, the milkiat zamindari of Rup Narain Deo (the son of Jagarnath Deo of Lachmipur of whose insurrection Captain Browne gave an account in his ‘India Tracts’) were under the patta bearing the signature of the said Captain allowed to stand good.”

He also stated that the revenue previously used to be paid by him directly into the Government Treasury and alleged that owing to the insecurity of the route from Handwe to Bhagalpur he was afterwards ordered to pay it through the zamindar and had been so paying it from 1781 onwards. He further asserted that on the death of Purandar Singh he had entered into possession of his estate in due course and that there was no necessity for him to obtain any sanad from Raja Qadir Ali. The Judge accepted the defence case almost in its entirety and dismissed the suit. The reasoning to be found in his judgment [Exhibit V(2)] is at places somewhat obscure and difficult to follow but the net result of the decision was that the defendant and his ancestors had been for a long time zamindars and mukarrari istimraridars with the title of ‘Raja’ of pargana Handwe; that they were in possession of the zamindari milkiat and istimrari mukarrari right at one and the same jama and that the ancestors of the defendant had never been appointed to the post of ghatwal by the plaintiff. The Judge added—

“The plaintiff has not filed any kabuliyat or application bearing the signature of Raja Subhao Singh or Raja Purandar Singh with regard to the payment of rent at the jama or at a higher jama than thet specified in the mukarrari patta.”

It is important to remember this observation because in the present litigation exhibits 130 and 133 have been filed on behalf of the plaintiff and they are claimed to be copies of such kabuliyats.

Against the decision Raja Qadir Ali preferred an appeal to the Provincial Court at Murshidabad but the appeal failed and the judgment of the trial court was upheld. The judgment of the appellate court. Ex. V(1), is clearer and its reasoning seems to be more in accord with documents relied upon by Jhabban Singh. What was emphasised by the appellate court was that it had been made clear by the documentary evidence produced on behalf of Jhabban Singh that the disputed property was his ancestral, property and had been held by him in istimrari mukarrari right and that there was no evidence that the annual jama at which the property was held had ever been varied. The appellate decision turned mainly upon the heritable character of the tenure and the fixity of the jama, these considerations being sufficient to meet the claim of Raja Qadir Ali both as to his being entitled to appoint a ghatwal of his own choice and to demand an enhanced rent for the tenure. The judgment, however, concluded as follows:

“Regard being had to all these doubts and grounds set forth in the judgment of the Judge, this court finds the judgment of the said officer on the grounds mentioned therein consistent with justice.”

The appellant's contention is that this concluding paragraph in the judgment of the appellate court clearly indicates that the findings of the trial court were upheld in their entirety.

Before we proceed to discuss the effect of these judgments upon the claim in the present case it may be mentioned here that in the appellate court Raja Qadir Ali filed additional documents, some of which have already been referred to, but they were not considered by that court to be reliable. Nor did the court rely upon a report (exhibit 98) sent by the Collector of Bhagalpur in 1816 in reply to certain questions addressed to him. A similar report (exhibit 97) had been submitted by the Collector to the District Judge in 1810 in response to a reference made by the Judge. Exhibit 97 simply states that Handwe is the milkiat zamindari of Raja Qadir Ali, but exhibit 98 is more detailed and reproduces the questions which were required to be answered along with the answers thereto. The following matters are stated in this report:—

(1) that excepting the ghatwal of Chandwe Passae (Lachmipur) all the ghatwals and mukarraridars used to pay their rents to the Raja of Kharagpur and had remained obedient and loyal to him;

(2) that Raja Qadir Ali had filed certain statements (the statement for the year 1195 Fasli being evidently the one of which exhibit 137 is a, copy) about ghatwali tenures of his zamindari in the Collectorate and in those statements he had noted the changes of office of the ghatwals; and that the power of appointing and dismissing the ghatwals of the Kharagpur mahals rested with the Raja; and

(3) that when upon the death of Subhao Singh Purandar Singh had been appointed as his successor, the fact was simply noted in the statement of ghatwali villages for 1195 Fasli, but no trace of any separate intimation of the succession by way of a petition could be found in his office.

The question as to the effect of the judgment of the Provincial Court upon the present litigation has been argued at great length before us. It has been urged on behalf of the appellant that while upholding the decree of the trial court, the appellate court has confirmed all the findings of that court including the I finding that Jhabban Singh was the zamindar and malik of Handwe and it is contended that the decision has established once for all the status of the ghatwals of Handwe as that of proprietors of an estate, independent of the Raja of Kharagpur. According to the respondents, on the other hand, all that was decided in the suit was that Handwe was held in istimrari mukarrari right and that Qadir Ali was not entitled either to enhance the rent or appoint a new ghatwal in a capricious or an arbitrary manner or demand an enhanced rent from the successor of the last ghatwal. It is further urged that no question of res judicata can arise because the respondents derive their title from purchasers at a revenue sale and, therefore, cannot be deemed to be successors in interest of Qadir Ali. It is contended that, the auction purchasers acquired all the rights which the Crown had conferred on Qadir Ali at the time of the Permanent Settlement and consequently they are not affected by subsequent judicial decisions against Qadir Ali in respect of any of those rights. As at the time, when the litigation took place the pleadings as well as the judgments were couched in somewhat loose and obscure terms and it was not the practice to frame issues, particular care is needed in order to ascertain what precisely were the matters which were required to be decided and were in fact decided. We have examined the, judgment closely with these considerations in mind and the conclusion we have reached is that it was decided in clear and express terms that as Jhabban Singh held the property under an istimrari mukarrari patta he could not be ejected and that the rent being fixed was not liable to enhancement; that it was also found by the trial court that the defendant possessed milkiat and zamindari rights in pargana Handwe and that this finding was not set aside or ignored but was confirmed by the appellate, court.

On the question whether this decision is now res judicata the following authorities were cited before us on behalf of the respondents in support of their contention that as heirs and successors in interest of impurchasers of the Kharagpur estate at a revenue sale they are not bound by decisions against the former holder because they do not claim under him but under a different title:—Luhhmeer Khan v. Collector of Raj shakye; Lalla Rammer sad v. Chowdrey Skeo-suhya; Baboo Prosunno Coomar v. Govindanath Goptu; Moonshee Fuzlool Rahman v. Pran Dhan Datt; Raja Satyasaran Ghosal v. Mahesh Chandra Mitter; Kooldeep Narain Singh v. The Government; A.J Forbes v. Meer Mohammad Hossein; Narayan Das Khetry v. Jatindra Nath Roy; Radha Gobind Koer v. Ralckal Das Mukkerji; Jobeda Khatun v. Tulsi Charan Das; Jugeshwar Prasad v. Ramdhari Mahto; Gadadhar Bose v. Radha Charan Poddar; Nakul Chandra Basu v. Soshti Charan Biswas; Raja Sashikanta Acharyya v. Raja Sarat Chandra Rai Chaudhuri. On the other hand reliance was placed by the appellant on Boykuntnath Chatterjee v. Ameeroonissa Khatoon Tara Pershad Mitter v. Ram Nursingh Mitter and Natchier v. Srimut Rajah Mootoo Vijaya Raghanda Bodha Gooroo Sawmy Periya Odaya Taer. The contention on behalf of the appellant is that in certain cases the purchaser of an estate at a revenue sale may be bound by a decision obtained against the previous holder of the estate upon the principle that the previous decision was obtained not merely against the holder for the time being but against the estate which, was fully represented.

From, a review of the authorities cited two principles emerge which may be taken to be well settled: (1) that an auction-purchaser at a revenue sale of a permanently settled estate is remitted to all the rights possessed by the original settler at the date of the settlement and may take advantage of that position to sweep away or get rid of all the intermediate tenures and encumbrances created by the preceding zamindar since that date [See A.J Forbes v. Meer Mohammad Hussein] and (2) that such a purchaser does not claim title through the defaulting proprietor, but what passes to him in law is the interest of the Crown subject to the payment of the Government assessment [See Maharaja Suraj Kant v. Sarat Chandra and Narain Das Kshetri v. Jatindra Nath Rai Choudhury]. These propositions are the necessary corollaries of a series of enactments among which may be mentioned section 5 of Regulation XLIV of 1793; section 5 of Regulation L of 1805; section 24 of Regulation V of 1800; section 29 of Regulation XI of 1822, and section 37 of Act II of 1859. Section 29 of Regulation XI of 1822 which was in force at the time when the respondents' ancestors purchased the Kharagpur estate at the revenue sale is very clear on the point and runs as follows:—

“In the case, however, of an estate being sold for the recovery of any part of the revenue assessed upon it, since the act of sale transfers to the purchaser all the property and privileges which the engaging party possessed and exercised at the time of settlement, free from any accidents or incumbrances that may subsequently have been imposed, or have supervened thereupon such as sale, gift, or other transfer, mortgage, marriage settlement, or other assignment, or the like, the property and privileges possessed and exercised as aforesaid, being perpetually hypothecated to Government, for the revenue assessed thereon, no claim of right founded on any act of the original engager or his representative, or on any plea impeaching the title by which the said engager may have held, shall be allowed to impugn the right of the revenue authorities to make the sale, or to bar or affect the title and interest conveyed to the purchaser by the sale.”

From the mere fact, therefore, that the purchaser of an estate for arrears of revenue does not claim through the defaulting proprietor it logically follows that any decision that may have been obtained against the previous proprietor would not affect the title of such a purchaser. Thus there are direct authorities on the subject of res judicata which seem to support the contention of the respondents that whatever matters may have been decided in the litigation of 1810 between Qadir Ali and Jhabban Singh they cannot be deemed to be res judicata as between the present parties. It is, however, urged on behalf of the appellant that we should not overlook the principle which has been enunciated in a long line of cases that a decree obtained against a widow may, if it was obtained after a fair contest and without any fraud or collusion, bind a reversioner on the ground that the estate was for the time being represented by the widow. The enactments to which we have referred merely provide that the purchaser at a revenue sale shall be remitted to all the rights of an original settler at the time of the Permanent Settlement. Prima facie it seems permissible to argue that such decrees as merely decided what rights were possessed by the actual settler at the time of the Permanent Settlement should also bind the purchaser at a revenue sale as otherwise there may be no finality in any litigation regarding land which happens to be within a revenue paying estate. Unfortunately, however, the principle relied upon by the appellant has never been applied to the case, of an auction-purchaser at a revenue sale and as we are bound by the authorities which have been cited on behalf of the respondents we must hold that the decision arrived at in the litigation between Qadir Ali and Jhabban Singh will not operate as res judicata between the present parties. The fact, however, remains that though, the plea of res judicata fails, vet as the courts dealing with the dispute between Qadir Ali and Jhabban Singh had fuller materials before them, their decision cannot be entirely overlooked. Indeed whatever the legal effect of that decision may be it had a marked effect at least for sometime not only upon the conduct of the parties but also moon the official attitude towards them. We find, for instance, that in exhibit K, a list of ghatwals of Kharagpur prepared by a Collector in 1226F. (1818-1819), the name of Jhabhan Singh and the parganas which were in his possession are not mentioned. In 1816 Jhabban Singh objected to his being described as the mere possessor of a ghatwali mukarrari and pointed out that his predecessor-in-interest Purandar Singh used to be designated “Raia zamindar and mukarrari istimraridar” (vide his petition to the Collector, exhibit P) Agan in a petition (exhibit 141) filed by Jhabban Singh on the 14th May, 1819 after referring to the result of the judgments of the two courts in the litigation of 1810-19 he asserted that pargana Handwe was his ancestral zamindari and istimrari mukarrari property and asked the court to send copies of the judgment to the Board of Revenue so that they might be given effect to and he might be allowed to pay the revenue of Handwe separately to the Collector. This petition was dismissed—whether after contest or without any, contest we do not know. Again, in a petition exhibit 101, Maharaja Rahmat Ali on 13th February, 1832, stated that emboldened by the decision, Jhabban Singh had not been paying the rent which was justly due to him. Indeed in a report which was sent by Mr. Ward in November, 1833, with which we shall presently deal he notes that the “Handwe tenure is now enjoyed by Jhabban Singh rent-free”.

We come next to an important proceeding (vide Ex. 7) which is greatly relied upon by the respondents as containing a decision final and binding as res judicata with regard to the question of the ownership by the Raja of Kharagpur of the proprietary rights in Handwe. The proceeding was, initiated under Regulation V of 1825 which provides that whenever a Collector is of opinion that any tract of land belongs to the Government and that no person has bona fide possession of it, he may by a notification to be posted in his office…………require all claimants to the land to appear before him within a reasonable time……… and on the appearance of such claimants proceed to investigate their claims in the manner prescribed by Regulation II of 1819. It is also provided that if the Collector shall decide that none of the claimants has bona fide possession of the land in question, then subject to confirmation of the decision by the Board, of Revenue, the land shall be at the disposal of the Government until it shall be adjudged to be private property by a decree of a court in a regular suit. A proceeding under these provisions was instituted in respect of certain lands which were claimed by the Government to appertain to a tract called the Damin-i-koh and to have been excluded from the settlement with zamindars, and Mr. Ward, to whose report on ghatwali tenures in the district we have referred, was appointed Special Commissioner to deal with the matter. Notices were served on Maharaja Rahmat Ali of Kharagpur and Jhabban Singh and in the case that was instituted the Government was treated as the plaintiff and these two persons as defendants. The question for decision was whether the lands were included in Sarmi, a pargana of Handwe, or not. Mr. Ward's procedure was to decide first whether Jhabban Singh or Maharaja Rlahmat Ali was the proprietor and zamindar of Handwe. He held upon a perusal of the report sent by the Collector and certain papers in the Collector's office that Maharaja Rahmat Ali was the proprietor of Handwe and that Jhabban Singh held that pargana only in lieu of service as ghatwal. Having decided this issue in favour of Rahmat Ali and taking the written statement of the Maharaja to mean that the boundary lines of the Damin-i-koh as fixed by the Government were admitted to be correct, he found that the disputed area belonged to the Government. Mr. Manuk's contention is that there was a distinct issue in this proceeding as to whether Maharaja Rahmat Ali or Jhabban Singh was the proprietor of Handwe and the decision arrived at by Mr. Ward must be held to be res judicata between the parties. We are, however, unable to accept this contention. It is well-settled that the decision of an issue is res judicata only when the issue arose directly and not incidentally having regard to the Subject-matter of the particular suit or proceeding. Now, the main Question that Mr. Ward had to decide in this proceeding was whether the disputed area, appertained to the permanently settled mahal of Sarmi or was outside it. If it was included within Handwe then the Government evidently could have no claim to it. If on the other hand, it was not included within that pargana, then whether Handwe belonged to Jhabban Singh or to Rahmat Ali the Government was entitled to take possession of it and to make it the subject of a fresh settlement. It is thus clear that the question whether the disputed land appertained to Sarmi or not was a matter to be decided upon evidence or upon local measurements and not upon the, result of the enquiry as to which of the two claimants was the proprietor of Handwe. We do not suggest that it was not open to Mr. Ward to frame such an issue but in our opinion the issue being incidental, Mr. Ward's decision upon it cannot make it res judicata. We, therefore, do not agree with the view taken by the lower court in this matter but at the same time we recognise that the decision of Mr. Ward is a piece of evidence under section 13 of the Evidence Act to which some weight must be given in the determination of the status of the two estates in relation to each other.

We shall now deal with another important document exhibit 7(a), a report submitted by Mr. Ward on the 18th November, 1833, regarding the tenures under which the ghatwali lands in the district of Bhagalpur were held. It appears that in 1819 an officer of the Government recommended an enauiry of this kind with a view to improvement of the efficiency of the ghatwali institution, the settlement of differences between the ghatwals and the zamindars and the removal of the ghatwals from the control of the zamindars to the control of the Government. The Government was averse to adopting this proposal without being in possession of more information regarding the origin of the institution which therefore Mr. Ward was reauired to investigate. If after the investigation he should consider a formal enquiry expedient, his opinion was asked as to the rules under which it should be conducted with particular reference to Regulation XXIX of 1814 by means of which the relations between the ghatwals and the zamindars had been settled in Birbbum. He found the ghatwals of Bhagalpur to be of two descriptions: (1) those created by grants of feudal tenures from zamindars within whose estates they were situated and to which they were appendages. These were called Jungle Terai ghatwalis: (2) those held under grants originally assigned by the Mahommedan Government and expressly exempted from the payment of revenue to support a line of police posts under the Raj Mahal line of hills for the protection of the lowlanders from incursions of the hill trihes and confirmed by the British Government on its accession to the Dewani. The ghatwals of this description Were designated chaukibandi ghatwals. The ghatwals belonging to the first category were to be found according to Mr. Ward in Kharagpur. Chandan and other mahals belonging to the Kharagpur estate. So far as he had been able to trace the origin of these tenures, he could not discover that they differed in any way from those of the same name in the district of Birbhum. He stated that it could not be doubted that these tenures were dependent on the zamindars, had always been considered as appendages to the estate in which they were situated and though hereditary were subject to the authority of the zamindars to the payment of rent in token of feudal obedience and to other conditions of service specified in the grants. Mr. Ward then proceeded to state that gradually the authority of the Rajas to whom service was first rendered declined and the ghatwals threw off their allegiance to the Rajas. He gave an account of the history of Handwe and concluded that it was held from the Raia, of Kharagpur “in like manner and under precisely the same tenure as that of Lachmipur” which had been separated from Kharagpur on the recommendation made by the Saddar Dewani Adalat in 1809 in the case of Runarain Deo v. Raia Qadir Ali. According to Mr. Ward, grants to successors to the ghatwali tenure were renewed during the Mahommedan Government by the Raja of Kharagpur but on the acquisition of the Dewani, sanads were issued immediately from the Government. His authority for this statement was the grant of the sanad exhibit I in 1776 by Captain Browne and the subsequent parwana by Mr. Dickinson, exhibit, J. He then dealt with the Decennial Settlement and the effect of the litigation between Jhabban Singh and Raja Qadir Ali his view of that suit being that it did not appear to have been brought for the recovery of possession of the pargana but for the payment of enhanced rent. His conclusion was:

“the tenure under which the jagir is held can only be considered ghatwali, subject to the payment of a certain fixed rent, and other conditions of service, but claimed by Jhabban Singh as a zamindari for which no revenue has been paid since 1928.”

On the subject of another ghatwali in Tappa Dhumsain, Mr. Ward stated—

“In the Kharagpur jagir the whole of the ghats have from the first been under the control of that zamindar and of the chief of Handwe.”

Mr. Ward then stated that the tenures, so far as the interest of Government was concerned, were sufficiently defined to remove all doubt of their forming a part of the zamindaries and of their having been included in the assessment in the Decennnial Settlement, situated as they were in the parganas that were recorded in the engagements of the zamindars as assessed at that time. He finally recommended adoption of the same proceedings as led in the district of Birbhum to the enactment of Regulation XXIX of 1814. The bearing of this document upon the case is that it is an exposition of the official view as to the status of Handwe and that it accepts as an historical fact the feudal subordination of the ghatwals to the Raja of Kharagpur before the accession of the East India Company to the Dewani.

Sometime about 1836, the Government started proceedings to resume the ghatwali tenures in Kharagpur, but before this topic is dealt with, it should, be mentioned that the entire Kharagpur estate was sold at a public auction for arrears of revenue on the 29th July, 1840, and purchased by the ancestors of the plaintiffs and one Bala Nath Sahu, who subsequently transferred his interest to the former. The respondents have filed a large number of documents relating to the sale and the delivery of possession that followed and the mutation proceedings by which the plaintiffs' ancestors were recorded in the Collector's register as proprietors. The documents specifically referred to on behalf of the respondents are exhibits 14, 15, 104, 143, 151, 153 and 23. Exhibit 14 is a report forwarded by the Collector to the Commissioner in which he deals with a number of objections raised 1 by Maharaja Rahmat Ali as to the validity of the revenue sale. In one of the paragraphs of this report the Collector dealing with a grievance of Maharaja Rahmat Ali that the ghatwals of Handwe had been negligent in paying rent to the Maharaja, points out that Handwe with other dependent ghatwals was included in the settlement of Kharagpur and adds:

“if the ghatwal of that place neglected to pay the rent to the Maharaja the door of the court was open for it.”

Exhibit 15 is the rubkari of the Commissioner of Bhagalpur by which the sale was confirmed. Exhibit 104 is a record of certain notes and orders passed in connection with the delivery of possession of the Kharagpur mahals and contains a list of parganas in respect of which the proclamation of sale and the writ of delivery of possession were issued. The thirteenth item in this list is pargana Handwe. Exhibit 143 is the sale deed executed by Bala Nath Sahu, one of the auction-purchasers, in respect of the two-annas share purchased by him in favour of Raja, Bidyanand Singh Bahadur who is described therein as the proprietor and zamindar of the fourteen-annas share of parganas Sahroi etc., mahals Kharagpur. Exhibit 151 is the petition of Raja Bidyanand for the mutation of his name in respect of the two-annas share in pargana Sahroi purchased by him from Bala Nath Sahu. Exhibit 153 is the report of the record-keeper regarding the revenue of the two-annas share with the order of the Collector, directing that the name of Bidyanand be mutated. Exhibit 23, which strictly speaking is not a document connected with the revenue sale, is the order of the Collector directing the name of Lilanand to be recorded in respect of Sahroi etc., mahals Kharagpur including pargana Handwe on removing the name of Bidyanand deceased in 1850. There can be no doubt on a perusal of these documents that the estate sold included pargana Handwe and the writ for delivery of possession purported to give possession of the entire mahalat Kharagpur including a pargana Handwe to the auction-purchasers.

According to the respondents the revenue sale must be regarded as having completely terminated all claims that the predecessors of the appellant may have had to the proprietorship of Handwe, particularly as no steps were taken by the Handwe Raj either in the revenue court under Regulation XI of 1822, which was the revenue sale law then in force, or in the civil court to have the sale set aside or to assert that their proprietary right was not affected thereby. We think, however, that in this matter the learned Counsel for the respondents is placing his case too high. We referred to section 29 of Regulation XI of 1822 when dealing with the question whether the respondents whose ancestors were the auction-purchasers of mahalat Kharagpur at the revenue sale of 1840 are bound by the judgments delivered in the litigation of 1810-1819. We need only state here that as we read that section we find nothing in it to justify the view that if the ghatwals of Handwe had any proprietary rights in pargana, Handwe prior to the revenue sale, such rights would come to an end in consequence of the revenue sale. It is to be remembered that in this case the appellant does not base her title upon any act of the “original engager or his representative” that is to say, of Raja Oadir Ali or his successors, but upon a direct grant made by the East India Company as representing the sovereign power in favour of her husband's ancestors Raia Subhao Singh and others. All that section 29 of Regulation XI of 1822 lays down is that as a result of the revenue sale the purchaser will acquire

“all the proprietary rights, and privileges which the engaging party possessed and exercised at the time of the settlement free from any accidents or incumbrances that may subsequently have been imposed or have supervened thereupon.”

It follows, therefore, that whatever status Raja Subhao Singh is held to have possessed at the time of the Permanent Settlement, the same status must have continued to be held by his descendants and it was not affected by the revenue sale. Further if the consequence of the inclusion of Handwe in the Kharagpur estate was to make Handwe a dependent taluk, that relationship between the two estates inter se must be deemed to have continued even after the revenue sale. What was the effect of the inclusion of Handwe in Kharagpur at the time of the Permanent Settlement is a question which we shall discuss later.

We now come to the proceedings taken by the Government for resumption of the ghatwali tenures of the Kharagpur estate. It will be necessary to give an account of these proceedings in some detail for it is one of the main contentions of the respondents that even if it be taken to have been established that Captain Browne's grant created a Government ghatwali, it became a Kharagpur ghatwali in consequence of an agreement made between the Government and the proprietor of the Kharagpur estate after the attempt to resume the tenure had failed.

In the year 1836 a special Deputy Collector, Mr. Travers, was directed by the Board of Revenue to investigate the question whether the Government had the right to make separate assessments of revenue on the ghatwali lands which had been included in the Permanent Settlement of the estate. Mr. Travers dismissed the claims of the Government in respect of the portion of Handwe which was then in the possession of the descendant of Subhao Singh and in respect also of Sahra Mahra, Chandan and Karmadiha, (which are parganas of Handwe which were not included in Captain Browne's grant to Subhao Singh but which were the subjects of other grants by that officer) in separate judgments delivered on the same day, the 29th of May 1836, (exhibits 8, 9, 0 and 11) on the ground that although the rents had been fixed by Captain Browne's grants they were afterwards included in the settlement of the Kharagpur mahals and were being paid as “shikmi” with the revenue of Kharagpur. The cases of Bishunpur (exhibit 18), Belguma Khurd (exhibit 17) and Beldaha (exhibit 49) were taken up separafely in 1841 by another officer and the decisions followed the decision in the Handwe case as these taluks had been comprised in the original Handwe grant (exhibit I). The claim of the Government to a separate assessment of revenue in the case of Jamuni Harnapur, originally Rani Sarbesari's ghatwali tenure, had been dismissed in the previous year (exhibit 16). The claim was, however, allowed in 1842 in respect of Kakwara, but in 1843 on an appeal by the proprietors of the Kharagpur estate the decision of the Deputy Collector was reversed by a special Commissioner for the reasons for which the claim had been rejected in the other cases. There were many other cases of the same character and in 98 of them the Government was successful. In these cases the ghatwali mahals were resumed, charged with revenue as separate estates and permanently settled with the ghatwals, the revenue being fixed in each case at half of the income of the properties Eleven of the cases appertained to tappa Dhamsain. It appears that the Special Commissioner's decision with regard to Kakwara was subsequently revised, for this ghatwali mahal was also resumed and assessed with revenue. The proprietors of the Kharagpur estate appealed to His Majesty in Council against the decision in one of the Dhamsain cases [Raja Leelanand Singh v. The Government of Bengal). The decision of this case shows that the contention of the Government was that before the enactment of Regulation I of 1793 the produce of the ghatwali lands has been appropriated by the zamindar to the maintenance of a police establishment; and that by the Regulation in consequence of the assumption by the Government of the charge of maintaining the police, the lands of the tenure became liable under clause (4) of section 8 to assessment of revenue in addition to the sum assessed on the zamindari at the Permanent Settlement, and that the sum so assessed was exclusive of the produce appropriated from these lands for the maintenance of police establishments. The tenure was ascertained to have been one of the many ghatwali tenures created by the zamindars of Kharagpur long before the assumption of the Dewani by the East India Company for the protection of the ghats from incursions of the lawless hill tribes and warlike aggression from outside the district. Their Lordships of the Judicial Committee found that the fixing of the revenue of the Kharagpur estate at the Permanent Settlement was a matter which had received great consideration and, therefore, the inclusion of the ghatwalis in the estate was not by inadvertence. The question whether the lands were or were not productive of revenue to the zamindar at that time was not considered to be material because the settlement included large tracts of unproductive land, but it was observed that even if weight were to be attached to that consideration the zamindar at least derived the benefit arising from the services of the ghatwals and enjoyed the valuable right of appointing persons to those offices. It was held that these tenures were not held free of rent for the purpose of the maintenance of a police establishment, but were lands which the zamindar permitted the tenants to hold at ja Reduced rent, and that therefore there was no force in the contention of the Government on which its claim was based. A report of Mr. Dickinson in 1795 showed that in the settlement of Kharagpur no allowance for a police force were made by the Government; and in 1813 the Collector of Bhagalpur reported that there was a class of ghatwals attached to the Kharagpur estate who paid stipulated rents for their lands and were under the obligation to protect the ghats and highways, to watch the passes and to prevent disturbances by mountaineers and highwaymen and that these ghatwals held their lands by virtue of sanads granted by the zamindar of Kharagpur except some who had received their grants from former authorities. He also reported that the ghatwals had no right of inheritance or proprietary interest in their lands but held the right to possess them as long as they complied with the conditions of their sanads, and that at the time of the Decennial Settlement these ghatwals were not treated as independent talukdars, no settlements were made with them but they were included in the settlements of the zamindar under whom their lands were held. The judgment refers to another report of the year 1816 in which it was stated that the ghatwals paid a fixed rent to the zamindar of Kharagpur and continued under his control, direction and subjection while the Raja was answerable for the rents of the entire estate. As throwing light on the status of the ghatwal vis a vis the Government and the zamindar with special reference to the contention of the Government that the ghatwal was a mere police officer, their Lordships quoted from the letter of the Collector of Bhagalpur in 1783 to Raja Qadir Ali, to which we have already referred, intimating that he should appoint another ghatwal or retain the ghat under his own control after the dismissal of Rani Sarbesari, the ghatwalin of Jamuni Harnapur. In the cases of Dhamsain as in the present case, reports of Collectors had been exhibited acknowledging the right of the Raja to appoint and dismiss ghatwals attached to the Kharagpur estate, which appointments and dismissals he generally, though not always, communicated to the Collector. It was held that the ghatwali tenures to which the case related were part of the estate of Kharagpur and were included in the settlement of that estate and covered by the jama assessed upon it. This case was decided in 1855.

A list (exhibit N) of the 98 ghatwali mahals which had been resumed and assessed to revenue was prepared in the year 1860. It appears from a letter of the Collector of Bhagalpur, dated the 21st of August, 1862, (exhibit 174) that after the decision of the Judicial Committee in the Dhamsain case, Raja Leelanand Singh proceeded to sue for enhancement of the rents of the gnatwais many of whom were admitting his claim while others were contesting it on the ground that until the Government should declare that their services were no longer required, nothing in excess of the fixed rents specified in the original sanads could be demanded from them. The Collector considered that before this defence could be taken successfully it would be necessary for the Government to establisn its right to the maintenance of the ghatwais and to obtain a decision from the courts that the zamindar could not without the permission of the Government dispense with the services of the ghatwals and increase the rent formerly fixed. This opinion was given with reference to the view taken by the Legal Remembrancer that if the question should arise whether the zamindar had a right to reassess the ghatwali lands the claim might be resisted by relying on the right of the State to the services of the ghatwals, a right which the resumption proceedings had not touched. It was apparently apprehended that the zamindar might base his claim for mesne profits on higher rates of rents than he had hitherto received from the ghatwals. The Collector went on to observe that he could not find, and the ghatwals could not point to, any judgment or document proving that the Government possessed any such right. He gathered from the decision of the Judicial Committee that the power to appoint and dismiss ghatwals in the Kharagpur estate and to alter their rents was vested in the Raja and that whenever “applications” on behalf of the Government for retention of ghatwals were made they were in the shape of courteous requests and not commands or assertion of a right. It did not appear to him that the Rajas had been reporting any such proceedings to the Collector and he therefore conceived that the Rajas supposed that they were permitted to do as they pleased, an opinion which, he stated, no Government official had disputed. Although there was no proof of the right of the Government to compel the maintenance of ghatwals within the Kharagpur estate, he presumed that if Government had possessed the right before the resumption proceedings it still possessed that right as all those proceedings had been quashed by the special Commissioner in 1860 in accordance with the decision in the Dhamsain case. With regard to the exercise by the Government of a right to interfere he stated, quoting from the judgment of the Judicial Committee:—

“The only period, during which such appointment appears to have been made at the instance or under the orders of Government Officers, was that, when “some years before the Permanent Settlement” in consequence of disturbances which had taken place in the country during the time of Kadir Ali's father, the Government had found it necessary to interfere with a military force, and having displaced the then Raja and restored tranquillity had placed the zamindary under the charge of one of their officers. Mr. Augustus Cleveland, who had the management of it up to the year 1781 about which time Kadir Ali (his father having died) was put into possession of the Raj”.

With reference to that occasion he observed:

“Even the dismissal of Rani Sarbesari would appear to have occurred during the period when Government for a while usurped the place of the zamindar.”

He was very doubtful whether Government could assert the right to insist upon the maintenance of ghatwals in the estate and considered that the Government had committed an error of some magnitude when on renouncing its claim to resumption it did not formally call upon the zamindar to retain the ghatwali establishment and he suggested that this might still be done. He supposed that at the time of the resumption Government had tacitly declared that ghatwals were no longer needed, for in resuming their tenures it dispensed with their services and on the relinquishment of the tenures to the zamindar in 1860 it did not call for a revival of the old system. He referred also to a report of one of the special Deputy Collectors in 1838 to the effect that the Government had no need of their services. His conclusion was that an assertion of the right of the Government to the ghatwals' service was the only weapon which could avert the payment of mesne profits amounting to 7 lakhs of rupees.

The decision of the Government with regard to this matter is contained in a letter, dated the 12th of January, 1863, (exhibit 173) from the Secretary, to the Government addressed to the Commissioner of the Bhagalpur Division. It is stated in his letter that the duties which according to the decisions of the Privy Council the ghatwals of the Kharagpur estate were bound by their tenures to perform ought to be still required of the ghatwals and a direction was given to the Commissioner to call upon the zamindar to appoint ghatwals in every place in the estate in which they had been established. Any attempt on the part of the zamindar to cripple the resources of any ghatwal and prevent his fulfilling his duties properly was to be resisted. The Government declared that so long as and whenever these ghatwals might be required to perform the public duty they owed to the State, the zamindar could neither resume their tenures nor increase their rents. The zamindar was to be instructed to appoint a ghatwal whenever the office was vacant and to see that the establishment of each ghatwal was maintained in a state of efficiency and cautioned against enhancing the rent of any ghatwal from whom public service was required by the Magistrate and who was bound by his tenure to render it. Then follows in paragraph 6 a proposal to be made to the zamindari of a scheme for the relinquishment by Government of the ghatwals' services. It is in these terms:

“But it must be admitted that the ghatwals…… are of little value as police or auxiliaries to the police and if, therefore, the zamindar is willing to compound for their service by a fixed annual payment the Lieutenant-Governor would be prepared to release the ghatwals from the obligation they owe to the State and to replace them by a more reliable agency and one more immediately and directly under the control of the Government. The zamindar would then be at liberty to proceed against the ghatwals either for the resumption of their lands or the enhancement of their rents without any hinderance on the part of the Government. But unless he undertakes to furnish to Government with the means of providing an adequate Police Force in lieu of the ghatwals he cannot be allowed to appropriate their lands or to take from them in the shape of increased rent the funds which are needed for the preservation the peace and for the prevention of crime.”

In pursuance of this proposal the Commissioner requested an Assistant Commissioner on the 19th of February, 1863, (exhibit G), to state whether he had called upon the ghatwals to render the service which their sanads imposed, and to furnish information with regard to the obligations of the ghatwals. The Assistant Commissioner replied that he had no papers in his office from which the information could be procured, but he was calling upon the Raja of Kharagpur to supply a list of all the ghatwali tenures and the names of ghatwals within the division; and he asked for a similar list to enable him to check the information which the zamindar would supply (exhibit H). This information, if it was supplied, is not on the record. The Commissioner asked the Collector of Bhagalpur to Submit a list of all the Kharagpur ghatwali tenures showing in which of the three districts of the Santa Parganas, Bhagalpur and Monghyr each was situated (exhibit F). The list supplied (exhibit F) was substantially a reproduction of the list of resumed ghatwalis which had been prepared in 1860 (exhibit N), rearranged according to the districts in which they were situated. It does not include Handwe or any of the tenures in respect of which the Government's claim for resumption had been dismissed in the proceedings between the years 1838 and 1843. The proprietor of Kharagpur accepted the proposal of the Government made in the letter of the 12th of January, 1863, (exhibit 173) to compound with the Government for the ghatwali services and on the 9th November, 1863, received a parwana. (exhibit 31) from the Collector stating:—

“Under paragraph 6 of letter no. 321, dated the 12th January 1863” (the paragraph we have quoted) “the Government has waived all its claim and rights to taking police service through the ghatwals within the zamindari of pargana Saroi, etc., Kharagpur mahals, on your undertaking to pay Rs. 10,000 in Company's coin to Government for ever, year after year. It is therefore ordered that this sum of Rs. 10,000 the jama agreed upon by you, will be added to the revenue entered in the former kabuliyat, dated the 5th of January, 1796, executed at the time of the decennial settlement confirming and keeping intact all the terms laid down therein and thus the entire amount of revenue of Kharagpur mahals is assessed and fixed at Rs. 72,553-6-0 for ever and will remain assessed and fixed for ever……………………… In case of default of payment of revenue the Collector is and will be competent to put to sale the entire zamindari of Kharagpur mahals under the law that may be in force at the time of the sale.”

An acknowledgment of this alteration of the Permanent Settlement expressed in the same terms as the parwana was executed by Raja Leelanand Singh on the same day (exhibit 112). The parwana and acknowledgment cover the whole of the estate settled with the Raja in 1796, the pargana Saroi having been specifically mentioned only because it is the first named in the list of the parganas enumerated in that settlement.

Before the parwana was issued the ghatwals whose tenures had been resumed and afterwards restored’ to the estate complained to the Government that their rights were being sold to Raja Leelanand Singh. The Commissioner in his letter to the Government (exhibit Y) dated the 16th May, 1863, reported on the complaint and stated what action he had taken after the Government had given the zamindar the option to compound “for the services he was bound to render to the State through and by the ghatwals” by a fixed annual money payment. He had directed the District Magistrate of his division to call upon the ghatwals within their jurisdiction whose tenures had been released by the Government in accordance with the decision of the case of Raja Leelanand Singh v. The Government of Bengal (which had been taken to govern all the cases) to render the public services which their sanads imposed. He had also directed the Magistrates to summon the ghatwals examine their sanads with a view to ascertaining what their obligations were and explain to them that so long as the Government was demanding service from them they were not liable to pay enhanced rents. When, however, Raja Leelanand Singh agreed to pay Rs. 10,000 yearly, “in lieu of police services” he revoked the instructions which he had given to the Magistrates. He considered that the ghatwals' complaint was misconceived. In the view he took of the settlement with Raja Leelanand Singh, Government was not about to take away their rights in ghatwali lands and make them over to the zamindar. It appeared to him that all that the Government was doing was to waive its right to a troublesome and useless service in consideration of the payment which would enable it to obtain service valuable to itself and to the public.

It may be mentioned here that the judgment of the Privy Council in Thakur Munorunjan Singh v. Raja Leelanand Singh as to the apportionment between the zamindar and the ghatwals of the mesne profits recoverable from the Government during the period of the resumption shows that the ghatwali services were regarded as public services, for the zamindar was found to be entitled only to the amount of the rents and thus received no compensation for the loss of the services.

It appears that after the composition with the Government for the ghatwali services Raja Leelanand Singh began to institute suits against the holders of ghatwali tenures for possession of the properties on the ground that the services in consideration of which the properties were Held were no longer required. The suits of this character which were contested, including a suit against the ghatwals of Kakwara, ware decided against the Raja, and upon appeal to His Majesty in Council the decisions were confirmed in 1873 [Raja Leelanand Singh v. Thakur Mnncrunjan Singh]. It was held that notwithstanding the agreement between the Government and the Raja by which the performance of the ghatwali service on the part of the Raja was dispensed with, the Raja could not resume the land so long as the ghatwals were willing and able to perform the services.

Having failed to recover possession of the Kakwara ghatwali the Raja instituted a suit against the ghatwals for enhancement of their rent [Leelanand Singh v. Thakur Munorunjan Singh] but was again unsuccessful. It was held that he had no right to enforce payment of enhanced rent for the services that were no longer required if the ghatwals were able and willing to perform those services. It was also held that the ghatwals were dependent talukdars within the meaning of Regulation VIII of 1793 and were protected from enhancement by section 61 of that Regulation.

Mr. Manuk contends that in the agreement between the Government and Raja Leelanand Singh regarding the composition for ghatwali services we have an instance of something done by the Government of the kind which Lord Sumner contemplated when he observed in Sataya Narain Singh v. Satya Nimnjan Chakravarti—

“To terminate the ghatwali character of the lands, it seems to their Lordships that it is necessary to find something done or omitted to be done on the part of the Government, as the grantor, which would have the legal effect of a surrender and regrant of the lands on new terms, or, at any rate, of a release of the right to appoint the ghatwal and call for the performance of the services”.

Mr. Manuk's argument assumes that the arrangement embraced the ghatwals of the Handwe Raj, the; basis for the assumption being that the agreement refers to “the ghatwals” within the Kharagpur estate, and so, it is contended, includes all of them. But the reference to the ghatwals of the estate is not entirely without qualification. The service compounded for was police service that the Government had claimed a right to take through the ghatwals, that is to say, the police service which the zamindar was himself liable to render by means of that agency. The agreement as it seems to us was in respect of the service obligations which the zamindar owed to the Government and not the obligations which a ghatwal owed directly to the Government. If therefore Handwe was a Government ghatwali it was not affected by the agreement. No doubt paragraph 6 of the letter of the Government specifically cited in the agreement speaks of the release of the ghatwals from the obligations which they owed to the State but it seems clear enough from the letter read as a whole that the obligations referred to are the police duties for which responsibility lay with the zamindar. As we have shown, it was the decision of the case of Raja Leelanand Singh v. The Government of Bengal which made the Government aware of the existence of the rights which they then proceeded to take steps to enforce but which they subsequently relinquished in consideration of the payment of additional revenue. That case, however, was the case of a ghatwali which is admitted not to be a Government ghatwali and such was the position also in respect of all the 98 resumed ghatwali tenures. The loss to the Government by the decision of that case was the loss of the revenue with which those 98 tenures had been separately charged, and this, it may be supposed, was the loss for which the Government was trying to get some compensation. The letters of which we have given the purport show that the Government had in mind the cases of the tenures that had been resumed and afterwards released. Only the ghatwals of those tenures were according to the Commissioner's instruction to the District Magistrates to be called upon to render service, and apparently only they protested to the Commissioner. The Commissioner understood paragraph 6 of the Government letter to refer to services which the zamindar was bound to render to the State through the ghatwals. He had called for a list of all the ghatwali tenures but he was evidently understood to be requiring a list of the resumed tenures, for a list only of those was supplied. It seems improbable that if the omission of an estate of the magnitude of Handwe was due to a misunderstanding of the Commissioner's order the omission would have remained undetected especially in view of the fact that the proprietor was called upon to supply a list of his own. If Handwe was included in the proprietor's list one would expect that the discrepancy would have been reconciled. If on the other hand it was not so included the omission would show that the composition did not include services renderable by the Handwe ghatwals we consider, therefore, that the agreement between the Government and Raja Leelanand Singh did not in any way alter the character of the appellant's tenure.

We shall now give an account of the history of some of the component parts of the Handwe grant and also of a number of ghatwalis of the Kharagpur estate in respect of which documents have been exhibited by the plaintiffs.

The appellant is not in possession of all the taluks of Handwe covered by Captain Browne's grant a list of which is given in the contemporaneous daul (exhibit 1). We have already stated that the daul shows how the parcels of land comprised in the grant, each with a separate assessment of rent, were distributed among thirteen ghatwals. It appears from Mr. Dickinson's pargana of 1794 (exhibit J) that Purandar Singh had inherited the taluks of his uncle Raja Subhao Singh and of Udit Singh and that he had acquired the shares of Gopal Singh, when Gopal Singh owing to his inability to pay the rent surrendered his share to Purandar Singh, receiving maintenance in lieu of it. At a later date a descendant of Subhao Singh acquired Bishunpur which according to the daul was the share of Nihal Naik. The date of the acquisition is not known, but it was earlier than 1841 for in the judgment of the resumption proceedings of that year regarding Bishunpur (exhibit 18) Raja Madho Singh, the son of Jhabban Singh, was found to be in possession of it. Bishunpur, however, is not one of the properties included in the plaint either originally or after it was amended and it is not known in whose possession it is now. The Raja's statement of the year 1787 regarding ghatwali villages (exhibit 137) indicates that all except ten bighas of Bishunpur had been retained khas by the Raja and that the ten bighas had been settled with the successor of the original grantee.

The defendant is in possession of the share which the daul gave to Kesri Singh, but the record contains no information as to how her ancestors obtained it. We know that it was in the possession of Udit Narayan Singh, the grandson of Jhabban Singh, in 1879 for in that year it was included in the properties in respect of which he applied for mutation of his name under the Land Registration Act (vide exhibit Q).

The properties of the other original grantees seem to have been treated by all the parties concerned as ghatwali tenures subordinate to the Kharagpur estate. There are documents which show what happened to the shares which had been allotted to Babu Lal Singh, Bishun Singh, Baijnath Singh, Fateh Singh and Udesi Panda. Taluk Kesari, which fell to the share of Babu Lal Singh, a member of Subhao's family, was sold in 1902 (exhibit 54) in execution of a civil court decree and in 1912 the proprietors of the Kharagpur estate instituted a suit against the purchasers of the tenure for recovery of possession of it on the ground that being a ghatwali it was inalienable without the proprietors' consent. By a compromise the proprietors recognised the transfer in consideration of a payment to them of a sum of nearly Rs. 12,000, agreeing that thereafter it would be treated as a permanent transferable istimrari mukarrari tenure. Khairwa also, which the daul shows to have been the share of Bishun Singh—another member of Subhao's family, was sold in execution of a decree in 1857 (exhibit 27). Belguma Khurd allotted to Udesi Panda by the daul was acquired by Subhao Singh's heir, as we have already stated, but it is not now claimed to be a part of the Handwe ghatwali of the appellant. Beldiha was the share allotted to Fateh Singh, the brother of Bishun and Udit. In 1817 Fateh's grandson presented a petition (exhibit 140) to the Collector stating that with the approval of Raja Qadir Ali his father had been put in possession of the property and complaining that Jhabban Singh was instigating his father and his younger brother not to pay the rent to the Raja of Kharagpur. He also asserted that he possessed a sanad which had been granted by Qadir Ali. It appears from Mr. McPherson's report on the Survey and Settlement Operations in the Santal Parganas that Beldiha and also taluk Eksingha allotted by the daul to Harlal Datt had been sold in execution of decrees. A subordinate or darmukarrari interest of village Kasbain one of the taluks allotted to Subhao Singh, which interest therefore must have been created by an ancestor of the defendant, was sold in execution of a decree in 1920 (exhibit 70). The darmukarraridars were Kayasthas and the purchasers were Marwaris.

Thus the respondents have been able to show that interests which were covered by the original grant made by Captain Browne (exhibit I) have been treated by the proprietors of, the estate and the ghatwals concerned as subordinate tenures of the estate, and it is a fact also that the rents payable in respect of those interests have been deducted from the rent fixed by Captain Browne.

The daul is described as being a statement of settlement with istimrari mukarraridars of the entire pargana Handwe, but in fact it did not include the whole pargana. Four taluks, Kamardiha, Sahra Mahra, Jhopra and Karman, which are within the pargana were omitted from the grant. There are documents which show that grants of these taluks also were made by Captain Browne. The ghatwal of Kamardiha stated in a petition to the Collector in 1817 (exhibit 99) that after the zamindari of Kharagpur had been restored to Qadir Ali, he and all the other ghatwals who had obtained pattas from Captain Browne presented themselves to the Eaja who, he said, had always had the power of granting pattas and dismissing and appointing ghatwals, and obtained fresh pattas from him on reduced or increased jamas fixed in accordance with the income of the tenures. The judgment of the resumption proceedings regarding Kamardiha (exhibit 11) shows that a copy was produced of a sanad granted by Qadir Ali to the ghatwal of this taluk, subsequent to the sanad of Captain Browne. It appears from a report of the Collector to a criminal court (exhibit 154) that his son also obtained a sanad from the Raja by which the rent was enhanced and that in 1842 the ghatwal made an application, which was disallowed, to have the property separated from Kharagpur. A judgment of an Assistant Commissioner in 1858 (exhibit 28) refers to a fresh settlement of the property that had been made in 1855 with a woman, and contains a statement that on her failure to pay the rent the proprietor had resumed the tenures.

The remaining taluks of Handwe, namely, Sahra Mahra, Jhopra and Karman, seen) to have been the subject of a single grant by Captain Browne. It is stated in a report made by the Collector's record keeper (exhibit 102) that Sahra Mahra and Jhopra were granted as mukarrari by Captain Browne in 1777 and that after the death (of the grantee his successor obtained a fresh sanad from Qadir Ali by which the rent was increased. The decisions in 1854 K (exhibits 24 and 25) of suits brought by the plaintiffs' ancestors against the descendant of this ghatwal show that Captain Browne's sanad included Karman and so also did the later sanad of Qadir Ali. The suits were for recovery of possession of the taluks on the ground that after the auction-purchasers had acquired the Kharagpur estate the defendants did not appear before them and were not complying with the terms of their sanad. The suits were decreed and the proprietors of the estate obtained possession of the properties.

The Kharagpur ghatwalis outside the pargana of Handwe in respect of which evidence has been given are those of Jamuni Harnapar, Kakwara, Chandan and Chandwe Passae.

Jamuni Harnapar was a larger property consisting of 110 villages and furnishing a force of 500 men as compared with 121 villages and 307 men in the case of the Handwe grant. The purchasers of the Kharagpur estate stated in the resumption proceedings relating to this property (exhibit 16) that the grant had been made by Captain Browne to Rani Sarbesari and that in 1783 by order of the Governor-General in Council she was deprived of her zamindari, which was pargana Sultananbad, and also of the ghatwali which Qadir Ali was directed to settle with someone else. The settlement record (exhibit E2) describes Jamuni Harnapar as an istimrari mukarrari tenure and transferable and shows it to be in possession of persons belonging to the Bania caste.

The purport of Captain Browne's sanad of the year 1777, in respect of Kakwara is given in the case of Munorunjan Singh v. Raja Leelanand Singh. Like the sanad in the present case it was addressed to persons in the character of ghatwals and was taken to have been rather the confirmation of an existing tenure than the creation of a new one. It described the tenure as mukarrari istimrari on a stated jama besides rasurn akrajat, etc. At about the time of the Permanent Settlement a grant in almost the same terms was made to the ghatwal by Qadir Ali. It was not disputed in that case that it was a ghatwali tenure of the Kharagpur estate although the proprietors' suit for eviction of the ghatwal failed for other reasons. In the case of Leelanand Singh v. Munorunjan Singhi it was held that the ghatwali was a dependent taluk the rent of which the proprietors had not the right to enhance. A copy of the sanad (exhibit 84) purporting to have been granted by Qadir Ali to the ghatwal of Kakwara in the year 1780 had been exhibited in that case.

Pargana Chandan is stated in the judgment of the resumption proceedings (exhibit 10) relating to it to have been granted by Captain Browne in 1777 and to have been regranted to the successors of the original ghatwals by Raja Qadir Ali in 1207 A.H on a reduced rent, and it is stated in the report of Mr. Ward (exhibit 7a) that the subsequent holder was also installed by the Raja. In the case of Jagmohan Singh v. Raja Neelanand Singh it was held in 1857 that the tenure was liable to be resumed by the proprietor either on the dismissal of the ghatwal for neglect of duty or when the performance of the service for which the tenure was created ceased to be necessary. The proprietor obtained possession of the tenure in consequence of this decision, and it is now an ordinary mukarrari tenure of other persons.

An account, of the ghatwali of Chandwe Passae also called Lachmipur is given in Captain Browne's “India Tracts” to which we may briefly refer once more. When Muzaffar Ali rebelled against the Moghul Government Lachman Deo, from which Lachmipur derived its name, refused to assist him and after an attempt, by Muzaffar Ali to coerce him had failed, he established his independence. He was succeeded in 1755 by his adopted son Jagarnath Deo. Mir Kasim, the Nawab of Murshidabad, after imprisoning Muzaffar Ali in 1761 or 1762 and sending an amil to collect rents failed to subjugate Jagarnath but persuaded him to agree to pay tribute to the Government of a larger amount than he had paid to Muzaffar Ali. Eventually he was subdued by Captain Brooke whose attempt to break the feudal system then prevailing caused an insurrection of ghatwals under the leadership of Jagarnath Deo. Captain Browne reduced him to submission and on Captain Browne's recommendation his properties were given to his son in 1776 by a sanad of the Governor-General in Council fixing a revenue of Rs. 7,291 exclusive of zamindari rasum, etc. In 1805 Qadir Ali brought a suit in the zilla court for recovery of the zamindari rasum. That ghatwal pleaded in his defence that his tenure was not dependent on the Raja's zamindari but was held directly under the Government by virtue of the Governor-General's sanad. He admitted having executed an agreement binding himself to pay rasum to the Raja but alleged that it had been obtained from him by forces. The zilla Judge decreed the suit and the decree was affirmed on appeal by the Provincial Court of Murshidabad and again by the Sadar Dewani Adalat [Rup Narain Deo v. Raja Qadir Ali]. The latter Court, however, advised the ghatwal to apply to the Board of Revenue for separation of the pargana from Kharagpur which the Court recommended. The Court took the view that the ghatwal's tenure was Undoubtedly separable from the zamindari of the Raja under section 4 of Regulation VIII of 1793 which directed the making of a settlement with the actual proprietors of the soil however designated. In accordance with this recommendation the separation was afterwards effected. It may be noticed here that in the written statement, paragraph 22, the defendant submitted that this pargana was similar to pargana Handwe and that Captain Browne (in point of fact the Governor-General in the case of Lachmipur) had granted spnads to the proprietors of both the parganas in similar terms. In the suit of 1810 Jhabban Singh also claimed to possess the same status as that which had been conferred on the ghatwal of Lachmipur.

Some important documents which still remain to be dealt with may now be classed under separate heads.

Documents relating to certain statements made on behalf of or by Raja Udit Narayan Singh, the grandson of Jhabban Singh.

It appears that after the death of Madho Singh (son of Jhabban Singh) when Udit Narayan Singh was still a minor there was a proposal to place the minor's estate under the charge of the Court of Wards, but his mother objected to the estate being taken out of her hands on several grounds including the ground that as the estate did not pay revenue direct to Government the Court of Wards could not take charge of it under Regulation I of 1800. The Commissioner, however, rejected this petition by his order, dated the 4th April, 1857 (exhibit 26). This document is relied upon on behalf of the respondents as containing an admission on the part of Udit Narayan's mother acting as his guardian that the property was subordinate to Kharagpur. The statement cannot, in our opinion, be so construed. It amounted merely to an assertion of the undisputed fact that the revenue was not being paid direct into the Government Treasury. As soon as that fact was established the Regulation became strictly inapplicable whether the minor had proprietary rights in the property or not.

The documents of this class which may be considered next are exhibit 29 which is a judgment of the Sadar Amin of Bhagalpur in a suit for possession instituted in 1801 and exhibit X which is the judgment of the court of appeal in the same suit. It appears that there was a dispute as to whether certain lands of taluk Sarmi were in possession of Udit Narayan or of one Karu Manjhi who professed to have 1 taken settlement of them from Raja Leelanand who, as we have seen, had purchased the Kharagpur estate at the revenue sale. The land was attached by the criminal court, but subsequently the attachment was withdrawn. A suit was then brought by Raja Leelanand for possession of the land on the ground that it was included in his zamindari and that the possession of Karu Manjhi was tantamount to his own possession. The Handwe estates being then under the Court of Wards, the Collector contested the suit on behalf of the ward and while admitting that Handwe was a mukarrari ghatwali under the Kharagpur Raj, resisted the claim of Raja Leelanand on the ground that the lands appertained to Handwe. The trial court dismissed the suit on that ground and the decision was upheld on appeal.

The respondents rely upon exhibit 29, and the learned Subordinate Judge seems to consider that they are entitled to do so, on account of the alleged admission of the Collector regarding the proprietary rights of Raja Leelanand. It appears to us, however, that little weight attaches to it because in the first place the exact words in which the admission was made by the Collector are not before us and in the second place the balance of authority seems to be in favour of the view that an admission made by a guardian of a ward or by the Collector as an officer of the Court of Wards will not necessarily bind the minor [see Banwarilal Singh v. Dwarkanath Missir].

Another document which may be mentioned under this head is exhibit Q. This was an application made in 1879 by Raja Udit Narayan Singh to the Collector praying that his name might be registered in the Collectorate on his succession to his father's estate. It appears from this petition that a former application had been rejected on the ground that the Land Registration Act contained no provision for the registration of mukarrari tenures. In this second application Udit Narayan asserted that he possessed a zamindari right and referred to the fact that his ancestors had obtained settlement not from the zamindar but directly from the Government. The Collector thereupon passed the following order:—

“The whole of the kaifiyat (remarks) contained in Register mukarrari to be entered opposite to Handwe mahalat Kurruckpur with the name of the present proprietor in lieu of the old ones.”

Accordingly in exhibit T, which is a general register maintained under section 2 of Act XLVIII of 1793 of estates paying revenue to the Government, a note was made that under the order of the Collector the remarks entered in the column of remarks in the former mukarrari register (exhibit U) were exactly reproduced. The entry concludes with the following remarks:—

“Now on a reference to the judgments of the District Court, the Provincial Court, etc., as also the mukarrari register, the name of Raja Udit Narain Singh, aforesaid has been recorded in respect of the istimrari mukarrari zamindari in pargana Handwe to which the appellant's title had been determined on the expunction of the names of Raja Subhao Singh, Raja Purandar Singh…………………”

Both exhibits Q and T are strongly relied upon by the appellant as proof of an instance in which the assertion by the holder of the Handwe as to his proprietary title was in some measure given effect to. Exception, however, is taken by the respondents to the concluding portion of the entry on the ground that there is nothing in the order of the Collector to authorize it. The entry, however, is one made in an old official record and we do not think it would be safe to hold that it was made without authority. In any event the entry cannot carry greater weight than the decision to which it refers.

II. Documents relating to certain land acquisition proceedings which took place between 1863 and 1867.

These documents are exhibits 30, 32 to 39. Land included in Handwe while the property was in the management of the Court of. Wards was acquired by the Government for some public purpose and it was found that no notice of the proceedings had been served upon the proprietor of the Kharagpur estate. Referring to this omission the Deputy Commissioner of the Santal Parganas stated that the property for which the land was to be acquired was a part of the mukarrari tenure of Raja Udit Narayan Singh held under Raja Leelanand Singh who was paying the rent to the Government. Raja Leelanand Singh is described in this letter (exhibit 32) as the “superior proprietor” of the land. In the same connection the Commissioner informed the Collector of Bhagaipur (exhibit 30) that as the papers in the Collector's office showed Raja Leelanand Singh to be the zamindar and Udit Narayan Singh to be “a mere istimraridar”, notice ought to have been issued to the former. In exhibit 33 which is a letter from the Commissioner of Bhagaipur to the Collector of that district it is stated that no remission of rent could be allowed by the Government to the minor Udit Narayan Singh as the pargana was held by him under a mukarrari lease from the zamindar who paid a jama to the Government. The statement in this document that the mukarrari lease was held from the zamindar is inaccurate. Both in exhibit 33 and exhibit 35 (the latter being a letter addressed by the Collector of Bhagaipur to the Deputy Commissioner of the Santal Parganas) Raja Leelanand Singh is described as the superior landlord of the estate. Exhibits 34 and 36 to 39 do not call for any special comment, and it; may be briefly stated that eventually compensation was divided between the zamindar of Kharagpur and the ghatwal. The documents are further evidence of recognition by the Government of Raja Leelanand's proprietary rights in Handwe.

III. Documents relatedting to the settlement of Mr. Wood in 1873 and to the Settlement of Mr. McPherson in 1898-1907.

In exhibit 40 which is the “rough” settlement report of Mr. Wood, Raja Leelanand Singh is described as the superior landlord of Udit Narayan who was then the holder of Handwe. The record-of-rights prepared by Mr. Wood in respect of some of the villages appertaining to Handwe has been filed by both parties [see exhibits 5 to 5(l) and Z(8), Z(10), Z(11), Z(27) and Z(36)]. The appellant relies upon these records as showing that the name of Udit Narayan Singh was recorded in the proprietary column in the khewat. On the other hand it is pointed out by the respondents that Udit Narayan Singh was recorded as the holder of an istimrari mukarrari and it is stated that as no separate khewats were prepared at the time for proprietors and tenure-holders and the practice was to record only the rent receiver whether proprietor or tenure-holder under the generic title malik, no special significance should be attached to the entry of Udit Narayan's name in the proprietary column. Mr. McPherson's record-of-rights of 1898-1907 was prepared on the same lines as Mr. Wood's settlement record, and there again we find the name of the holder of the Handwe properties (at that time Rani Kesho-bati) recorded in the proprietary column and the Rani herself described as istimrari mukarraridar [see exhibits Z(13) to Z(17); Z(37) to Z(40) and Z(62)]. Both, these records were placed before Mr. Davies, the officer in charge of the settlement in the years 1923-1924, and in his opinion “the meaning and effect of the entry of the Handwe estate in the published record of the previous settlement is that pargana Handwe is an istimrari mukarrari tenure under the Kharagpur estate”. It seems to us that whatever designation may have been adopted by Mr. Wood or Mr. McPherson to describe the status of the ghatwals of Handwe in relation to the zamindar of Kharagpur, there is no indication in the record prepared by them that the former did not possess any proprietary rights in the properties which were in their possession. At one place Mr. Wood stated as to the Handwe taluk, which he described as the estate of Raja Udit Narayan Singh, that Raja Leelanand Singh could not in any way interfere with the management of it nor could he oust Raja Udit Narayan Singh except in execution of a decree for arrears of rent.

IV. We may here deal with another important group of documents which relate to a number of rent suits brought from time to time by the proprietors of Kharagpur against the holders of Handwe between 1839 and the period shortly preceding the institution of the present suits. Exhibit 13 which is the judgment given in the earliest rent suit contains a list of the documents which were filed by the parties in the suit and it shows that after a feeble insinuation that the plaintiffs were entitled to certain zamindari dues from the defendants, the claim was ultimately given up and was confined, to Rs. 2,040, that is to say (leaving out of account annas and gandas), the amount Rs. 2,818 mentioned in the earliest grant in favour of Handwe minus Rs. 4.46 which represented the sair rent (abolished by Regulation XXVII of 1793) and Rs. 33.1 odd, the sum originally payable in respect of four taluks of Handwe which by this time had passed out of the possession of Subhao Singh's descendants. Documents have also been produced in connection with a large number of rent suits instituted between 1839 and the date of the institution of the present suits and they consist of either judgments or decrees or plaints or extracts from papers relating to execution proceedings. They show among other things another variation of the former rent payable by the Handwe estate but this admittedly was due to the addition of a compensatory allowance for substitution of the present currency for the Company's coins bringing the amount to Rs. 2,171. It may be mentioned here that the fact that the sum annually payable was varied from time to time furnishes an argument to the respondents in favour of their contention that the amount payable is not revenue, which must be one fixed and immutable sum, but rent which the landlord has allowed to be split up as occasion arose.

An argument of far greater consequence which is advanced on behalf of the respondents relates to the question of res judicata. It is strenuously argued on behalf of the respondents that these decisions conclude the controversy on the following questions:—

(1) Whether the relationship of landlord and tenant exists between the parties.

(2) Whether the amount payable is rent or revenue.

(3) Whether the holder of Handwe has any proprietary interests at all in the property.

On a consideration of a number of authorities, which were cited in this Court also, the learned Subordinate Judge has held that the decisions in the rent suits do not constitute res judicata between the parties, but they estop the appellant from asserting that she is not a tenant of the plaintiffs. It is unnecessary to enter into this Somewhat academic controversy as regards thedistinction between res judicata and estoppel and no useful purpose would be served by reviewing the authorities cited before us. It is sufficient for us to record our opinion that the decisions in the rent suits would constitute res judicata so far as the liability of the defendant to pay an annual sum is concerned, and perhaps also as to the amount recoverable from the defendant. We do not, however, consider that the decrees in the rent suits standing by themselves are conclusive on the question whether the holders of Handwe possess the status of a proprietor or not. The question who was the proprietor of Handwe does not appear to have been specifically raised in any of the rent suits and it need not have been raised as the general liability to pay a fixed sum was not denied by the defendants in those suits.

V. Certain documents which may be classed as miscellaneous owing to the variety of their contents and description may be briefly referred to. Among these are copies of Collector's Register D of estates, land revenue chalans, extracts from rokar or account books kept by the plaintiffs and entries in certain village papers called laggits. They are of such little importance that neither party relies upon them. A few other documents which are slightly more important may, however, be mentioned. Exhibit D is a letter dated the 25th October, 1880, addressed by the Deputy Commissioner of the Santal Parganas to the Commissioner of the Bhagalpur Division in which the following statement occurs:—

“The whole of the great Tappa Handwe, for example, is an un-resumed ghatwali of the Kharagpur estate.”

Exhibit 58 is a memorandum from the Assistant Commissioner to the Collector of Bhagalpur, dated the 10th July, 1907, stating that

“the rent payable to Raja Leelanand for the mukarrari tenure of pargana Handwe was in Company's rupees”.

Exhibit 161 is a petition filed by Rani Keshobati Kuer, widow of Udit Narayan Singh, in 1910 to the Senior Member of the Board of Revenue in which she stated in paragraph 15 that the Handwe estate with the exception of a small village was an istimrari mukarrari tenure included in the Kharagpur estate with a fixed jama and therefore its management could not be placed under the Court of Wards under section 22 of Act II of 1863. This document does not call for separate comment as we have already referred to a similar objection made by the mother of Udit Narayan in 1857 (vide exhibit 26).

Exhibit 65 is an order-sheet of a cess re-valuation proceeding, of 1914-1915 in which taluk Kendua of the Handwe estate is described as a tenure.

We have considered all the important documents which, were referred to by the parties in the course of their argument and we might now proceed to record our conclusions on the main issues in the case. As, however, one of these issues is as to whether Handwe is a Government ghatwali or a ghatwali under the Kharagpur estate we may appropriately preface our decision on this issue with a brief account of the nature and incidents of ghatwali tenures generally and of two classes of ghatwali tenures particularly. A lengthy discussion of the topic is not necessary as it has been the subject of many reported decisions of the Calcutta High Court and of this Court and has been fully dealt with in the judgments of the Privy Council delivered by Lord Kingsdown in Raja Leelanand Singh v. The Government of Bengal and by Lord Sumner in Satya Narayan Singh v. Satya Niranjan Chakravarti. Literally a ghatwal means a guard of the passes and the term “ghatwali tenure” was applied by the Moghuls to lands, assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredations of lawless hill tribes. These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur and the Santal Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different places. In some cases they were owners of large estates, some of these estates being more or less of the nature of semi-military colonies. For example, it is stated in Phillip's Land Tenures of Lower Bengal that two-thirds of Birbhum were originally granted by Mir Jafar free of revenue to an Afghan or Patban named Asadullah and his tribe on condition of his guarding the frontier against the Hindus of Jharcund. There were also a number of inferior ghatwals who had small and specific portions of land assigned to them for their maintenance like the ghatwals in the zamindari of Bishunpur adjoining Birbhum to whom Harrington makes a special reference [See, Harrington's Analysis, Volume II, page 510]. In some cases the gbatwalis were created directly by the ruling power, while in other cases they were, created by the landlords or zamindars for the purpose of protecting their zamindari and tenantry and to enable them to have a small force at their command and to discharge the obligations they owed to the ruling power. Sometimes the owners of large ghatwali estates sub-divided and re-granted the lands to other tenants who besides paying small rents held their lands on condition of rendering certain quasi police and military services and providing a specified number of armed men to fulfil the requirements of the Government or of the zamindar as the case might be.

As the ghatwali tenures differed from one another in many respects, such as, size, importance, origin, incidents and the duties which the incumbent of the office of ghatwal had to perform and the privileges he used to enjoy, it is by no means easy to suggest a complete and logical classification of the various types of this tenure. We read in the decision of Raja Leelanand's case that in 1813 the Collector of Bhagaipur reported that there were at least four kinds of ghatwalis in his district. Very broadly speaking, however, ghatwali tenures may be said to fall under two classes, (1) those created by the Government or the ruling power and (2) those created by the zamindar or the holder of a ghatwali estate. In the judgment of the Privy Council—Satya Narayan Singh v. Satya Nimnjan Chakravarti, there is a reference to another class of ghatwali tenures which though created by the Government have, since their creation, and generally at the time of the Permanent Settlement, been included in a zamindari estate and formed into a unit in its assessment. These last ghatwali tenures are really a branch of class (1), but perhaps they deserve special mention owing to their anomalous position.

The ghatwali tenure originally introduced was so similar to service or chakaran tenure that at one time the nation prevailed that ghatwals had no right of inheritance but were entitled to hold the land only so long as they performed the terms and conditions of their sanads. This was what the Collector of Bhagalpur reported in 1813 to the Magistrate of Bifbhum in answer to certain enquiries in respect of the ghatwali lands in his district [See Raja Leelanund Singh v. The Government of Bengal], and this also appears to be the view taken in Tikayet Jugmohan Singh v. Raja Neelanand, where it was held that a ghatwali tenure though in existence before the Permanent Settlement is essentially different from a mukarrari tenure, the continuance of the former depending on a condition of service and of the latter on the regular payment of rent and consequently the former tenure might be resumed by the zamindar at any time either on the dismissal of a ghatwal for neglect of duty or when the performance of the service for which the tenure was created ceased to be necessary.

In course of time, however, it began to be recognised that these tenures had become perpetual and hereditary. In Munorunjan Singh v. Raja Leelanand Singh it was held that the ghatwals of Kharagpur held a perpetual hereditary tenure at a fixed jama payable in money and service and could not be evicted by the zamindar except for misconduct. The learned Judges in course of their judgment observed—

“All analogy, all history and all the facts which have been brought to our notice go to show that as a matter of fact these tenures whatever may have been the express terms of the grant, have been constantly handed down from generation to generation…*………. but no instance can be shown in which the zamindar on his own mere motion has ejected the ghatwal and determined the tenure. We are quite clear that under the established usage and constitution of the country he cannot do so.”

In Kooldip Narain Singh v. Mahadeo Singh a suit was brought by the auction-purchasers of an estate for the eviction of certain ghatwals on the ground that the performance of their service was not needed and had been dispensed with and that as the ghatwali property was comprised within the estate they had bought, they were entitled to take possession of it. The ghatwal defendants contended that the lands were held by them under the head “hereditary ghatwali tenures” and the Secretary of State who was also a defendant put in a written statement denying that the Government had renounced its claim to the services renderable and asserting, that it would enforce them when necessary. A Full Bench of the Calcutta High Court held that the zamindar was incompetent on his mere motion without the consent of the Government to put an end to the ghatwali tenure and deprive the ghatwals of the land and treat them as common trespassers, the position of the parties being thus defined by Jackson, J., one of the learned Judges composing the Bench:—

“The lands are subject to the service, the defendants are entitled to the tenure, the plaintiff is entitled to the quit rent and the Government to the revenue; the services are public and for the benefit of the public and not private for the benefit of the plaintiff alone.”

These decisions as well number of others, which need not be quoted, have now fully established that ghatwali tenures are heritable and descend from generation to generation. The process by which these tenures became hereditary is stated by Lord Sumner in Satya Narayan Singh v. Satya Niranjan Chakra-arti:—

“In such cases the ghatwali tenure, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the office to descend to some member of his family, if not necessarily to the senior member………………… A recognised right to be appointed ghatwal then takes the place of a formal appointment; a recognised right in the superior to dismiss the ghatwal if he is no longer able and willing to render the service required by his tenure, and to appoint another person to the office and the tenure of the lands, then readily suffices to maintain in perpetuity the incidents of the tenure.”

Two other incidents which are commonly associated with a ghatwali tenure are inalienability and indivisibility. That it is indivisible was pointed out in Burial Singh v. Jorawan Singh and as to inalienability the Judicial Committee observed in Satya Narayan Singh v. Satya Niranjan Chakravarti:—

“A further incident of such a tenure is the inalienability of the ghatwali lands, for it is obvious that if the whole lands were alienated together at the choice of the ghatwal, he would be in a position either to make his own alienee, possibly a person nonresident or unfit, the ghatwal in succession to himself without the consent of his superior, or to deprive himself of the whole of the means provided to enable the services to be rendered while himself retaining the office, whose obligations he could in consequence no longer fulfil. The office cannot, except by special custom, grant or other arrangement, either run with lands or be severed from them. If the lands are alienated piecemeal and this must be involved in a right to alienate them at all—the same difficulty arises in another form, for here the office being indivisible, the question is to which of a number of several purchasers of the lands is it to pass.”

This rule of inalienability may in the case of Zamindari Ghatwalis be qualified by local custom and in fact it has been found to be so qualified in the case of the ghatwals of the Kharagpur zamindari. In Kali Prasad v. Ananda Rai Lord Fitzgerald delivering the judgment of the Privy Council observed—

“The question then which their Lordships have to consider and decide is whether the sale and transfer of a zamindari ghatwali in Kharagpur under a decree is invalid by reason of the tenure being in its nature inalienable.

The evidence establishes a number of instances in which there have been unquestioned transfers and sales applicable to mahals in Kharagpur, and some to portions of the same estate which the plaintiff describes as part of his ancestral, inalienable, ghatwali right. This custom of alienation has been proved in fact by oral and documentary evidence to the satisfaction of the Subordinate Judge and of the High Court, and their Lordships see no reason to doubt the correctness of the conclusion in that respect of the two Courts.

It seems to their Lordships that the true view to take is that such a tenure in Kharagpur is not inalienable, and may be transferred by the ghatwal or sold in execution of a decree against him if such transfer or sale is assented to by the zamindar………. When once it is established that the ghatwal had the power of alienation, as before stated, that power forms an integral portion of his right and interest in the ghatwali, and there is no evidence whatever to limit it to an alienation for his own life and no longer”.

A Government ghatwali on the other hand has been uniformly held to be inalienable. In Nilmoni Singh v. Bakra Nath Singh it was definitely held that it was not liable to attachment and sale in execution of a decree. The incidents of a Government ghatwali, therefore, are that it is hereditary indivisible and inalienable, but the rule as to inalienability may be relaxed by the Government in certain cases and the tenure may be alienated by the special permission of the Government. It is to be remembered also that a Government ghatwal while he enjoys certain special privileges, also suffers from this disability that he can at any time be dismissed by the Government for misconduct as there was some discussion before us as to whether a Government ghatwal may wilfully and habitually default in the payment of rent with impunity, we may here appropriately state our view that if the ghatwal holds the ghatwali tenure subject to the payment of a fixed and established annual sum and to the peformance of certain duties for the maintenance of the public peace, he will be liable to be dismissed by the Government on failure to discharge either of these obligations.

So much for the origin and the chief incidents of the two main classes of the ghatwali tenures known as Government ghatwalis and zamindari ghatwalis. The point to be determined now is to which of these two classes Handwe belongs. We have already sufficiently indicated what our conclusions are going to be and we shall briefly summarise them here. Fortunately we have before us exhibits I and J, that is to say, Captain Browne's patta of 1776 and Mr. Dickinson's parwana of 1794 and, as the Judicial Committee have pointed out in Satyanarain Singh v. Satya Niranjan Chakravarti, “the nature of the estates of Handwe rests upon the true construction and import of these documents and not upon the nation entertained about them in later generations”. We have referred to these documents and have shown that they purport to make grants on behalf of and in the name of the East India Company and when we have in view the fact that Captain Browne's avowed policy was to bring at least the more important ghatwali estates directly under the control of the East India Company, there can be no room for doubt that the Handwe estate was in its origin a Government ghatwali. This conclusion is strengthened by the fact that in Captain Browne's “India Tracts” the Handwe estate is described as one of the three ghatwali estates which were under the control of the Collector of zilla Jungle Terai, the other two being Lachmipur and Chandan Katoria. As we know there were numerous other ghatwali tenures in Kharagpur and the fact that only three of them were placed, under the Collector and a number of these tenures were in charge of the rent-farmer is not without significance. The respondents have tried to explain away exhibit I by the production of exhibit 83 and similarly they have tried to neutralize the effect of exhibit J by the production of exhibits 3 and 138. But we have dealt with those documents and shown how unreliable they are and we have also shown that exhibits I and J have continued to be regarded as the documents on which the title of the owners of Handwe rests. In our opinion, therefore, there can be no doubt that the Handwe estate was in its origin and has continued to be a Government ghatwali estate possessing all the incidents of a Government ghatwali to which we have referred. It is true that the ghatwali services have now lost their importance and the Government have practically ceased to be interested in them. There is, however, no proof in the record of this case that the Government have ever done anything to terminate the ghatwali character of the land. On the other hand, as late as in 1907, in a mortgage suit [exhibit z(1)] relating to a portion of the Handwe property the Deputy Commissioner of the Santal Parganas having been appointed guardian ad litem of Satya Narayan Singh of Handwe, then a minor, put in a written statement on behalf of the minor, contending that the ghatwali had been created by the ruling power and that the suit could not proceed without the Government being made a party to it.

The respondents have advanced four main arguments to show that the Handwe estate cannot be held to be a Government ghatwali. It is said, in the first place, that in order to determine the true nature of the tenure we must take into consideration the acts of the parties as well as of the officials representing the Crown during the period which immediately followed the grant and that these will unmistakably show that the Handwe estate is a Kharagpur ghatwali and not a Government ghatwali. This contention is not without force. We have already noticed that in exhibits 111 (1781) and 137 (1788) the Raja of Kharagpur clearly asserted that he had the power to appoint ghatwals in a number of estates within, his zamindari including Handwe and that these documents were filed in the Collectorate. Again in exhibit 98 (1816) which was a report from the Collector to the Court at Murshidabad it was definitely stated that the power of appointing and dismissing the ghatwals of Kharagpur had rested with the Raja and that except in the case of Chandwe Passae all the ghatwals paid their rent to Qadir Ali and remained obedient, loyal and devoted to him. According to exhibit 99 (1817) the Collector was informed by the ghatwal of Kamardiha that when in 1188 Raja Qadir Ali got back his raj, all the ghatwals, who had obtained pattas from Captain Browne, presented themselves before the Raja, who had the power of granting pattas and appointing and dismissing ghatwals, and obtained fresh pattas at rents varying with the produce from him. Mr. Ward's report of 1833, exhibit 7(a), though it does not express any opinion as to what was the precise status occupied by Handwe, contains statements which seem to favour the respondents' contention that Handwe is not a Government ghatwali but a ghatwali under the Kharagpur estate. We have, however, dealt with all these documents and others of like nature and in our opinion they can be best answered in the words of Lord Sumner who dealing with the same matter observed:

“Undoubtedly this long series of administrative acts, records and reports which either affirmatively declare Handwe to have been a shikmi ghatwali of Kharagpur or negatively treat it as, at any rate, wholly free from any ghatwali services to the Government, is, as the learned Subordinate Judge found it, a very impressive circumstance. If the problem had been to infer the true original grant which, in the absence of the text of it, could only be collected from the evidence of what was done and left undone in connection with Handwe by the ruling power, it would, no doubt, have been difficult to infer, as the explanation which best fitted all the facts, that the right originally granted consisted of a ghatwali tenure, held from the East India Company direct. The production of the authentic tests of the original, grants completely alters the question, and it becomes in the first instance one of construction. The reports of the Government officers are not even contemporanea expositio, for the earliest ones must have been based on hearsay accounts, already one or two generations old, and presumably not on any inspection of the original grants, since they are not mentioned.”

The second argument advanced on behalf of the respondents relates to the significance and effect of the inclusion of Handwe in the Kharagpur zamindari by the sanads of 1780 as well as at the time of the Decennial and Permanent Settlements. The argument is a two-fold one and has been put before us more or less in this form—(1) How could Handwe if it was a Government ghatwali estate, be included within the Kharagpur zamindari? (2) Even if we were to assume that it was in its origin a Government ghatwali estate, it ceased to be so as soon as it was included within the Kharagpur estate. The short answer, to the first argument is that the grant upon which the title of the Handwe ghatwals is based unmistakably shows it to be a Government ghatwali and it is not the only case in which the properties of persons who are admittedly Government ghatwals have been included in the zamindari of other persons. We have stated before that Lord Sumner when enumerating the various kinds of ghatwalis in the Santal Parganas refers also to Government ghatwalis “which since their creation, and generally at the time of the Permanent Settlement, have been included in a zamindari estate and formed into a unit in its assessment”. In Durga Prasad Singh v. Braja Nath Bose a digwar whose status was similar to that of a Government ghatwal was treated as such notwithstanding the fact that his estate was included within another zamindari. In Nilmoni Singh v. Bakra Nath Singh Sir Barnes Peacock, dealing with a similar argument, observed as follows:—

“The Permanent Settlement of the land did not alter the nature of the jagir or of the tenure upon which the lands were held nor could it convert the services which were public into private services under the zamindar. The zamindar became entitled only to the rent or revenue which was previously payable to the Government and in respect of which he was assessed, and not to the services in respect of which the one-third of the rent or revenue was allowed to the tenant as compensation for the services. Those services continued to be due to the Government”.

Another case in point is that of the Birbhum ghatwals whose status was made clear by Regulation XXIX of 1814. They were undoubtedly Government ghatwals and yet their estates had been included in the zamindari of the Raja of Birbhum.

As to the second argument we have already commented on the fact that there is nothing in the sanad of 1780 or in the proceedings of the Decennial or the Permanent Settlements to show that it was intended that the ghatwals of Handwe should by reason of the inclusion of their estate in the zamindari of Kharagpur occupy a status different from that which they occupied before. Onrthe other hand the fact that the Collector of Bhagalpur issued a fresh parwana to the ghatwals of Handwe in 1794 after the Decennial Settlement of the entire mahals of Kharagpur including Handwe had been concluded with Raja Qadir Ali, is alone sufficient to show that Handwe had not ceased to be a Government ghatwali merely by reason of its inclusion in the Kharagpur estate and its being a unit in the assessment of that estate. The position may be anomalous but it has not been shown to us that either historically or on any legal principle the Government ghatwal whose taluk was included in the zamindari of another person could not continue to be a Government ghatwal. In fact, as the Judicial Committee has pointed out in the Hetampur case, unless the inclusion of the tenure and assessment of the zamindari lands can be shown to have amounted to a release by the Government of the ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint a ghatwal, the tenure must remain, as it originally was, a Government tenure.

The third argunjent advanced on behalf of the respondents is based upon analogy. It is contended that Handwe should not be supposed to possess a status different from the other ghatwalis of Kharagpur none of which has been either claimed to be, or has been recognised either by the zamindar or by the courts of law as being, a Government ghatwali. There is force in this argument and it is supported by the history of the other ghatwalis of Kharagpur of which we have already given an account of some length. The argument is further supported by the fact that some of the component parts of the Handwe estate which were included in exhibit I were afterwards dealt with as if they were ordinary zamindari ghatwalis. In this connection learned Counsel for the respondents read out to us extracts not only from the judgment of the Judicial Committee in Raja Leelanund Singh v. The Government of Bengal but also from several other decisions relating to some of the ghatwalis of Kharagpur, and laid stress on passages where it is asserted that the power of the Raja of Kharagpur to appoint and dismiss ghatwals was unquestioned. He laid particular stress on the report of the Collector as reproduced in the decision of the Privy Council in Leelanund Singh v. The Government of Bengal and an extract from an order of the Governor-General in Council which was communicated in 1783 to Raja Qadir Ali informing him that Rani Sarbeshwari had been dismissed from her office of ghatwal of Jamuni Harnapar and intimating to him that

“as the office is in Your Highness' gift, Your Highness will, if you deem it proper, appoint a person to the office of the ghatwal of the said pargana to watch day and night at the said ghat”.

Lastly he pointed out that in many other instances ghatwali sanads had been granted by Captain Browne and contended that judging from the language of certain reported decisions it was highly probable that these sanads were granted in the same terms as are to fee found in exhibit I.

The argument, as we have already stated, is impressive but the fact remains that the status of the Handwe ghatwals is to be determined upon a construction of the particular grant from which they derived, their title and cannot be decided merely upon the analogy of other ghatwali estates. Indeed the respondents have not placed on the record a single sanad granted in respect of any of the other ghatwali estates of Kharagpur and whatever room there may be for surmise we cannot state with any degree of judicial certainty that the contents of the other sanads must have been identical with those of exhibit I. The statements made in Raja Leelanund's case cannot be applied without discrimination to the present case because that case dealt mainly with zamindari ghat-walis and there is nothing in it to show that there were no Government ghatwalis in the districts of Bhagalpur and the Santal Parganas. Commenting on that decision Sir Barnes Peacock observed in Nilmoni Singh Deo v. Bakra Nath Singh:—

“In that case it was no doubt held that it was the province of the Raja of Khuruckpore to appoint and dismiss the ghatwals, but it was also stated that ghatwals held their land in virtue of sanads granted by the zamindar, except some who had received theirs from the former authorities; it was also found that in that case the lands had been granted by the ancestors of the Raja and it was said that the Regulation did not apply to land which the zamindars had permitted other persons to hold free from rent, or at a reduced rent or (referring to the cases in which the sanads had not been granted by the zamindar) to lands which such persons had a right to hold free from rent or at a reduced rent.”

Sir Barnes Peacock then referred to another case Raja Leelanund Singh v. Doorgabutty and added—

“In that case, however, as in the case already cited from 6 Moore's Indian Appeals 108, the ghatwal had been appointed by the Raja and the Raja, and not the Government, as in the present case, had a right to appoint and dismiss the ghatwal.”

It is also to be remembered that none of the other holders of ghatwali estates in Kharagpur seem to have ever seriously raised the question whether they were Government ghatwals or otherwise and most of them seem to have cheerfully accepted their subordination to the Raja of Kharagpur. In the case of Lachmipur alone the question arose whether it was entitled to separation from the Kharagpur estate and ultimately on the recommendation of the court it was separated. We doubt whether in those early days the distinction between the status of a Government ghatwal and that of a zamindari ghatwal was fully comprehended and we consider, therefore, that no inference can be drawn from the failure of the ghatwals to assert rights of the existence of which they may not have been aware. The holders of the Handwe properties did not, in so many words, assert themselves to be Government ghatwals for a long period, but from the year 181.0 onwards they have been asserting from time to time in the clearest possible terms that they were independent of Kharagpur. It appears to us in these circumstances that it would be dangerous to proceed upon mere analogy. The status of the Handwe estate has to be determined purely on the construction of the grant and that grant is before us.

The fourth and the last argument advanced on behalf of the respondents relates to the effect of the agreement entered into by the Government of Bengal with Raja Leelanund in 1868, and it is contended that after this composition Handwe could never be regarded as a Government ghatwali. We have already dealt with this contention at some length and given our reasons for not accepting it.

Two matters may be incidentally mentioned here. (1) The learned Counsel for the respondents has laid great emphasis on the fact that as the present plaintiffs were not parties to the Hetampur case which was finally disposed of by the Judicial Committee in Satya Narayan Singh v. Satya Niranjan Chahravarti, the decision of the Judicial Committee was not binding upon them and he contended that it should not in any way influence the decision in this case. He has furnished us with a list of exhibits which were not before the courts which had to deal with the previous case, and according to him these exhibits are sufficient to displace the view which was expressed in the former decision. Most of these exhibits (a list of which is given in the judgment of the trial court at page 116 of the printed paper-book) are either sanads granted by the Rajas of Kharagpur to certain ghatwals within their zamindari or they have no direct bearing upon the present case. There is, however, no doubt that a few of the documents filed by the plaintiffs, such as, exhibits 2, 3, 138, 83, 130, 133, 135, if held to be genuine, would seriously affect the claim of the Handwe estate to be regarded as a, Government ghatwali. We have examined these documents and have discarded them owing to their unreliable character. As we agree with, the respondents' contention that the decision in the Hetampur case is not binding on them, we have tried to come to our own independent conclusion on the facts of the present case and have endeavoured to deal with all the important documents produced by the parties and the arguments addressed to us on their behalf. It is to be mentioned, however, that the decision of the Judicial Committee in the Hetampur case must be treated as an authority binding on us as regards the legal principles expounded therein; and the historical discussion which it contains of the origin and nature of ghatwali tenures and of the manner in which the various incidents of this class of tenure grew or became attached to it will perhaps continue to be regarded for a long time as the last word on the subject.

(2) The other matter on which much stress has been laid by the learned Counsel for the respondents is that as the Crown has neither filed a written statement in this case, nor preferred an appeal against the decision of the lower court, it should be held that it does not challenge the assertion by the plaintiffs and accepts the finding by the court below that Handwe is not a Government ghatwali but is an ordinary Kharagpur ghatwali. Such an inference, however, we are not prepared to draw. It has been well settled that a mere omission to file a written statement does not amount to an admission of the facts stated in the plaint [See Ross & Co. v. Scriven and Narendra Singh v. King-Emperor]. The non-appearance of the Crown in this Court may be due to the fact that the Crown is indifferent to the result of the litigation and does not consider itself justified in incurring unnecessary expense. As has been already stated the services attaching to a Government ghatwali, however important they might have been at one time, have lost that importance now and are seldom actually rendered or required to be rendered. This consideration might well account for the attitude taken up by the Crown in the present litigation.

We will now pass on to the other main issue in the case which relates to the claim of the plaintiffs to be regarded as proprietors of the Handwe estate. At first sight this claim seems to receive support from a series, of most impressive circumstances and the learned Counsel for the respondent has naturally made the most of them in the course of his arguments. It is a fact that Handwe was included in and covered by the assessment of the Kharagpur zamindari in 1780 as well as during the Decennial Settlement and the Permanent Settlement. In the successive statements of the ghatwali properties submitted by Raja Qadir Ali in 1781 and 1787-91 Handwe is shown to be included in the Kharagpur estate and it was found 5 to be so included in a number of official reports and records. In exhibit 6, which is an extract from the Quinquennial Register prepared under Regulation 48 of 1793, Qadir Ali is shown to be the proprietor of pargana Handwe among other parganas. In 1810 in reply to a rubakari of the District Judge the Collector of Bhagalpur reported that Hand we was included in the milkiat zamindari of Qadir Ali (exhibit 97) and to the same effect was the report submitted by the Collector in 1824 to the civil court (exhibit 142). In a proceeding of 1833 Mr. Ward based his decision upon the fact that in the column “Proprietor, zamindar and choudhury” of pargana Handwe, the name of Raja Qadir Ali stood recorded (exhibit 7). When in 1840 the Kharagpur estate was sold for arrears of revenue the sale included Handwe and it is not disputed that the auction-purchaser acquired the same rights with regard to Handwe, whatever those rights may be, as the previous proprietors of the Kharagpur estate formerly possessed. The Registers D that were subsequently prepared show Handwe as part of the Kharagpur estate and it is the Kharagpur estate which is on the Collector's roll as a revenue-paying estate. In 1841 a report was made by the record-keeper of the Collectorate to a Deputy Collector stating that Handwe had been settled with Qadir Ali with other Kharagpur mahals (exhibit 106). Handwe like many other ghatwalis escaped resumption on the ground that it had been included in the Kharagpur estate and this was the ground that was urged more than once to prevent the estate being placed under the management of the Court of Wards on the same assumption. In 1863 in a suit brought by Raja Leelanund Singh against the Court of Wards representing Raja Udit Narayan Singh of Handwe the Collector filed a written statement on behalf of the ward admitting the plaintiff to be the proprietor of the entire Kharagpur Raj including Handwe, vide (exhibit 29). During the land acquisition proceedings of the years 1863-1867 the holders of the Kharagpur estate obtained compensation with regard to lands which were part of the Handwe estate. It is clear that if this case were to be decided upon these circumstances alone, there would be some difficulty in holding that the plaintiffs should not be regarded as the proprietors of Handwe. The matter, however, is not so simple and in order to come to a correct conclusion we will have to go back to the time of the Permanent Settlement and consider the status of Handwe before the Permanent Settlement and how, if at all, that status was affected by reason of the Permanent Settlement.

Section 4 of Regulation VIII of 1793 provides that

“the settlement under restrictions and exceptions hereafter specified shall be concluded with the actual proprietors of the soil of whatever denomination, whether zamindars, talukdars or chaudhuris”.

From this and other sections of the Regulation which indicate that the persons with whom the settlement was going to be concluded were to be regarded as proprietors of the soil, it is contended on behalf of the respondents that whatever may have been the position of the Raja of Kharagpur anterior to the date of the Permanent Settlement, he must be deemed to have become, by reason of that settlement, the proprietor of all the parganas including Handwe that became the subject of it. It is further argued that the ghatwals of Handwe cannot be regarded as proprietors of that pargana because the Permanent Settlement was not made directly with them. Now, it is undoubtedly an historical fact that a number of talukdars who, strictly speaking, were proprietors of the soil were not dealt with directly by the Government and their taluks were included in other estates (see also section 5 of Regulation VIII of 1793). Whether this was due to oversight or to the desire on the part of the Government not to have to deal with too many separate estates or to some other considerations, is not a matter that need be considered here. Provision, however, was made in the Permanent Settlement Regulation VIII of 1793 itself for separation upon an application made in that behalf in a proper case of taluks which had been wrongly included within the ambit of permanently settled estates. In the Regulation of 1793 no time was fixed for the making of such applications but by 1801 the necessity to fix a time limit was realised and so by section 14 of Regulation I of 1801 all talukdars who as proprietors of the land composing their taluks might consider themselves entitled to be separated from the zamindaris to which their taluks had been attached were enabled to prefer a written application to the Collector of their zilla for the separation of their taluks within one year from the date of this Regulation under penalty of forfeiting all title to separation under Regulation VIII of 1793 if they should omit to apply as directed within the prescribed period. It was further provided that in the event of such an application not being made within the time prescribed,

“the taluks shall thereafter be considered as dependent taluks not entitled to be separated from the zamindaris to which they may be attached though, in other respects, the rights of the talukdars are not meant to be in am degree affected by the Regulation”.

It is not denied that the holders of the Handwe properties did not make an application for the separation of their estate within the time prescribed. In the record of this case we find an application to the appellate court by Jhabban Singh in the year 1819 after the litigation of 1810-1819 was concluded. It was made, however, long after the expiry of the period prescribed by the Regulation of 1801 and it was disallowed. The grounds of its rejection are not stated, but whatever they may have been it appears to us that the position of the Handwe ghatwals cannot be lower than that of a dependent talukdar in the sense in which the expression was used in Regulation I of 1801, that is to say, the holders of a dependent taluk not entitled to be separated from the Kharagpur estate but whose pre-existing rights remained in all other respects unaffected.

The status of a dependent talukdar and the question whether he can be regarded proprietor not, have been considered in a number of cases. In Kamakshya Narain Singh v. Jado Charan Singh Mullick, J., one of the learned Judges of this Court, expressed the opinion that any talukdar who failed to avail himself of the provisions of Regulation I of 1801 must be deemed to be a lease-holder whose contribution to the zamindar was rent and not revenue. This view seems to receive some support from the following observations made by Mr. Ameer Ali in Srinath Rai v. Protap Udai Nath Sahi Deo:—

“The Regulation draws a wide distinction between ‘independent talukdars’ and (‘dependent talukdars’. The former come within the category of ‘actual proprietors of land’ whereas the latter do not— “they are considered as lease-holders only”—(section 7 of Regulation VIII of 1793).”

A less strict view as to the effect of non-separation under Regulation I of 1801 was taken in two later cases. One was the case of Surendra Nath Karan Deo v. Kumar Kamakshya Narain Singh in which Sir John Wallis expressed himself thus:—

“The Chief Justice has also relied on the fact that as the defendant's predecessor after the Permanent Settlement, did not seek for separation as he was entitled to do if his present case is true. Now, it is matter of history that the number of talukdars entitled to separation was so great that Lord Wellesley' Government found it necessary to pass a Regulation in 1801 limiting the time for making such an application to three months from the date of the Regulation. In their Lordships' opinion the failure of the defendant's predecessor in this backward and remote part of the Presidency to put in an application within the time limited cannot be considered as raising any presumption that he was not entitled to make such an application.”

In the other case, Charu Chandra Ghosh v. Kumar Kamakshya Narain Singh, Sir John Wallis restated the view which he had previously expressed in these terms:—

“With regard to this part of the case it is only necessary to add that it is well settled that if the Jagudih Raja was the proprietor of these nankar villages, his title was unaffected by his estate being included in the Permanent Settlement or any of the previous settlements with the Raja of Ramgarh, [Juggut Mohinee Dossee v. Sookhemony Dossee] and that his failure to apply as such proprietor for the separation of his estate under Regulation VIII of 1793 within the time limited by section 14 of Regulation I of 1801 merely deprived him of the right to separation as the section expressly left his other rights unaffected.”

These are two of the leading cases in which the effect of non-separation under Regulation I of 1801 was considered, but there is also a long line of cases which deal with the presumption, arising from the Permanent Settlement, in Ranjit Singh Bahadur v. Kali Dassi Debi Lord Parkar made the following observations on the subject:—

“Passing to the settlement of 1793 it appears to their Lordships to be beyond controversy that whatever doubts be entertained as to whether before the English occupation the zamindars had any proprietary interest in the lands comprised within their respective districts, the settlement itself recognises and proceeds on the footing that they are the actual proprietors of the land for which they undertook to pay the Government revenue. The settlement is expressly made with “zamindars, independent talukdars and other actual proprietors of the soil”—see Regulation I, section 3 and Regulation VIII, section 4. It is clear that since the settlement the zamindars have at least a prima facie title to all the land for which they pay revenue such lands being commonly referred to as malguzari lands.”

In Raj Kumar Gobinda Narain Singh v. Shyam Lal Singh Sir George Lowndes, after citing the abovementioned passage, added:—

“It follows from this pronouncement that in the case of any claim against the zamindar to lands which were included in his zamindari at the permanent settlement the burden of proof is upon the claimant.”

In the light of these authorities it is clear that it is for the appellant to prove that she is the proprietress of the Handwe properties and the question is whether such proof has been furnished in this case on behalf of appellant. We have already stated that the origin of the Handwe ghatwali is shrouded in obscurity and there are no clear authentic records before us that enable us to say with any precision what was its status before the assumption of the Dewani by the East India Company. Our starting point must, therefore, be the sanad granted by Captain Browne to Subhao Singh and others. We have seen that by means of this sanad as well as by Mr. Dickinson's parwana of 1794 (exhibit J) Subhao Singh and his successors in interest acquired an istimrari mukarrari right in that portion of the Handwe pargana which was the subject of the grant. The strict view of law which has been expounded in some of the modern decisions is that a mukarrari lease is not tantamount to a conveyance in fee simple and a person who being the owner of land grants a lease in perpetuity carves a subordinate interest out of his own interest and does not annihilate it [See Rally Das Ahiri v. Mon Mohini Dassee. Thus a mukarrari interest is generally] regarded as not co-ordinate with but subordinate to the zamindari interest. It must be remembered, however, that in this particular case the grant in favour of Subhao Singh and others was made not by a zamindar but by the Crown itself and there is nothing in the grant to show that the grantees were to be regarded as subordinate to the zamindari of Kharagpur. The mere fact that they were described as mukarraridars does not necessarily imply a subordinate status. We must also make some allowance for the fact that the officers of the East India Company during the early part of their administration did not fully comprehend the complexity of land tenures in India nor did they possess any clear nation of the legal distinction between a mukarraridar and a zamindar (landlord) which has been evolved in later times. The Handwe ghatwali is according to Mr. Ward 600 square miles in area. Whether this statement is accurate or not there is no doubt that it is an estate of considerable magnitude yielding a large income and it is difficult to believe that when the istimrari mukarrari grant was made to Raja Subhao Singh and others it was contemplated that the latter should have a status inferior to that of a zamindar as the term was understood in those days. Literally “zamindar” means a land (zamiri) holder (dar) but, as the compiler of the Fifth Report has pointed out in his introduction (XXXVII), the term included persons whose relation to the lands in their enjoyment was of a very varying character, for example, “by a zamindar might be meant a representative of some ancient Hindu sovereignty; it might mean a Government farmer, who in recent years had acquired his zamindari by inserting himself in the place of the dispossessed, and it might mean the occupant of but, a single pargana”. In our opinion the status held by the Handwe ghatwals before the Permanent Settlement was that of talukdars who were declared to be the proprietors of the soil by Regulation VIII of 1793, but by reason of the fact that they did not take steps to have their taluks separated from the Kharagpur zamindari either under the provisions of the aforesaid Regulation or the Regulation of 1801, their status was converted into one of dependent talukdars. Their failure to apply for separation merely deprived them of the right to separation, other rights remaining unaffected [See Surendra Nath Karan Deo v. Kumar Kamakshya Narain Singh; Charu Chandra Ghosh v. Kumar Kamakshya Narain Singh].

We shall now refer to a few circumstances which seem to us to support our view that the holders of the Handwe ghatwali possessed a status not inferior to that of the talukdars who were declared by section V of the Permanent Settlement Regulation to be the proprietors of the soil. We have already stated that throughout his treatise “India Tracts” Captain Browne has referred to the ghatwals as zamindars. Raja Subhao Singh was actually described as a zamindar and pargana Handwe as his zamindari in the parwana of 1794 issued by Mr. Dickinson (exhibit J). We have also referred to the fact that in the chalan for revenue deposited by Subhao Singh in the year 1777 the estate of which the revenue was deposited is described as a taluk with Subhao Singh as proprietor and in the chalans S1 and S2 of 1779 and 1780 he is described as zamindar. The use of the word “zamindar” or “proprietor” in these chalans is by no means conclusive, but in our opinion does appear in the circumstances of the case to connote a status superior to that of the holder of a subordinate tenure. Again in the litigation of 1810 to 1819 one of the questions which seems to have been debated in the trial court was whether Jhabban Singh was the zamindar of pargana Handwe and the trial court although describing Jhabban Singh as a mufassal or dependent talukdar came without hestitation to the following finding:

“It is also in evidence that the ancestors of the defendant were and the defendant has been up till now in possession and occupation of the milkiat and zamindari and the istimrari mukarrari of the said pargana (Handwe) at one and the same time”.

This finding, as we have already shown, was affirmed by the appellate court. Again during the two successive settlements of Mr. Wood and Mr. McPherson the holders of Handwe were recorded in the column of proprietors (maliks) and what is more important is that in the record-of-rights all such proprietary rights as are referred to in the Santal Parganas Manual, 1925, Part I, were shown to be possessed by them.

Upon these facts and circumstances the conclusion which we have arrived at is that the holder of the Handwe properties must be held to possess the usual rights which go with the “proprietorship of the soil” and may well be described as proprietors of Handwe in this sense. It does not, however, follow that the inclusion of Handwe in Kharagpur zamindari at the time of the Permanent Settlement is a matter to be altogether overlooked. As we have stated, in I our view, Handwe had been probably a dependency of Kharagpur Raj at one time and this may have been a reason why Handwe wa included in the grant by which the zamindari of Kharagpur was restored to Qadir Ali. If, however, the inclusion implied any subordination such subordination was merely a nominal one as is apparent from the fact that the zamindar of Kharagpur was not allowed to charge from the, holders of Handwe properties the usual perquisites of two annas in the rupee (duanni rasum) which the zamindars used to charge in respect of most of the parganas which appertained to their zamindari. The sanad of 1780 by which the zamindari of Kharagpur was restored to Qadir Ali shows that the effect of the inclusion of Handwe within the zamindari of Kharagpur was two-fold—(1) the Raja of Kharagpur was entitled to appropriate a sum of about Rs. 82 out of the revenue of Handwe as Kanungoi fee. This he was allowed to do as presumably the old Rajas of Kharagpur must have held the office of Kanungo in relation to the Handwe estate; (2) The revenue which the Handwe estate was to deposit in the Government Treasury was now to be paid through the Kharagpur estate. The Permanent Settlement does not seem to have very much altered the relative position of the parties, but as we have already stated the failure of the holders of Handwe ghatwali to have their taluks separated from the Kharagpur zamindari was to convert them into dependent talukdars. The result was that thenceforward the Rajas of Kharagpur became superior landlords of the Handwe estate and what used to be paid by the latter as revenue was now payable as rent to the Kharagpur estate. This view is supported by the decision in Chandra Kanto Chakravarti v. Jai Gopal Chakravarti. In that case certain suits were brought by a zamindar for rent of a shikmi taluk in the Revenue Court under Act X of 1859. It was held by the lower appellate court that as the shikmi talukdars did not hold under the zamindar but only paid a share of the revenue allotted against-their estates through the zamindar to the Government, the zamindar could not sue them for rent but only for their shares of the revenue. The matter, however, was taken up in appeal to the Calcutta High Court which held that this view would have been correct if the talukdars held the estates in the Collectorate tauzi, separate from the plaintiff's estate, and the payment of the revenue through him was only a matter of convenience among themselves. But if the shikmi taluks were at the Permanent Settlement comprised within the zamindar's estate, the taluks were subordinate to the plaintiff and the share of the refvenue which was assessed upon them was paid in the shape of rent to the zamindar.

Under the Bengal Tenancy Act “proprietor” means a person owning an estate or part of an estate, while “estate” means

“land included under one entry in any of the general registers of revenue paying lands and revenue free lands”.

The Bengal Tenancy Act does not apply to the Santal Parganas, but the nation that the proprietor is one whose estate is on the Collector's roll is shared by all the revenue officers in the province and the official records are prepared on that basis. There can be no doubt that in the great majority of cases the proprietor is the person whose name is on the Collector's roll, but the test is somewhat artificial and cannot be the basis of the decision where the holders of estates once entitled to separation under’ the Regulation of 1801 have not taken timely steps to effect separation. It appears, therefore, to us that the question whether the plaintiffs are the proprietors of Handwe is one which cannot be answered either affirmatively or negatively without qualification. The way in which we would answer the question is somewhat as follows: The position of the proprietor of the Kharagpur estate is that of a superior landlord or one who is entitled to realise a certain rent from the Handwe ghatwals, but the holders of Handwe properties possess all the rights which usually go with the proprietorship of the soil. We prefer to express cfurselves in these terms, because in our opinion the unqualified use of labels such as “tenure-holder”, “mukarraridar” or “zamindar” may be highly misleading in this particular case. In one sense, if the qualification's that we have set out are kept in view, we may use the term mukarraridar or “holder of an isikhrari mukarrari ghatwali tenure” with reference to the appellant and the term zamindar with reference to the respondents, but in describing the status of the former we prefer to adhere to the expression “dependent talukdar” in the sense in which it has been used in the Regulation of 1801 and to use with reference to the latter the term, “superior landlord” which we understand is not unknown in that district and which was actually used by Mr. Ward in his Settlement Report in describing the status held by the zamindar of Kharagpur in relation to Handwe and which occurs also in the correspondence between the Collector and Commissioner of Bhagaipur and the Deputy Commissioner of the Santal Parganas relating to the land acquisition proceedings of 1863-67; What may be the rights of the superior landlord other than the right of receiving rent it is unnecessary for us to decide or state. In Secretary of State for India v. Jyoti Prasad Singh Deo Lord Phillimore describing the status of holders of thanadari land observed:

“No doubt the holders of thanadari land stand in a certain position to the contiguous zamindar. If the lands are resumed they are to be settled with the zamindar; and it may be that they even be described as settled with the zamindar in a certain sense and that there is a sort of superiority in the zamindar which might entitle him to the surface of the land in case of escheat. Whether this would give him the claim to the minerals is a further question”.

It may be that on closer examination of the question the rights of the superior landlord might be found to be similar to those described by Lord Phillimore but we do not feel that we are called upon to decide this matter. We wish also to make it absolutely clear that we refrain from expressing any opinion as to the rights of the parties to the underground minerals. These rights have not been specifically referred to in the plaint and have not been made a subject of this litigation. It was conceded by both the parties that no underground minerals have been discovered yet and neither party has apprised us of any circumstances which might afford any reasonable ground for believing that such minerals are actually in existence. A discussion of the rights to the underground minerals would in such circumstances be purely academic and in any event we consider it undesirable to express any opinion as to these rights in the absence of the Crown which might not have stood aloof from these proceedings if the underground rights had been made a direct issue in the litigation.

Another important issue between the parties was whether the present suit is maintainable in view of the provisions of sections 11 and 25A of Regulation III of 1872. It may be recalled that on the 16th December, 1924, the Commissioner of Bhagalpur Division reversing the order of the Settlement Officer directed the appellant to be recorded as a Government ghatwal and proprietor of the Handwe estate and an entry was ultimately made in the record-of-rights to that effect. It is contended by the appellant that this entry became final as the Commissioner's order had the force of a decree of court under section 11 and that no suit can be brought in the civil court to contest this entry under section 25A of the Regulation. Section 11 runs as follows:—

“That except as provided in section 25A no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules, but the decisions and orders of the Settlement Court made under these rules regarding interests and rights abovementioned shall have the force of a decree of Court.”

Section 25A states—

“Where only the rights, of zamindars and other proprietors as between themselves are concerned, a suit may, unless it is barred by section 13 of the Civil Procedure Code, be brought in a Court established under the Bengal, Agra and Assam Civil Courts Act (1887) to contest the finding or record of the Settlement Officer within three years from the date of the publication of the record-of-rights or of the final order of the Revenue Court * * * * If in any such suit it is found that the finding of the Settlement Officer is erroneous, the record shall be amended accordingly.”

Now, the only question to be decided is whether “the present suit relates to the rights of zamindars and other proprietors as between themselves”. Prima facie this would be so, if both the respondents and the appellant were admitted to be zamindars or proprietors. Learned Counsel for the appellant, however, contends that as the case set out in the plaint is that the appellant is not a zamindar or proprietor, but merely a tenure-holder or mukarraridar, the suit is not one contemplated by section 25A of the Regulation, and in support of his argument he has cited the following decisions: Sib Narayan Mukherjee v. S.P Chatterji; Rally Das Ahiri v. Man Mohini Dassee; Abhiram Goswami v. Shyama Charan Nandi; and Dwarka Prasad Marwari v. Tebi Babi. In some of these cases it has been laid down that the status of a mukarraridar is inferior to that of a proprietor and in the first mentioned case Sir Asliutosh Mookerji observed that a person who holds a derivative title under a zamindar cannot rightly be classed as a proprietor in the sense in which the word is used in the expression “zamindar and other proprietors” in section 25A of Regulation III of 1872. The other cases need not be discussed because they deal with a class of persons who are obviously not proprietors. The question whether the present suit is barred or not depends upon the proper construction of section 25A. That section appears to be somewhat clumsily worded and its application in some cases is apt to give rise to difficulty. Questions may arise, for example, (1) whether the section; contemplates that the contesting parties must in all cases be proprietors of the same estate or property and (2) whether the section applies only to those cases where the status of the particular zamindars or proprietors is not questioned or it will apply even to cases where each party asserts himself to be a zamindar or proprietor, but the other party does not admit him to be so. In Ramranjan Chuckerbutty v. Nanda Lal Lalk a mere assertion by the plaintiff that he had a proprietary right in certain lands was held to be sufficient to enable the Civil Court'to take cognizance of the case, though the defendant did not admit that the plaintiff had any proprietary interest. In that case certain lands which were entered in the record-of-rights as mal (lands for which revenue was paid by the zamindar) and assessed with rent were claimed by the plaintiff as lakhiraj, while the main defence of the zamindar was that the land's were not lakhiraj but rent-paying mal. It was held that a lakhirajdar was a proprietor and that the plaintiff was entitled to maintain the suit because he claimed a title hostile to the zamindar, asserting that the lands were his valid lakhiraj and that he had held the same as lakhiraj for more than twelve years adversely to the zamindar. If this decision is correct, (and it has not been suggested that it is not), there seems to be no reason why the section should not be held to apply to cases where the dispute is between two rival claimants, each claiming to be the proprietor of the same property. The section obviously will have no application to disputes between a landlord and a tenant or to cases where one of the parties neither is, nor asserts himself to be, a zamindar even though the other party may be a zamindar and where there is no dispute as to any proprietary right between them. It will, however, we think, be unduly restricting the scope of the section and defeating the purpose for which it has been enacted to hold that it will not apply unless each party admits the other party, to be a zamindar or proprietor. If the interpretation that we suggest is correct it appears to us that a suit by the plaintiffs was clearly maintainable in the Civil Court because in the present suit both the plaintiffs and the defendant claim to be the proprietors of the Handwe properties. If, however, a more rigid and literal interpretation is demanded, even then, as the respondents contend, the present suit will be maintainable because according to the last record-of-rights prepared under the order of the Commissioner the plaintiff is described as the zamindar of Kharagpur and defendant no. 1 is described as the proprietor of Handwe. In any view of the matter it appears to us that section 25A is no bar to the present suit.

We have dealt with the issues relating to res judicata and estoppel, while dealing with the previous proceedings in connection with which these pleas were raised, or documents which are alleged to support these pleas and we may observe here that as no arguments were addressed to us as regards issues nos. 1, 2, 3, 4, 5, 6, 9, 26, 27, 28 and 29, we considered it unnecessary to deal with them. We also consider it unnecessary to deal with issues nos. 10 and 11 in view of our finding that the payment which is annually made by the ghatwals of Handwe to the zamindars of Kharagpur is rent and not revenue. When this modification of the Commissioner's order is made it cannot be said that the revenue settlement, of mahalat Kharagpur has been in any way affected.

We shall now pass on to the appeals arising out of the four rent suits. Appeal no. 21 arises out of Rent Suit no. 1 of 1923 which was re-numbered 11 of 1927. The suit was brought against Kumar Satya Narayan Singh, the last holder of the Handwe properties, for recovery of rent for the years 1328-1329 Fasli. Kumar Satya Narayan Singh died on 7th May, 1924, during the pendency of the suit and defendant no. 1 was substituted in his place. Appeal no. 22 arises out of Rent Suit no. which was also instituted against Kumar Satya Narayan Singh for the rent of 1330 Fasli. Appeal no. 23 arises out of a suit instituted in the year 1925 against the appellant for the recovery of the rent for the years 1331-1332 Fasli. Part of the rent claimed in this suit accrued due during the life-time of Kumar Satya Narayan Singh and the remainder became due after his death when the appellant succeeded to the property. Appeal no. 20 arises out of a rent suit instituted in 1928 against the appellant to recover rent for the years 1333 to 1335 Fasli which accrued due after the estate came into the possession of the appellant. It is not denied by the appellant that the amounts claimed fell due as alleged by the plaintiffs and that the claims are still unsatisfied, but the only contention which has been advanced in this appeal before us is that the appellant is not liable for such rent and cesses as fell due during the life-time of Kumar Satya Narayan Singh. We may state here that this contention was not raised at all in the trial court and was raised before us not only at a very late stage but under very peculiar circumstance's which ought to be mentioned. What happened was that Sir Sultan Ahmad who has argued the case for the appellant only casually mentioned the point in the course of his opening address but he subsequently told the Court definitely that he did not press the point. Later on, after he had concluded his argument and when the argument for the respondents was in progress he told the Court that on second thoughts he had made up his mind to contest the liability of the appellant for the arrears of cess which had, become due during the life-time of Kumar Satya Narayan Singh but he did not contest her liability so far as the arrears of rent were concerned. Almost at the conclusion of the hearing Mr. Sushil Madhab Mullick, one of the learned Advocates who appeared with Sir Sultan Ahmad for the appellant, intimated to the Court that he now wished to press the contention that the appellant was not liable also for such rent as had fallen due while the estate was held by Kumar Satya Narayan Singh. In addressing the Court on this point he claimed it to be one of the incidents of a Government ghatwali tenure that the present holder of the estate should not be liable for any rent that may have fallen due during the lifetime of the last holder and in support of his contention the learned Advocate cited certain cases which may be here referred to. In Kastoora Koomaree v. Benode Ram Sein the appellant, a widow whose ghatwali property was under the management of the Court of Wards, objected to the execution of a decree obtained against her deceased father-in-law on the ground that the execution could not proceed against the profits of the ghatwali estate held by the Court of Wards in trust for the widow of the late proprietor. The Court of Wards realising the justice of the claim had not objected to the execution and so the Judge had allowed the execution to proceed. The High Court in appeal upheld the order of the Judge on the ground that the appellant being under the Court of Wards had no power to object but observed as follows:—

“Ghatwali tenures are not liable either to sale or attachment in execution of decrees (Vide Sudder Dewanny Adawlut Reports, 1st September, 1833). They are grants of land given in payment of service; and, although the custom of the country has made them hereditary, they had in no otherwise changed their original character. They are life-tenures only, and the incumbent for the time being has no power to burthen them, after his death, with any of his personal liabilities. It is not denied that the money now in the hands of the Court of Wards represents the profits of the land for a period subsequent to the judgment-debtor's death, and it ought not in justice to be appropriated to pay that person's individual debts”.

In Benode Ram Sein v. Deputy Commissioner of Santal Parganas it was held with reference to Regulation XXIX of 1814 which relates to Birbhum ghatwalis that a ghatwali tenure cannot be subject to any encumbrance created or debt contracted by any of the previous holders.

In Raja Nilmonee Singh v. Bakra Nath Singh it was held that a suit would not me against a jagirdar holding certain tenures on account of arrears of rent unpaid by his predecessor. The ground for this decision was stated thus by Jackson, J.

“If the landlord neglected to realise the rent from the former incumbent year by year and claimed to recover the arrears of several years at once from the new jagirdar, he will be necessarily deprived of the funds which will enable him to perform the services and to support himself as originally contemplated.”

In Nilmoni Singh Deo v. Bakra Nath Singh Sir Barnes Peacock referred with approval to the last decision and observed that “the case is expressly in point, for if a successor is not liable for rent of the jagir due from his predecessor, it follows a fortiori that he may not be liable for an ordinary debt”.

It will be seen that the only case in which the question of the liability of a jagirdar holding a service tenure for arrears unpaid by his predecessor directly arose was that of Raja Nilmonee Singh v. Bakra Nath Singh in 1868. Learned Counsel for the respondents assails the correctness of this decision and characterises the observations made by Sir Barnes Peacock in Nilmoni Singh v. Bakra Nath Singh as mere obiter dicta, his contention being that no question of the jagirdar's liability for rent which had accrued due during the life-time of his predecessor arose in that case. He has also tried to distinguish the decision in question by pointing out (1) that in the present case the landlords have not neglected to realise the rent regularly from the former holder of the property but that there has been throughout a persistent and obstinate refusal to pay rent, (2) that the services said to be renderable by the appellant have not been rendered for a long time and have now fallen into disuetude which was not the case so far as Bakra Nath Singh was concerned as is apparent from the fact that the Government supported him even in 1882 in the litigation which Went up to the Privy Council and was disposed of by the judgment of Sir Barnes Peacock in Nilmoni Singh Deo v. Bakra Nath Singh, and (3) that in the present case it has been shown that decrees were obtained in the past against the holders' of Handwe for amounts which accrued due when the properties were in charge of their predecessors and such decrees were realised without any objection on the part of the owner. We consider it unnecessary to deal with any of these grounds because in our opinion the appellant's contention may be disposed of on a clearer and more important consideration. It is not seriously denied that the point raised now was not raised at all in the trial court and this is the view which, is fully supported by a perusal of the record of the case. From the record of Appeals nos. 21 and 22 it appears that one of the points taken in the written statement of the defendant no. 1 (appellant) was that the plaintiffs had no cause of action against this defendant (See paragraph 28 of the written statement). Learned Counsel for the respondents, however, has shown that this statement occurred even in the original written statement filed in these suits by Kumar Satya Narayan Singh (See paragraph 24 of the written statement filed by him in these two suits) and was bodily reproduced in the written statement filed by the appellant when she was substituted in the proceedings in place of her husband. Why Satya Narayan, in whose life-time the rent had admittedly become due had stated in the written statement that the plaintiffs had no cause of action against him has not been explained and there can be no doubt that paragraph 26 of the appellant's written statement is a verbatim copy of the paragraph 24 of Satya Narayan's statement. In this country one finds in the written statements filed in the majority of suits a conventional and stereotyped plea that the plaintiff has no cause of action and we have no doubt that the paragraphs in the written statements of Kumar Satya Narayan Singh and the appellant to which we have referred were no exception to this practice and were inserted as a matter of form. At page 13 of the paper-book of Appeal no. 21 where in issues framed in Suit no. 1/11 of 1923 are enumerated we find that the seventh issue runs thus:—

“Has the plaintiff any cause of action against the defendant”?

This issue, however, was subsequently struck off and it appears from order no. 101 passed by the Subordinate Judge on 19th June, 1930, that it was struck off because it was not pressed. In the record of appeal no. 23 no such issue appears to have been raised at all even though a portion of the amount claimed had fallen due when Kumar Satya Narayan was alive. It is also quite clear that the matter was not agitated in any form before the trial court. When, the appeal was preferred in this Court a ground was taken in the memorandum of appeal that the lower court should have held that the defendant appellant was not liable for the amount which had fallen due before she came in possession under the ghatwali laws. As we have already stated, this ground was in the first instance abandoned at the time of the argument. We have already given an account of what followed afterwards and the manner in which the junior section of the legal representatives of the appellant tried to revive this abandoned contention and, as was to be expected, learned Counsel for the respondents vehemently protested against the line of action taken by the appellant's lawyers. After a careful consideration of the matter we find ourselves in complete sympathy with the learned Counsel for the respondents and we think that the contention should not be allowed to be raised at this stage. Whatever the privileges of a Government ghatwal may be it is well settled, and it is also conceded by the appellant, that any surplus proceeds of the property which accrued due during the life-time of the appellant's predecessor and have now come into her hands can be followed for the purpose of realising the rent for which he was liable in his life-time and that the decree can be realised from the appellant so far as she is in possession of those amounts. In every case, therefore, of this kind it is a question of fact whether the succeeding ghatwal has come into possession of any assets of the deceased; and, if so, whether those assets are sufficient to pay off the rent that was due during, the life-time of his predecessor. If the appellant had denied her liability in the written statement or contested it at the trial it would have been open to the plaintiffs (the respondents now) to show that she had in her possession sufficient assets of the deceased and was liable to pay his dues to the extent of those assets. The defendant no. 1, however, not having given the opportunity to the plaintiffs to do so at the trial and not having denied her liability in so many words in her written statement for the rent which accrued due during the life-time of her predecessor it would be unfair to allow her to do so for the first time in appeal. We doubt that the decision in Raja Nilmonee v. Bukranatk Singh Would have been what it was if it had been shown that the ghatwal or the jagirdar had mixed up the surplus proceeds of his predecessor's time (which were liable to be followed for his debts or for the rent due from him) with the income which had accrued since he took charge of the property. The trial court dealing with the claim of the plaintiffs in the rent suit found:

“The accounts given in the plaint are not challenged by the learned Advocate for the defendant. The plaintiffs are entitled to get the sums claimed in the four rent suits.”

In this Court also it was neither suggested nor argued that the amount which is alleged to be due was not in fact due and in our opinion, therefore, the appeals in the four rent suits must be dismissed.

The only matter that remains to be dealt with now is the respondents' cross-objection filed in these appeals and they relate to the interest pendente lite and future interest on the amounts claimed and decreed respectively. No such interest has been awarded by the court below and what the respondents contend is that in justice they ought to have been allowed some interest. In our opinion the court was right in not allowing interest pendente lite, but future interest should have been allowed. It appears that the plaintiffs applied to the Subordinate Judge who was to hear the title suit for an order to hear the rent suits consecutively. The Subordinate Judge rejected the application and so the matter was brought up before the High Court where the following note was made in the order of the learned judges who disposed of the plaintiffs' application:

“The defendant does not object to the course proposed by the plaintiffs. She only asks that she may not be saddled with the interest for the period during which the hearing of the rent suit is stayed on account of the application of the plaintiffs. The plaintiffs agree to give up interest for this period and under these circumstances we see no reason why the three cases should not be heard together one after the other.”

It appears that the hearing of the rent suits was considerably delayed owing to the action of the plaintiffs and, therefore, the learned Subordinate Judge was right in not allowing interest pendente lite but we find no reason why the plaintiffs should be deprived of interest from the date of the decree to the date of realisation and we accordingly direct that the plaintiffs shall get interest at six per cent, per annum on the decretal amount from the date of the decree of the lower court to the date of realisation.

In conclusion in Appeal no. 19 of 1931 we hold—

(1) That the property to which the suit relates is a Government ghatwali,’ heritable, inalienable and indivisible.

(2) That the said property is in relation to the Kharagpur zamindari a dependent taluk in the sense in which the expression has been used in section 14 of Regulation I of 1801.

(3) That the plaintiff-respondents are the superior landlords and are entitled to realise the sum of Rs. 2,171 as rent plus such cesses as may from time to time be chargeable to the appellant's estate. The rent is not liable to be enhanced.

(4) That the appellant possesses the ordinary rights of a proprietor of the soil and particularly such, proprietary rights as are referred to in the Santal Parganas Manual, 1925, Second Edition, page 167, and is also liable to perform such duties as are enumerated therein.

(5) That the ghatwali estate being inalienable it follows that it cannot be sold in execution of a decree for rent, cesses or any other dues secured or unsecured. The Government, however, can dismiss the ghatwal for any misconduct in relation to his office and in our opinion deliberate and persistent default on his part to pay rent may constitute such misconduct, inasmuch as one of the conditions of the grant under which the Handwe properties are held is that the holders of the properties are liable to pay a certain annual sum and that sum has now been made payahle to the zamindar of Kharagpur.

(6) That the entry in the settlement record should stand subject to this modification that the relation between the two estates inter se should be described in the manner indicated in clauses (2), (3) and (4).

No opinion is expressed as to the rights of the parties or the Government to the underground minerals. Appeal no. 19 is, therefore, allowed except in so far as it has been found that the plaintiffs are superior landlords and the defendant no. 1 is liable to pay an annual, rent to them. As to costs, as the appellant has not been wholly successful, we award only half the costs both in this Court and in the Court below. The other appeals are dismissed with costs and the cross-objections are allowed with costs in proportion to the plaintiffs' success.

Appeal no. 19 allowed in part.

Appeals nos. 20 to 23 dismissed.

Cross-objections allowed in part.