VI1 MOORE IND. APP., 128 UNIDE RAJAHA RAJE BOMMARAUZE BAHADUR

[I281 UNIDE RAJAHA RAJE BOMMARAUZE BAHADUR,- -8ppetlalnt; PEM-

MASAMY VENKATADRY NAIDOO and Others,-~espondents * [Dec. 1 2,

13, 18581.

On appeal from the Sudder Dewanmy Adawlut at Madras.

Amaram, or service tenure, in Madras, is resumable at the will of the Zemindar

for the time being in possession, where the lands held under an amaram

grant form part of his Zemindary [7 Moo. Ind. App. 132, 1331.

A grant in Enam, is in perpetuity, and not resumable [7 Moo. Ind. App. 132, 1331.

Lands held under an amaram grant from a former Zemindar, at a fixed rent,

resumed by the Zemindar in possession, for the purpose of full assessment of

the lands, upon extinction of the services.

The rules with regard to the admissibility of evidence are not to be observed

with the same strictness in proceedings in the native Courts in India as in

the Courts in England.

Copy of a document coming out of a public office, and certified by the proper

officer of that department as a copy of a copy deposited there, admitted as

evidence [7 Moo. Ind. App. 1391.

In this case the appeal wag brought from a decree of the Sudder Dewanny

Court at Madras, by which the claim of the Plaintiff (the Appellant’s father), the

then Zemindar of Karvetinugger, to resume a village named Veraraghavapuram,

forming part of his Zemindary, was dismissed, on the ground that the Respondents

and their ancestors had been in uninterrupted possession of the village for fifty

years, and that the Zemindar had failed to establish that the village was [I291 held

by the Respondents on Amaram, or service tenure, so as to justify the resumption

for assessment.

The question was one of tenure and of the right of resumption. The main

issues between the parties being these :-

First. What was the nature of the tenure under which the Respondents held the

village in question. The Appellant contended that it waa held by the Respondents

under a grant by his great-grandfather in favour of an ancestor of the Respondents

on his joining the military adherents of the Zemindary, and that it was subse

quently, down to the year 1840, granted to such of the members of the Respondents’

family as were employed in the service of the Zemindar for the time being, by way

of remuneration for such services; that in 1840, the Zemindar dismissed his

servants and resumed, among others, this village, it being from the nature of the

tenure liable to be resumed a t the will of the Zemindar. The case of the Respon-

dents, on the contray, was, that they and their ancestors had, since the year 1798,

held the proprietary right of soil in the village as an Enam, or gift in perpetuity,

from the Appellant’s ancefkor; that they never paid rent for the aame either in

money or services, and, consequently, that the village was not liable to be resumed

at the will of the Zemindar for the time being. Secondly; assuming that the

village was held by the Respondents only upon an Amaram tenure, they denied that

the tenure was determined, and the village resumed by the Appellants’ father in the

year 1840.

The principal facts of the case, as they appeared from the pleadings, are

sufficiently stated in their Lordships’ judgment. The documentary and oral [130]

evidence bearing on the points a t issue is also fully set forth therein.

The appeal was argued by Mr. Rolt, Q.C., and Mr. Blaine, for the Appellant ; and

Mr. R. Palmer, Q.C., and Mr. Mackeson, for the Respondents.

Upon the question of tenure in Madras, of lands held under an Amaram grant

being vested in the Zemindar, and hi8 right to resume them for the purpose of

assessment, Mad. Reg. XXV. of 1802 was referred to.

And as to the admissibility as evidence of a copy of a Kaifiynamah, out of the

* Present : The Right Hon. Dr. Lushington, the Right Hon. T. Pemberton Leigh,

~ _ _ _ - ~~- _-

the Right Hon. Sir Edward Ryan, and the Right Hon. Sir Cresswell Cresswell.

258

e. PEMMASAMY VENKATADRY NA~DOO [1858] VII XOORE IND. APP., is1

Collector’s Office, Syetdr A5has AG Khas v. Yadeem &my Red@/ (3 Noore’s Ind. App.

Cases, 156) was cited.

Their Lordships, without calling for a reply, delivered judgment by

The Right Hon. Dr. ~ushington.-~onsiderin~ that the decision in this case may

a E s t a very considerable amount bf property, besides that which is the proper

subject of this suit j and seeing that the two Court8 in India have pronounced con-

flicting judgments, we should, had we entertained any doubt whatever as to the

advice which we should tender to her Majesty, have been anxious to have heard a

reply, and to have taken time for consideration ; but the cwe is, in our judgment, 80

clear, that only one result can pomibly be come to, and, there-[131]-fore, we pro-

ceed at once to declare the opinion we have formed upon the questions before us.

The parties to this appeal are, the Zemindar of oneof the four weatern Zemiadaries

of Arcot, the original Plaintiff, and now Appellant ; and certain persons occupying

lands within the ~ i n d a r y , who were the Defendank, and are now the Respondents.

The suit commenced in 1848, in the Zillah Court of Chittore. The plaint stated

that the Zemindary was originally granted by the Rajah of Arcot to the ancestors of

the Plaintiff; and that on the accegsion of the British Government, that grant ww

confirmed under certain conditions. It then sets forth that certain grants were

made to the ancestors of the Respondents, in the nature of “ Amaram ” grants ;

that t h w grants were resumable; and that, in the year 1841, the Plaintiff re-

sunied those grants, and required the Respondent to pay the full assessment on

their lands; and i t concluded by stating that the demand was for Rs. 13,597, being

the amount due on such assessment, including interest.

The answer of the Reapondents was to the following effect : that their ancestors

rendered great services to the ancestors of the Plaintiff; that, in requital for these

servicw, a grant was made to them of several Districts, then a jungle, amongst

which lands was the village in question; but they denied that they held it on

Gond~~ion of rendering any service, or that they rendered any; and alleged that

they held it under a Sunud from the Appellant’s ancestors. They then stated that

this action ought not to have been brought for the recovery of the arrears, but

ought to have been brought for the village itself. They did n& deny that a Jodi or

quit-rent was paid for the village, but [I323 alleged that that Jodi was fixed, and

permanent, and never was, or could lawfully be, increased. They distinctly denied

the power of the Zemindar t o resume or alter the grant enjoyed by them.

The reply called upon the Court to ask for the document under which the Re-

spondents alleged they held the village, and referred to various facts and circum-

stances as tending to establish the appellant,^ right, as set forth in the plaint. There

was a rejoinder on behalf of the .~espondents, which was, as the ot.her pleadings are,

in great part, an argument on the evidence to be produced.

It seemed prudent to the advisers of the Appellant to file a supplemental plaint

for the reco.i-ery of tbe village.

The real question between the ~ a r t i e ~ i s ; under what tenure the. Respondents

held the village? On the part of the Respondents they say it was of Enam tenure.

The Appellant contends that it was an Amaram tenure,

Before proceeding further, it may be expedient to consider the nature of these

tenures, and the incidents c o n s ~ u e n t herem.

There has been much controversy, in argument a t least, as to the meaning of

these words, though we find no such doubt in either the Zillah or Sudder Dewanny

Courts. We apprehend that the word (‘ Enam ” originally meant a grant generally j

that such grants were of various descriptions-as an Altumgha Enam, which

meant a grant in perpetuity, not resumable by the Zemindar. That there were

various other grants, as set forth in the statement of Mr. Stratton, hereafter referred

to, a8 grants for religious or charitable purposes; and also two other descriptions

of grants, [I331 called ‘‘ Amaram,” and “ Kattubady,” and that the latter grants

were grants resumable. Probably, in process of time, when the word “Enam”

alone was used, it meant a grant in perpetuity, not resumable. But there is not

the least reason to suppose that when the tern I‘ Amaram ” was applied, it did not

mean a grant resumable at the pleasure of the Zemindar. We think that this

explanation will, in very great measure at least, be confirmed by the reference we

359

c

VII XOORE INB. APP., 132 UTulDE IlAJANA IlAJE ~OMMARAUZE BAHADUR

shall presently make to the evidence in the cause. For instance, in the judgment of

the Ziflah Court, the Judge states that the Defendants contend that the grant was

not s service E n m , evidently showing that Enam ” was a word to be qualified

according to its own conditions. That an Amaram grant was resumable, is t ~ m n e d

throughout the judgment.

The title of the Appellant to the Zemindary is not a matter in dispute; but we

will refer to the documents upon which that title is founded, in order to ascertain

the powers which he was authorized to exercise under that title.

What were the powers of a Zemindar, of one of these Zemindariw, prior to the

year 1802, i t might be difficult to define with perfect accuracy; hut we may presume,

as we think we are fairly entitled to do, and with no d i d v a n t a g e to the Respon-

dents, that they were at least c o ~ e n s u r a t e with the powers stated to belong to a

Zemindar in 1802. The most important documents on this subject are, first, a

letter of Mr. Stratton, the Collector of the Northern division of Arcot, to the Board

of Revenue, which is dated the 14th of July, 1801, put in evidence by the Plaintiff;

in the fourteenth paragraph of that letter, he [I$&] states that the Poligars, that is ,

the Zemindars, are at liberty to resume the Asnaram Enams, without a ~ i g n i n g any

reasons to the respective occupants ; the word ‘‘ Amaram ’’ being used by him as an

adjective. The next document, and a most important one it ig, is dated the 24th

of August, 1802, and is produced by the Respondents; and it may be remarked, by

the way, that it is verified as a true copy by Mr. Bourdillon, the Collector. It is a

letter from Lord Clive, then Governor of Madras, to the then Zemindar of this

Zemindary. m a t document states that, from 1792, the Zemindary was subjected

exclusively to the British Government, that the established Pei& Cush alone was

paid, and that the Zemindary was free frctm all other charge except the military

establish men^; i t proceeds to relieve the Zernindar from all military services, and

to fir a payment instead : and this letter further states that a Sunud, fixing the sum

of star pagodas to be paid, is transmitted. In the seventh paragraph of this letter,

Lord Clive refers to the revenue which will revert to the Zemindar from the Amaram

Peons; or, in other words, he points out that the military service on which such

Arnarams were held, being discontinued, the revenue would revert to the Zemindar.

The eleventh paragraph ie to the same effect.

The Sunud mentioned in that letter sets forth the facts already stated, provides

for a transfer by a sale or gift, commits the police to the Zemindar, requires engage-

ments with the Ryots to be in writing, and confirms to the Zemindar in perpetuity

the Zemindary.

The next document is a letter from Mr. Stratton to [I351 the Judge at Chittore,

dated the 17th of January, 1807, and in that letter he expressly declares that

Amaram grants were resumable.

Now, without going further, the following facta appear to be established :-

First. That the Appellant is the Zemindar of the Zemindary, with the authority,

Secondly. That the lands in question are within the Zemindary.

Thirdly. That the Respondents hold under a grant either in perpetuity or

~ o u r t h ~ y . That Aniara~i grants are resumable at pleasure.

It may not be necessary in this case to consider minutely upon whom the o w s

pobuisdi is-under the circumstances stated-thrown : it is more convenient to

took at the evidence in the case, and tQ see what the result is, when all the facts

proved in evidence are taken into consideration. We will proceed then to the

Respondents’ evidence as to their title to a grant in perpetuity, or what is called,

in these proceedings, an Enam grant.

It must be recollected that in the defence of the Respondents, they state that they

and their ancestors enjoyed this property under the Sunud granted by the Appef-

lant’s ancestore, and that they paid the, p r e w r i M Roosums. Now, the only document

upon which any reliance can be placed in support of this avowal, is a stahment of

t‘he boundaries of the village Kaverirajpuram, and is dated the 24th of July, 1798.

It i s difficult to say from whom this document comes, or to whom it is a d d r m d .

The ZilIah Court apprehended it to be an order from the chief officer of the [ISJ

then Z e m ~ ~ d a r to the R ~ p o n d e n ~ ’ ancestor. Now this document ha@ neither the

260

and under the obligation, already stated.

resumable.

'U. PEMMASAMY VENKATADRY NAIDOO [ 18 5 81 VI1 MOORE IND. UP., 137

name of the grantor nor grantee, nor are there any words of grant in it, nor any

conditions of any kind : it is simply a statement of certain limits to certain villages,

concluding with an order that they should be reclaimed through Vellore Vama

Naidoo.

Giving the utmost latitude of construction to this instrument, it appears to us

wholly impossible to contend that it is a grant of any description whatever, though it

may be a direction that the ancestors of the Respondents should be permitted to

reclaim the lands in question. There is no other documentary evidence whatever to

establish the Respondents' title, and, therefore, we must presume that this document

is the Sunud, or grant, upon which they rely, as mentioned in their answer to

the plaint.

The claim of the Respondents, therefore, is founded upon an existing grant,

and the case is not, and cannot be, assimilated to a claim founded upon a long

continuous possession, where the title-deed is alleged to have been lost, and, therefore,

that its existence and contents might be presumed. There is no such averment in

this case, neither is th&e any other documentary evidence whatever tending to

prove any grant. We must now turn our attention to the documents brought for-

ward by the Appellant.

In considering the further evidence produced, the document entitled to the

greatest weight, provided it be clearly admissible in evidence, is a copy of a

Kaifiynamah. That document purports to be addressed to the East India Company,

and to have been given by the third Defendant in this suit; it is dated the 19th of

July, 1842, and is certified to be a true copy, [137] by J. D. Bourdillon, the Collector ;

and it is an admitted fact that Mr. Bourdillon was appointed Collector in 1848,

about the time when this suit commenced. Objections have been taken to the

admissibility of this document as evidence, and it has been contended to be a copy of

a copy. With regard to the admissibility of evidence in the Native Cburts in India,

we think, that no strict rule can be prescribed. However highly we may value the

r~lesl of evidence as acknowledged and carried out in our own Courts, we cannot

think that those rules could be applied with the same strictness to the reception of

evidence before the Native Courts in the East Indies, where it is perfectly manifest

the practitioners and the Judgecl have not that intimate acquaintance with the

principles which govern the reception of evidence in our own Tribunals ; we must

look to their practice, we must look to the essential justice of the1 cam, and not

hastily reject any evidence, because it may not be accordant with our own practice.

We must endeavour, as far as the materials will allow us, having received the

evidence, to ascertain what weight ought properly to be ascribed to it, and, more

especially, where we find that it has been the practice of the Court to receive docu-

mentary evidence, without the strict proof which might here be considered necessary,

we must not reject that evidence; indeed, the consequence of so doing would

inevitably be, if the strict rule were adhered to, to reject the most important

evidence, not only in this case, but almost in every other. Looking through the

whole of these papers, we see that both on the side of the Appellant and Respondents,

copies of documents coming out of a public office have been received upon the

certificate that [I381 they were true copies, signed by the officer in the charge of

that department, and that whether produced by the Plaintiff or the Defendants in

the cause.

We entertain no doubt, therefore, that this document must be received in

evidence, but what weight is to be ascribed to it still remains to be considered ; all

we know of it a t present from the certificate of the Collector is, that it is a copy of a

document remaining in his office, whether the copy of an original, or of the copy of

a n original, at present n m constat. It has been contended on the part of the Re-

spondents, that it is a document of no authority, being merely the copy of a copy ;

but they have not in their pleadings denied its authenticity, nor have they produced

any evidence to prove that it is undeserving of credit, nor is it impeached in either

of the judgments. Now, whether this Kaifiynamah was given by one of the Defen-

dants or not, is a fact within his own knowledge. This document, however, is

attempted to be impeached through the medium of the evidence of one of the

Appellant's witnesses, and to that evidence we shall now direct our attention. That

witness was Balagurunada Fillay, a Sampratee, or accountant under the Zemindar,

261

and he was cross-e~amined on behalf of the preaent ~ p o n d e n ~ , and the conmence-

ment of that Cross~~amiRation relateg to certain Sunuds. After that c r o s s ~ x a ~ i n a -

tion, he is questioned as to this Kai f i~amah. Sce states the contents of that Raifiy-

~ ~ a ~ a h , that it was given to the ~e r~x tada r , and forwarded by him to the Collector,

and that he has a. copy of it. He says it i s in a

book which was returned to the ~ e m ~ n d a r by the C o ~ ~ ~ t o r , E1391 and he says he has

brought that book. He says the copies of the Sunuds vere taken when the Defen-

dant gave the Kypheyut, and were there in the book, and that no copies were kept

in the Collector’s office, either of the $unuds or other vouchers. He i s asked whether

the copies of the ~ y p h e ~ t and ~ u ~ u d s entered in the book b a r the s ~ g n a t u r ~ of

the Seristadar? or of one of Ghe ~ e f e n d a n ~ ; and he says, “No.” He is asked

whether they bear the signature of the ~ o l ~ ~ ~ r to prove that* the book was returned

from the ~o~~ector ’s ,o%ce.

Now, it is perfectly manifest, upon consideratiori o€ this evidence, that it in

no degree whatever proves that the document, calkd a Kai~ynamah, was the copy

inquired of by the question; but, on the contrary, that the quest~on put to this

witness related to the book by hint praduc , and the copies therein contained, and

not to that docu~~ient; and this is more especially evinced by his depos~n~ , that the

copies of which he was speaking did not bear the s~gnature of the Col~ector ; whereas

upon the face of this document, it does bear that signature.

This evidence, however, is of importance, and great importance too, to show that

the original Kypheyut wa8 deposited in the Collector’s oflice, and that this document

is a copy of that original. !Fhe witness swears that the original was forwarded to

the Collector.

We enterta~n no doubt whatever that this d o c u ~ e n t i s entitfed to be received as

eyidence in this case, and we proceed to consider its contents, and the inferences to

be drawn from. theni.

It is not denied that this ~ a ~ f i y ~ i a ~ a h was given by one of the ~exponde~ts? and

he d ~ ~ r i b e s himself as an Amardar. This 3 a ~ f i y n a m a ~ states the history of [l@]

the family and of the grants made to them, and it especially refers in the third

~ & r a g r a p h to a Sunud dated the 31st of July, 1198, to a grant under Amaram tenure,

stating it to be ~ o o ~ b a l ~ a , or rent*free ~ a n d ~ g h y ; and in the sixth p a r a g r a ~ ~ ,

which more especially relates to this pruperty, the grant is stated of this village to

be under Amaram tenure, with a Jodi of fifty star pagodas, under a Sunud, dated the

1st of April, 2818. The eleventh paragraph refers to 8 Sunud, dated the 31st of

July, 1835, relating to another grant of this village.

It is a possible case

looking at the extensive powers with which the Z e ~ i n d ~ r i s invested, that the grant

being origina~ly ‘‘ A m a r a ~ ~ and resuntable, might, when the ~ i l i t a ~ service was

dispensed with, and circumstances had ~hanged, been converted into a perpetual

grant upon a fixed payment. Had this been the case, it ought to have been distinctly

pleaded, and the grants themselves, if produced, would have shown whether such

defence could be supported.

Now, bearing in mind that this i s ~b d ~ u ~ e ~ t coming from the ~ e s p o n a e n ~

themselves, and setting forth the Sunuds under which they hold the village, and

c ~ a ~ ~ i n g in 1842, rights in respect thereof, we necessarily ask why the ~espondents

have not produced those d o c u ~ e n t s ~ In every view of the case it was incumbent

upon them so to do : first, as tenan& of the Zemindar, holding property under him j

secondly, as being in possession of the titles upon which they held their property,

and on which in this document they found their claims.

In the argument which was addressed to us from 11411 the bar, we have not been

able to discover any reason whatever why this ob~igation has not h e n fu~fiIled.

Mucfi time has been ~ ~ u ~ i ~ in endeavour~ng to prove that the copies of these

Sunuds produced by the Appellant ought not to be received in evidence ; whereas it

had been much more b e n e f i c j a ~ ~ employed in s ~ o ~ i ~ , if it had been ~ r a c t ~ c ~ b l e *

why the ~ s p o n d e n t s had not produced in evidence the very documents which they

vouchd as their titles. c

As to the parol evidence of the ~ e s p o ~ d e n ~ , it is clearly entitled to no weight

whatever ; indeed, i t is whoIly ~ n a d ~ i s s i b ~ e . How can we receive parol evidence

of the contents of documents from those who have the custody o f those very docu-

263

Be i s asked when he got the copy.

He says they do not.

This i s a very brief summary of the contents of this document.

U. PEMMASAMY VENKATADRY NAIDOU [1858] VII MOORE IND. APP., iu

nients? We need not add that such parol evidence is in direct contradiction of the

Respondents' own statement in the Kaifipamah.

Now, if the case rested here, to what conclusion must we necessarily come? Why,

that the Respondents held under Amaram tenure; and if they held under Amaram

tenure, it is equally clear that such grants were resumable at pleasure: i f this be not

the true construction to be put upon their own representation, it is the fault of the

Respondents themselves that they did not produce those very documents, which, upon

a perusal of their contents, would have set the question entirely at rest.

Such being the necessary inference to be drawn from the case, so far as we have

considered it, we deem it wholly unnecessary to enter into an investigation of the

subsidiary evidence, not that we mean thereby to sap that any part thereof ought to

be rejected, but that it is not necessary to take it into our consideration.

[I&] We shall not, therefore, expend time in considering the admissibility or

weight of the copies of the Sunuds produced, nor of the Jumabundy accounts, or the

muster-rolls, and much less is it necessary to look to the parol evidence of the Appel-

lant. We have the admission of the Respondents themselves that they hold under

dmaram grants, which, in the absence of all evidence to the contrary, are resumable

grants ; the grants, or Sunuds, themselves are their own proper evidence to clear

up any difficulty; and those they have not produced. We have no hesitation, there-

fore, in coming to the conclusion, that the Respondents held under grants which were

resumable at the pleasure of the Zemindar.

The contest in this case

is, whether what is called an " attachment " took place or not ; the precise meaning

of this word " attachment " is not explained. We apprehend the fact to be, that so

long as the lands remain in the actual possession of the Respondents, upon payment

of a certain gist, and the rendering certain services, the Zemindar, though entitled

to resume, was of course bound to give notice, and that in some public form. The

resumption consists in putting an end to the grant under which the Respondents

held, remitting the services, and requiring them to pay the full assessment. It does

not appear that an absolute dispossession was either attempted or intended, though

means were taken to prevent the Respondents reaping the crops.

In the account for 1831, there is an. entry of a Jodi paid by the Respondent,

Penimasamy Venkatadry Naidoo, of fifty pagodas, and increased thirty pagodas.

In the accounts for 1841, there is no entry of pay-[143]-ment of Jodi at all. This is

the year in which it is alleged the resumption took place. In this account is found

a statement that the village having been taken under attachment, certain accounts

were not furnished. Now, this entry is strong evidence to show that an attachment

did take place in 1841. We see not the least reason to suppose that this document

is not genuine and trustworthy, 'nor the slightest cause to suspect that such an

entry as this could be forged for the purposes of this suit. Whether it be the

attachment of the Zemindar, or of the Sircar, is not so certain.

There is a document relative to this question on which the Respondents have

greatly relied, and which, therefore, it may be desirable to notice. It is an extract

from the prweedinga of the Session Court of Chittore, dated the 19th of July, 1849,

and produced by the Respondents, though erroneously classed with the Appellant~s

evidence. It appears from that document, that certain Enamdais of the village in

question had been filed by the Magistrate for a riot ; one of them is a Respondent in

this case; the alleged riot was in September, 1848, the charge being that the Re-

spondents molested the Appellant's servants when they went to make the account of

the lands. The Head Assistant Magistrate was of opinion that the Zemindar was

justified in pursuing this course under an order of the Collector, and fined the

tenants, and the Magistrate confirmed this order. The caae appears to have been

appealed to the Session Court, and that Court waN of opinion that the order of the

Collector was simply to attach the property of Ryots, or others in arrear, as pre-

scribed by the Regulation. The Court thought the Zemindar was the first tres-

[144]-passer, that there had been no regular attachment of the village, and set aside

the fine. "he importance of this document is the denial of an attachment; but be it

remembered that the plaint was filed on the 21st of October following.

It ifi remarkable that the Judge of the Sessions Court wag Xr. Lovell, and that

this same gentleman was, in 1850, the Judge of the civil Court of the ZilIah of

Chittore; that he had to decide upon this very question, attachment or no attach-

263

The question of resumption remains to be disposed of.

VII xoom zm. UP,, 1% UNIDE R. R. B. BAHADUR v. P. v. x m o cl8581

men$, that being the first issue before him. He held that the a t t ach~en t was proved,

and he relies upon the evidenc3 documentary and parol, therein Cited. The first

document is an order in writing from the Z e ~ i n d a r to the Amildar to resume the

lands. This order is dated the 9th of June, 1840, and is proved by the: eighth

witnms. This docun~ent proves the ~ n ~ e n t ~ o n of the Zemindar to reaume.

mle parol evidence is to the f o i l o w ~ n ~ effect :--The third witness for the P la in t i~ ,

Jampurum Tirupatirauze, deposes to the fact of the village being squestered about

1842,and from a subsequent question i t i s apparent that the sequestration and attach-

ment mean the same thing. This witness was present when the Zemindar ordered the

r ~ u m p t i o n of the village, thoagh not at the actual resumption. It i s proper to

observe that prior to the resum~tion of these grants, various services fully set forth

were remitted to the ~ ~ p o n ~ e n t s . fourth w ~ t n ~ s , Rzanaya, saw the order of

resumption written, though not present a t the resumption. Many witnesses depose

that from the time of the r ~ u ~ p t i o n the personal services ceased. Amongst other

duties were those of attacking tigers. The eighth witness, Balagurunada Pillay,

gives [I&] very important. testimony : but after the deoision we have already come to

as to the d ~ c r i p t ~ o ~ of the tenure under which the ~ p o n d e n t 0 held the village, it

i s not n e c ~ a ~ ~ refer to that evidence save as it bears on the question of resunxption

or attachment. This witness gives a detail of the var~ous ~ u n u d s under which this

village was held from 1798; but we need aot travel through this evidence. It

appears that in 1831, when the village was under the management of the Court of

Wards, the former Jodi of 50 pagodas was raised to 80 pagoda@; that the Respon-

dents, or their ancestors, continued to hold the village on service tenure,

at a Jodi of 80 pagodas, till the 13th of May, 1840, when, according

to the evidence of this witness, a resumptio~ took place and has ever

since ~ n t ~ n u e d . He annex% an account showing what i s d e ~ ~ d e d . One

of the ~ s p o ~ d e n t s was from 1839-40, Moniegar of the viflage till X846-7, and it was

his duty to collect the revenue. Par t of the time, namely, in. 1842, the Zemindary

was under Sircar a t tach~ent . In 1845-6, in consequence of the alleged resumpt~on,

demand of the arrears was made from the ~ e s p o n d e n ~ . In answer to the 79th

question, he states that he was not present at the r ~ u m p t ~ o n ~ that the village has

been in the ~esponde~ t ' s possession since Keelaka (~anuary} ;and prior to that year

in that of the Zemindar.

Several of the witnesses speak in general terms to the r ~ u m p t i o n of the village.

The thirteenth witness, Shash~re~ha Peroomal, a Moniegar, proclaimed the re-

sumption, and carried out the order. The deposition of the fourteenth witness,

era saw my Pillay, explains the whole transaction in answer to the fourteenth

question. The village was attached, and th0 ~ s p o n d e n ~ ~ directed to collect the

revenue ac-[~~6]-co~djng to the rules observab~e when a village is under attachment,

and this accounts for the R~pondents r e m a i n ~ n ~ in possessio^. The seventeenth

witness, Streenevassiengar, saw the a t ~ a ~ ~ e n t publish^. A letter from. the Acting

Collector, dated the 24th of June, 1843, tends to ~ t & b l ~ s h the truth of these state-

ments j for it proves that in 1843, a r e ~ r ~ e n t a t i o n w w made to the Collector by the

Officers of the Z e m ~ n d ~ r , that though the former Jodi was paid, the r e ~ i n d e r , that

is, the assessment, was withheld.

The only contr~d~ct ion to this is, that the two first of the ~ ~ o n d e n t s ' witnesses

W' that they never saw the village resumed. The third witness knew nothing about

it, nor does the fourth,

m e n what i s the result of our exam~nation into this question of resumption or

atikhnent'! do not find in any of these papers, that the law has prescribed

any particular form in which such r e su inp t~o~ shall take place; nor, if there was

such form prescribed by law, that it has in any specified p a r t ~ c u ~ ~ r not been com-

Of course justice requires that a resumption should take place with due

publicity and upon reasonab~e notice. We haw abu~dance of evidence that a

formal i n & ~ ~ e n t of resumption was exixuted by the Zemindar, that such re-

~ u m P t i ~ n was publicly p r~ la imed , that the ~espondent8 were allowed to retain

Possession, but required to pay the full a s s ~ s ~ e n t ; but, when they were in default,

COm~laint made to the Collector that the Zemindar took forcible ~easures ,

Perhaps erronmusly, to obtain his claim. AI1 the a c c o ~ n ~ c r r ~ p o n d with the

evidence of the '~~tnesses ;and against this, i s only the isolated fact, that Mr. Lovell,

upon one occasion, with imperfect ~ n ~ o r m a t ~ o n (f r t"47'J the case was one of a riot),

'164

with.

~

B U N ~ A R E E LAL v, MAHARBJAH H, SING E18581 PII MOORE m. UP., 1~

thought that no regular a t ~ c ~ e n t had issued-an opinion which he altered when

the case came regularly before him, and he was supplied with that evidence which

before had been deficient. It is true that the Collector, when the Zemindar corn-

plained that he could not pay the piesh cush by reason that the Respondents with-

held their payments, expressed an opinion that the grants could not be resumed, and

that an attempt to do so would lead to lit~gation; but this was merely the opiaion of

the Collector, manifestly ignwant of the true state of the case.

In the judgment pronounced by the.Sudder Dewanny Court, they say that the

probability is, that the attachment never actually took place, although no doubt there

was an attempt made to effect it. A t all events, they say the village appears never

to have been taken out of the possession of the Respondents; we cannot think that

this reasoning ought to prevail against the evidence in the case. The Respondents,

if left in poasession at all, were in possession as the servants of the Zemindar, and on

condition of collecting the revenuei

The short history d the case i s this:--The Respondents were grantees under

~ e s u ~ b l e grants; that those grants were resumed by the Zemindar; and they

remained in poss~sion without payment of that assessment which they were lawfully

bound to discharge, and for such arrear6 of assessment this suit is brought. We are

of opinion, that the decree of the Zillah Court of Chittore was well founded in all

respects, and, therefore, w e must humbly advise Her Majesty to reverse the decree of

the Sudder Dewanny Adawlut, and with costs. The decree of the Zil1a.h Court will

be affirmed.

[See Forbes v. Meer Mdamed Xuquee, 1870, 13 Moo. Ind. App .461 ; Baboo B o a

narrak Simgh P. Babw Omrao Sirtgh, 1870, 13 Moo. Ind, App. 529.1

[l(nsl 3 U ~ W A R E ~ LAL, - ~ ~ e ~ t ; ~ ~ ~ A H H E T N R A ~ N SING and

Others,-Respmd..k * [Feb. 20, 22, 18581.

On upped from &e Sadder ~~~ ~~~~~ af; ~~c~~~~~

A letter in the nature of a guarantee, wholly in the handwrit~ng of A., written

upon stamped paper, sealed, but not signed or attested by witnesses, or

registered, to B., a co-Plaintiff with A., undertaking to indemnify B. from

costs, if he would join as a co-Appellant with A. in an appeal to England,

established, and held to operate as a release in an action brought by A.'s

heirs against B. to recovex his WO .rata. share of the costs of the appeal.

The latitude with which documentary evidence is received in the PIfative Courts jn

India observed upon, and such practice condemned, as involving unnecessary

costs, the administration of justice requiring that the admission of docu-

ments should be strictly conducted with reference to the principles regulating

the admission of evidence [7 Moo. Ind. App. 1681.

This was an action brought by the Respondents, the heirs of Maharajah Mitter-

jeet Sing, to recover from the Appel~ant and others, their respective shares of the

costs of an appeal to England realized from Maharajah Hetnarain Sing, in erecution

of the decree of the Privy Council. The appeal was confined to the claim against

the Appellant for his share of the costs.

The question in the case depended on the single issue raised; whether a docu-

ment dated the 15th of May, 1832, produced and alleged by the Appellant to haver

been written by &faharajah Mitterjeet Sing, the deceased father of the Respondents,

was a genuine ~ n s t r ~ e n t .

In the year 1817, Maharajah Mitterjeet Sing and Cl491 two others, nakned Meer

AbdoolIah and Gokhul Dasg, purchased a t an auction sale Tatook BeLkhurah, in

* Present : The Right Hon. Dr. L u s h i n ~ n , the Sight Hon. I". Pemberton Leigh,

the Right Hon. Sir Edward Ryan, and the Right Hon. Sir Cresswelf Cresswefl.

P.C. VIII, 265 9U'