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PETITIONER: THAKUR RUDRESHWARI PRASAD SINHA

       Vs.

RESPONDENT: SRIMATI RANI PROBHABHATI AND OTHERS

DATE OF JUDGMENT: 26/10/1951

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN SASTRI, M. PATANJALI MUKHERJEA, B.K. BOSE, VIVIAN

CITATION:  1952 AIR    1            1952 SCR   64

ACT:     Ghatwali tenures --Nature and incidents--Alienability of Zemindari Ghatwalis--Taluka Kakwara whether alienable.

HEADNOTE:     Taluk  Kakwara  was in its origin a  Zemindari  Ghatwali tenure  and continued to be so, and was in fact  treated  as such  ever  since.  Even if by virtue  of  Captain  Browne’s Sanad it became     a Government Ghatwali tenure, then under the  Sanad of Raja Kadir Ali or after the Permanent  Settle- ment at any rate, it became a Zemindari Ghatwali and as such alienable with the consent of the Zemindar according to  the custom of Kharakpur judicially recognised [Nature and incidents of Ghatwali tenures discussed].

JUDGMENT: CIVIL APPELLATE  JURISDICTION:  Civil Appeal No. 75 of 1950.     Appeal from the Judgment of the High Court of Judicature at  Patna  dated 22nd November, 1944, in Appeal No.  238  of 1940  arising  out of order dated 13th July,  1940,  of  the Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939. The  facts of the case appear from the judgment. The  appeal was originally preferred to the Privy Council and was subse- quently transferred and heard by the Supreme Court.     N.C. Chatterjee  (B. Sen, with him)  for  the appellant.         B.C  De (Raghunath Jha, with him) for  the  respond- ents. 65     1951. October 26.  The Judgment of the Court was  deliv- ered by     DAs J.--This appeal has come up for hearing before us on transfer  from  the  Privy Council.  The  appellant  is  the present holder of Taluk Kakwara which appertains to  Mahalat Kharakpur.  The respondents represent the Banaili Raj  which has also acquired the Mahalat of Kharakpur.  The respondents obtained a decree for Rs. 11,587-14-6 against the  appellant for  arrears of rent and cess and applied for  execution  of their  decree by the attachment and sale of  Taluk  Kakwara.

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On  August 29, 1939, the appellant judgment-debtor filed  an objection  under section 47 of the Code of  Civil  Procedure alleging  that as Taluk Kakwara was held on Ghatwali  tenure it  could not be sold in execution of a money decree.   This objection was rather too wide, for all lands held on Ghatwa- li tenure were not necessarily inalienable.  Indeed, in Kali Pershad Singh v. Anund Roy(1) which related to the  Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been  unquestioned transfers and sales applicable to  Mahals in  Kharakpur and it was held by the Privy Council that  the true  view to take was that such a tenure in  Kharakpur  was not inalienable, and might be transferred by the Ghatwal  or sold in execution of a decree against him, if such  transfer or  sale  was assented to by the Zamindar.  A  sale  at  the instance  of the Zamindar in execution of a decree  for  ar- rears  of  rent necessarily implies the  existence  of  such assent.  In  the  later case of Narayan  Singh  v.  Niranjan Chakravarti(2) which related to the Ghatwali Mahal of  Hand- wa,  Lord Sumner recognised that the decision of  the  Privy Council in the Kharna Ghatwali Mahal case was fully support- ed  by  the  evidence adduced in that  case  and  that  that authority had been repeatedly followed and applied in India, and,  so  far as the reports showed, without  proof  of  the custom  being  required over again.  Lord  Sumner,  however, pointed out that (1) (1887) L.R. 15 I.A. 18; I.L.R. 15 Cal. 471. (2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat. 184; A.I.R. (1924) P.C. 5.       9 66 it  was plain that as the custom depended on proof,  and  as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it could have no reference to  Ghat- wali  tenures not under him nor forming part of his  Zamind- ari.  The Privy Council in the later case referred to  above saw no ground for thinking that the custom of Kharakpur  had any  application  to Ghatwali tenures, which,  like  Handwa, were  independent  of the Kharakpur Zamindari,  even  though they  might  be not far off Kharakpur. In short, it  may  be said  to be well established--and the contrary has not  been urged  before  us  --that Ghatwali tenures  held  under  the Zamindar of Kharakpur were, by custom judicially recognised, alienable  with  the assent of the Zamindar  while  Ghatwali tenures  like Handwa held under the Government  direct  were inalienable. In this state of the authorities, the appellant judgment-debtor  on May 31, 1940, filed a fresh petition  of objection  under section 47 of the Code claiming that  Taluk Kakwara  was held under a Government Ghatwali  tenure.   The principal  question  for determination  in  those  execution proceedings   was  whether  Taluk Kakwara was  a  Government Ghatwali,  as alleged by the appellant  judgment-debtor,  or was  a Zamindari Ghatwali held under themselves, as  claimed by the Respondents decree-holders.     The  learned Subordinate Judge held that  Taluk  Kakwara was  a  Zamindari Ghatwali under the Raja of  Kharakpur  and overruled the  objection of the judgment-debtor.  The  judg- ment-debtor appealed to the High Court.  The appeal came  up for hearing in the first instance before a Bench  consisting of  Manohar Lal and Shearer JJ. Manohar Lal J. came  to  the conclusion that Taluk Kakwara was a Government Ghatwali  and was  inclined to allow the appeal. Shearer J. took the  view that while Taluk Kakwara was at one time a Government  Ghat- wali, it ceased to be so and became and remained a Zamindari Ghatwali  and  as  such was alienable and  was  inclined  to

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dismiss  the appeal.  In view of this difference of  opinion the appeal was referred to Chatterjee J, as the third Judge 67 Chatterjee J. held that Taluk Kakwara was a Zamindari  Ghat- wali  land as such alienable and accordingly  dismissed  the appeal.  The judgment-debtor obtained leave to appeal to the Privy  Council.  As  already stated, the appeal has come  up for hearing before us on transfer from the Privy Council.     Although  the exact origin of the Ghatwali  tenures  was generally  lost in the confusion and obscurity of the  trou- blous  times which preceded the British rule, the nature  of the  Ghatwali tenures and their purposes and incidents  have been  fully established by a series of decided  cases.   The position  of the Zamindars in or about 1765, when  the  East India Company secured the Dewani of Bengal, Bihar and  Oris- sa,  has  been described by the Right Hon’ble  T.  Pemberton Leigh (who subsequently became Lord Kingsdown) in his  judg- ment  in the case of Raja Lelanund Singh v. Government  Ben- gal(1):     Many  of the greater Zamindars within  their  respective Zamindaries,  were entrusted with rights, and  charged  with duties, which properly belonged to the Government.  They had authority to collect from the Ryots a certain portion of the gross  produce  of the lands. They, in many  cases,  imposed taxes  and levied toils, and they increased their income  by fees, perquisites, and similar exactions, not wholly unknown to  more  recent times and more civilised nations.   On  the other hand, they were bound to maintain peace and order, and administer  justice within their Zamindaries, and, for  that purpose,  they had to keep up Courts of civil  and  criminal justice, to employ Kazees, Canoongoes, and Thanahdars, or  a police  force.   But while as against the  Ryots  and  other inhabitants  within their territories, many of these  poten- tates  exercised  almost  regal  authority,  they  were,  as against the Government, little more than stewards or  admin- istrators. Their Zamindaries were granted to them only  from year  to year; the amount of their jumma, or yearly  payment to  Government, was varied, or might be varied annually;  it was an arbitrary sum fixed by the Government (1) (1855) 6 M.I.A. 101 at p. 108. 68 officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the  Zamindar for his maintenance, and for the expenses of the  collection and  of  discharging  the public duties with  which  he  was entrusted by the Government." Further  down  his Lordship observed  "Besides the disorder which prevailed generally ’  ’Besides the  disorder  which prevailed generally through  the  Prov- inces,   particular Districts  were exposed to ravages of  a different  description.  The mountain or hill  districts  in India were at this time inhabited by lawless tribes, assert- ing  a  wild  independence, often of a  different  race  and different  religion from the inhabitants of the plains,  who were frequently subjected to marauding expeditions by  their more warlike neighbours. To prevent these incursions it  was necessary to guard and watch the Ghats, or mountain  passes, through  which  these hostile descents were  made;  and  the Mahomedan  rulers established a tenure called Ghatwali  ten- ure,  by which lands were granted to individuals,  often  of high  rank, at a low rent, or without rent, on condition  of their performing these duties, and protecting and preserving order in the neighbouring Districts."     This description of the nature and incidents of a  Ghat- wali  tenure was adopted by the High  Court Garth  C.J.  and

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McDonell  J.)  in  Leelanund  Singh  v.  Thakoor   Munranjan Singh(1)  which was a case between the respective  predeces- sors of the parties before us and related to this very Taluk Kakwara. Said the learned Chief Justice at p. 255:-     "And  it  is very necessary for our present  purpose  to bear  in mind what was the true origin and nature  of  these tenures.   They were created by the Mahomedan Government  in early  times, as a means of providing a police and  military force to watch and guard the mountain passes from the  inva- sions  of  the lawless tribes who inhabited  the  hill  dis- tricts.  Large grants of land were made in those days by the Government. (1) (1877) I.L.R. 3 Cal. 251. 69 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 re-granted 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 consider- ation of these military services, and provided (each accord- ing  to  the extent of his holding) a  specified  number  of armed men to fulfil the requirements of the Government".     As  has  been said by Lord Kingsdown  in  Raja  Lelanund Singh v. The Government of Bengal (supra) at p. 125  "though the  nature and extent of the right of the Ghatwals  in  the Ghatwali villages may be doubtful, and probably differed  in different districts and in different families, there clearly was  some  ancient law or usage by which  these  lands  were appropriated  to reward the services of  Ghatwals;  services which, although they would include the performance of duties of police, were quite as much in their origin of a  military as a civil character, and would require the appointment of a very  different class of persons from ordinary police  offi- cers".  Accordingly  his Lordship found that the  office  of Ghatwal  in the Kharakpur Zamindari was frequently held’  by persons of high rank. In Munrunjan Singh v. Raja Lelanund(1) which was also a case between the respective predecessors of the parties before us and related to this very Taluk  Kakwa- ra, the High Court at p. 86 observed :-     "It  appears that there is considerable variety  in  the tenures known under the general name of Ghatwali in  differ- ent parts of the country.  They all agree in this that  they are  grants of land situated on the edge of the hilly  coun- try, and held on condition of guarding the ghats or  passes. Generally,  there seems to be a small quit-rent  payable  to the  Zamindar in addition to the service rendered, and  with the view of marking (1) (1865) 3 W.R. 84. 70 the  subordination of the tenure.  But in  some  Zamindaries and  putnees  these tenures are of a major, in others  of  a minor, character.  Sometimes the tenure of the great  Zamin- dar himself seems to have been originally of this character. More  frequently large tenures, consisting of several  whole villages, are held under the Zamindar."     Further down their Lordships said :    "These  inferior Ghatwalis seem to be those in which  the Zamindar  or ruling power deals direct with the  individuals who do the work, assigning them pieces of land in the estab- lished villages. The larger tenures were more of the  nature of semi-military colonies, where a chief with his  followers were settled down in parts of the country so unsafe that  it

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could not be otherwise occupied."    The law relating to Ghatwali tenures has been dealt  with at  considerable  length by Lord Sumner in Narayan Singh  v. Niranjan  Chakravarti (supra). The variety of conditions  of service  to be rendered by a Ghatwal was thus summed  up  by his Lordship at pp. 80-51 :-   "In itself ’ghatwal’ is a term meaning an office held by a  particular person from time to time, who is bound to  the performance  of its duties, with a consideration to  be  en- joyed in return by the incumbent of the office.  Within this meaning  the utmost variety of conditions may  exist.  There may  be  a mere personal contract of employment  for  wages, which  take the form of the use of land or an actual  estate in  land,  heritable  and perpetual,  but  conditional  upon services certain or services to be demanded.  The office may be public or private, important or the reverse. The Ghatwal, the guard of the pass may be the bulwark of a whole country- side  against  invaders; he may be merely a  sentry  against petty  marauders  ;he may be no more than a  kind  of  game- keeper,  protecting the crops from the ravages of wild  ani- mals.  Ghatwali duties may be divided into police duties and quasi-military duties, though both classes have lost much of their importance, and the 71 latter  in any strict form are but rarely  rendered.  Again, the  duties  of the office may be such  as  demand  personal discharge  by the Ghatwal and personal competence  for  that discharge;  they may, on the other hand, be such as  can  be discharged  vicariously, by the creation of  shikmi  tenures and  by  the appointment and maintenance  of  a  subordinate force,  or they may be such as in their nature only  require to  be provided for in bulk. It is plain that where a  grant is  forthcoming to a man and his heirs as Ghatwal, or is  to be presumed to have been made though it may have since  been lost,  personal performance of the ghatwali services is  not essential so long as the grantee is responsible for them and procures them to be rendered: Shib Lal Singh v. Moorad Khan, (1868) 9 Suth. W.R. 126."     Then  his  Lordship pointed out that  the  superior  who appointed  the  Ghatwal might be the ruling power  over  the country  at large, the landholder responsible by custom  for the maintenance of security and order within his estates, or simply the private person, to whom the maintenance of watch- men  was,  in the case of an extensive  property,  important enough  to  require the creation of a regular  office.   Al- though personal service by the employee and personal  selec- tion  and appointment by the employer might have been  ordi- narily  essential incidents of the relationship, yet it  was not invariably so as appears from the last quotation as well as from the following passage in the judgment by Lord Sumner at p. 52 :-     "On  the  other  hand, there are  great  estates,  whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcom- ing,  either  regularly  or when required;  services  it  is impossible  for the proprietor himself to render in his  own person,  and  which become possible to him and to  those  to whom  he renders them simply by virtue of his possession  of the  lands thus granted. In such eases 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 72 office  to  descend  to some member of his  family,  if  not necessarily to the senior member. Thus in Kharakpur ghatwals

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have a perpetual hereditary tenure at a fixed jama:  Munrun- jun Singh v. Lelanund Singh."     The  requirement of rendering of services by  a  Ghatwal naturally gave rise to a further incident of such a  tenure, namely,  the  inalienability of the Ghatwali lands,  for  an alienation  of the Ghatwali lands might easily  deprive  the Ghatwal  of  the whole of the means provided to  enable  the services  to  be rendered.   This  consideration  peculiarly applied  where the superior, by whom the Ghatwals  were  ap- pointed  and of whom the Ghatwali lands were held.  was  the ruling power itself.  As has already been stated above,  the rigour  of this incident of inalienability had, however,  in the  case  of Kharakpur Zamindari Ghatwalis,  given  way  to custom  recognised as well established in the case  of  Kali Petshad  v.  Anund Roy (supra), which  has  been  repeatedly followed  and applied in India without proof of  the  custom being required over again.     From what has been stated above, it clearly follows that Ghatwali  tenures originated during the Moghul period,  that although  the services included police duties, they were  in their origin just as much of a military as a civil character and  that  the tenure could be granted by the  ruling  power directly to the Ghatwal who was to render the services so as to  establish a direct privity between the ruling power  and the  Ghatwal or it could be granted by the Zamindar for  the protection  of his Zamindari or for. enabling him to  render the police and military services ’to the ruling power  which he was bound to do under the terms of the grant of Zamindari to  him.  The question then arises --which of these  catego- ries the Ghatwals of Kharakpur come under.     Mahalat Kharakpur was an extensive estate and apparently owed  allegiance,  real or nominal, to the  Moghul  Emperor. There  is  no evidence on record showing on what  terms  the Raja  of Kharakpur held the estate under the Moghuls and  it is difficult to say, 73 with  any amount of certainty, what kind or amount of  serv- ices,  police  or  military, he had to render  to  the  then ruling power.  It may, however, be safely stated that,  like all  other Zamindars, the Raja of Kharakpur had to  preserve internal peace and order by maintaining sufficient Thanas or police  establishments and to protect the tenants and  other inhabitants  from the incursions of lawless tribes from  the neighbouring  hills by providing or arranging for  a  suffi- cient  military force.  It could not be expected that a  big Zamindar like the Raja of Kharakpur would render the  police or  military  services personally and  consequently  it  was natural  for him to appoint his own Ghatwals to protect  his Zamindari  and  to  render services for him  to  the  ruling power.  As said by Lord Kingsdown in Raja Lelanund Singh  v. The  Government  of  Bengal (supra) at p. 102  it  was  well established that long before 1765 the Zamindars of Kharakpur had  created Ghatwali tenures for the purpose of  protecting their Zamindaries from the attacks of mountaineers and other turbulent  people  in  their neighborhood.  Lord  Sumner  in Narayan Singh v. Niranjan Chakravarti (supra) at p. 68  also recognised that long before 1765 Ghatwali tenures under  the Zamindar of Kharakpur had been created by the various  hold- ers  of  those lands for their own purposes and as  late  as 1770-1785  Mr. Cleveland, who managed the estate during  the minority of Kadir Ali, followed the same  policy.  In Naray- an  Singh  v.  Niranjan Chakravarti (supra) at  p.  50  Lord Sumner said :-     "In  the Sonthai Parganas there are for  practical  pur- poses  three  classes of Ghatwali  tenures:  (a)  Government

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ghatwalis created by the ruling power; (b) Government  ghat- walis, which since their creation and generally at the  time of the Permanent Settlement have been included in a  zamind- ari estate and formed into a unit in the assessment; and (c) zamindari  ghatwalis, created by the zamindar or his  prede- cessors and alienable with his consent. The second of  these classes is really a branch of the first."     The  question,  then, is--to which  class  the  Ghatwali tenure of Taluk Kakwara, with which we are concerned         10 74 in this case, belongs--whether it was a Government  Ghatwali or  was  one  of the many Ghatwali tenures  created  by  the Zamindars of Kharakpur.     Happily, we do not have to speculate. The problem before us  is  not to infer the true nature and  incidents  of  the original  grant which could only be collected from the  evi- dence  of what was done and left undone in  connection  with Taluk Kakwara by the ruling power and its officers.  We have in evidence before us the authentic texts of the two  Sanads relating to the Kakwara Ghatwali and we also have the provi- sions of the Permanent Settlement Regulation. The nature and incidents  of that tenure must rest upon the true  construc- tion and import of those grants as well as on the manner  in which it was dealt with at the time of the Permanent Settle- ment.      It  will  be convenient and useful, at this  stage,  to give  a  very short history of Mahalat Kharakpur  and  Taluk Kakwara.  In 1765 the East India Company secured the  Dewani of  Bengal,  Bihar and Orissa from the Moghul  Emperor.  The accession  of  Dewani was in effect a cession of  the  three provinces  and the East India Company virtually  became  the sovereign ruling power over those territories. At that  time one  Mozaffar Ali was the Raja of Mahalat  Kharakpur.  Taluk Kakwara  appertained  to Mahalat Kharakpur.   In  1766  Raja Mozaffar Ali rose in rebellion against the East India Compa- ny.  A  strong military force under the command  of  Captain Browne was sent for quelling the revolt. Eventually, in 1768 Raja  Mozaffar Ali was subdued and imprisoned. The Raja  was deposed and deprived of his estate and the East India Compa- ny  took direct charge of Mahalat Kharakpur and  managed  it through its officers until the Mahalat was restored to  Raja Kadir  Ali, the grandson of Raja Mozaffar Ali. In 1776  Cap- tain Browne, who was then in charge of the Mahalat,  granted an  Amalnama or Sanad (Exhibit 1) in respect of 22  villages to  two  persons Rankoo Singh and Bhairo Singh  at  a  fixed annual Jama of Rs, 245-12-15. That Sanad was in the  follow- ing terms: 75     "Seal  of Captain James Browne, head of jungletari  (low forest land). Know ye, the present and future Mutasaddis  of affairs,  Chaudhuris,  Kanungos, Zamindars and  Ghatwals  of Pargana Danda Sukhwara, Zila Jangal-tari.  appertaining   to Kharagpur,  Sarkar Monghyr, in the Province of Bihar.     From the beginning of 1184 Fasli, Taluka Kakwara, parga- na aforesaid, is let out in perpetual mukarrari, without any objection  or contention, to Rankoo Singh and Bhairo  Singh, ghatwals of the said Taluka, at a fixed jama of Rs.  245-12- 15  (rupees  two hundred and forty-five,  annas  twelve  and gandas  fifteen) in current coins noted in the  endorsement, consolidated  from all sources, including  malwajhat,  sair- wajhat and all grains, and excluding the perquisites of  the zamindari,  nankar, chaudhuris and kanungos,  parganati  ex- penses,  lands given in charity, e.g.,  barhmotar,  shibotar and bishunparit lands, aima lands of jagirdars,  bargandazes

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(musketeers),  dhupars (?), mahus (?) etc. It  is  requisite that  they  should peacefully cultivate (torn) and  pay  the Government  (torn),  according to the kabuliat,  year  after year  and  crop after crop, into  the  Government  treasury. They should make such effort as to increase the  cultivation of the said Taluka from day to day.  They should hold  them- selves  responsible for deficient cultivation.  They  should keep  the  tenants  pleased and contented  with  their  good treatment and should not oppress any one and make  excessive demands. They should not fix the allowance of the  jagirdars and  bargandazes etc., over and above the rent. They  should bear this in mind. They should provide for the protection of the tenants within their jurisdiction and of the villages of the said Taluka. Whenever the chakars (?)be sent for by  the huzur, the sardar (?) should appear before him with his men. If  at  any  place, within their  boundary  limits,  murder, disturbance,  dacoity, theft, highway robbery etc., be  com- mitted,  and  the culprit be traced or be  found  conspiring advisedly  with any one and the Government work suffer,  and proper  punishment be meted out after inquiry, they will  be responsible (?) by virtue of their 76 position, and will be dismissed from their post and will not be  reinstated (unintelligible). The amlas of the  zamindars of  the  said Taluka should on knowing  the  said  istimrari mukarrari  rent to have been fixed, continue to receive  the mukarrari rent from year to year and should not demand  even a  farthing in excess. They should treat this as  peremptory and act as written herein.     Dated the 25th Shanwal, 17, corresponding to the 7th Pus Bangla, 1183 Fasli.              Endorsement.     Taluka Kakwara, pargana Danda Sukhwara, appertaining  to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the  province of  Bihar,  is let out in perpetual mukartari,  without  any objection  or contention, to Rankoo Singh and Bhairo  Singh, Ghatwals,  at  a  fixed jama of Rs.  245-12-15  (rupees  two hundred  and fortyfive, annas twelve and gandas fifteen)  in current  coins  as specified below,  consolidated  from  all sources,  including malwajhat, sair-wajhat, and all  grains, excluding the perquisites of the zamindari, nankar, Chaudhu- ris  and Kanungos, expenses of the said Taluka, lands  given in  charity,  (e.g.)barhmotar,  shibotar  and   Bishun-parit lands,  jagir lands of jagirdars,  bargandazes,  dhupars(?), maimas (?), etc.   Fixed jama.   Rs. 245-12-15 gandas." " Then followed the specification of 22 Mouzas or  villages. It  will be noticed that the grant was made to Rankoo  Singh and Bhairo  Singh described as "ghatwals of the said  Taluk" which suggests that those two persons were already Ghatwals. The duties generally imposed on the grantees and in particu- lar the duty of providing protection for the tenants and  of appearing before Huzur with his men did not, in the words of Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at  p. 46, "go beyond duties then  ordinarily discharged  by Zamindars." There was no stipulation either in the main body of 77 the grant or in the endorsement at the foot for  maintaining a  regular body of a definite number of archers and  barkan- dazes  such as is to be usually found in  ordinary  Ghatwali grants  and  indeed such as is in fact to be  found  in  the subsequent grant of Raja Kadir Ali with respect to this very Taluk  Kakwara.  Finally, the admonition at the end  of  the

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principal  paragraph  to the amlas of the Zamindars  of  the said  Taluk  to receive the fixed mukarrai rent and  not  to demand  even  a farthing in excess may well be  regarded  as indicating  that the Zamindar was really interested  in  the grant.   In  the premises, the observation  of  the  learned Judges  of the High Court of Calcutta in Munrunjun Singh  v. Raja  Lelanund (supra) at page 85 that the Sanad of  Captain Browne  seemed  to them "to be rather a confirmation  of  an existing  tenure than the creation of a new one" appears  to have  considerable  force. This view of the matter  will  be quite consistent with the subsequent history of the  Kakwara Ghatwali which will be presently related.     It  is,  however, pointed out that at the date  of  this Sanad there was in fact no Raja of Karakpur and that as  the Mahalat was being administered and managed by Captain Browne on  behalf of the East India Company the grant made  by  him must be taken as creating a Government Ghatwali tenure.  The Seal  at  the top of the Sanad is said to indicate  that  in granting  the Sanad in his capacity as Sardar of the  Jungle Terai  Captain  Browne was acting for and on behalf  of  the East  India Company. The Sanad was addressed to the  present and  future  Mutasaddis of  affairs,  Chaudhuris,  Kanungos, Zamindars  and Ghatwals of Pargana Danda Sukhwara and it  is urged  that if Captain Browne had been acting on  behalf  of the  Zamindar  of  Kharakpur, addressing the  Sanad  to  the Zamindars  would have been wholly inappropriate.   The  fact that  the grant was to commence from the beginning  of  1184 Fasli  also militates against its being only a  confirmation of  a  pre-existing Ghatwali tenure. The  direction  to  pay according to the Kabuliat, year after year, crop after crop, into the Government treasury clearly suggests 78 that the Sanad created a Government Ghatwali tenure. In  the Moghul period there was no fixity of the jama and the grants were  made annually and the jamas were liable to be  varied. The  provision of a fixed annual jama in this Sanad  cannot, therefore, it is argued, be regarded as a confirmation of an existing  grant  on a fixed jama. Taking all  these  matters into  consideration Shearer and Chatterjee JJ. came  to  the conclusion  that under Captain Browne’s Sanad of 1777  Taluk Kakwara became a Government Ghatwall. This line of reasoning is  not without force or cogency although it may not  neces- sarily be conclusive, for Captain Browne, undoubtedly acting for the East India Company, might well have issued the Sanad during the period of interregnum. on behalf or in the inter- est  of  whoever  might eventually become  the  Zamindar  of Kakwara.  If  the  matter rested only with  this  Sanad  and nothing further had happened then perhaps it might have been said with some plausibility that a new tenure was created by the  ruling power by this Sanad, but the matter does not  in fact  rest with only Captain Browne’s Sanad, and we have  to see how this Taluk Kakwara has been subsequently dealt  with and what effect the subsequent events have on the status and rights of the Ghatwal of this Taluk.     It appears that in 1780 the East India Company  restored Mahalat Kharakpur to Kadir Ali, the grandson of the  deposed Raja Mozaffar Ali.  Although the formal order of the  Gover- nor-General came in 1781, the Mahalat was actually  restored to  Raja Kadir Ali in 1780. At that time Raja Kadir Ali  was only  a boy of five or six years of age and  Mr.  Cleveland, the  Collector of Bhagalpur, managed Mahalat  Kharakpur  for and  on behalf of the minor Raja Kadir Ali.  On January  17, 1780, a fresh Sanad (Exhibit 1 (a)) was granted in the  name and  under the Seal of Raja Kadir All to the same  two  per- sons, Rankoo Singh and Bhairo Singh, in the following  terms

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:--     "(Seat  of Raja Qadir Ali, under Emperor Shah Alam,  the Victorious--1193). 79        Know ye, the present and future mutasaddis of affairs and the gumashtas holding the posts of Chaudhuris and Kanun- goes  of Pargana Danda Sukhwara appertaining to mahals  Kha- ragpur, Sarkar Monghyr, in the Province of Bihar.   The Ghatwali service tenure of Taluka Kakwar  appertaining to  the   said pargana is held, under a   Sanad,  by  Bhairo Singh  and  Rankoo Singh, with 177  musketeers  and  archers including sardars, on the condition of allegiance and loyal- ty  to  the Sarkar.  Of late also, (the said  tenure)  being upheld  and kept intact as usual, according to the  endorse- ment, is assigned and granted with effect from the beginning of the Kharif season of 1189 Fasli Rajwara corresponding  to 1188  Fasli Mughlana.  They should discharge the duties  and obligations  with honesty and fidelity and keep the  tenants pleased and contented with their good treatment, and  should watch  the ghats and chaukis very carefully and  cautiously, so that no thief and night robber may come around and  about them.   If, God forbid, the properties of any one be  stolen or plundered and cattle be concealed or murder be  commited, they  should  trace the thieves and night robbers  with  the properties  intact, restore the properties to the owner  and produce  the party of the mischief mongers before the  Huzur and  prove  the murder. In case they fail to  find  out  the thieves and to prove the murder and the concealment  (theft) of cattle, they should hold themselves responsible therefor. They  should continue to pay the quit-rent to the Sarkar  as usual.  When summoned, they should appear before  the  Huzur with the body of men. It is desired that you should consider them  as permanent Ghatwals of that place and maintain  them in  their possessions and you should not fail to give  ’them sound  advice so as to ensure by all means the advantage  of the Sarkar and the well-being of the tenants. Treat this  as peremptory and act accordingly.    Dated,  the 17th seventh (sic) day of the holy  month  of Muharram of  year 22, corresponding to 194 A.H. 80 Endorsement     The  Ghatwali service tenure of taluka Kakwara.  Pargana Danda  Sukhwara,  is granted as before to Rankoo  Singh  and Bhairo  Singh  with  172 Musketeers  and  archers  including sardars  with effect from the beginning of the karif  season of 1189 Fasli, Rajwara, corresponding to 1189 Fasli  Mughla- na,  on the condition of allegiance and loyalty to the  Sar- kar. Above-named persons (sic)--7   172 Musketeers and Archers--165 Rs.a.d.                                                           245-12-1 5 Fixed perpetual quit rent ...                                                           215- 0-15 Rent             ... Zamindari 30-12- 0 Rs. a. d.                            Rs. a.d. By  Bhairo  Singh   178- 3- 5         By  Rankoo  Singh  ... 67-9-10)                  155-14-15            Rent                .. 59-2- 0

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Rent      ... Zamindari   ...     22-  4-10           Zamindari        ... 8-7-10."’     Then  followed  a list of 16 Mauzas given in  Jagir.  If Taluk  Kakwara  was,  in its origin,  a  Zamindari  Ghatwali created by the Zamindar of Kharakpur and if Captain Browne’s Sanad only confirmed that existing tenure during the  inter- regnum  when he was in charge of the entire Mahalat of  Kha- rakpur  and managed it on behalf of the East  India  Company but in the interest of whoever eventually became the Raja of Kharakpur, then on the restoration of the Zamindari to  Raja Kadir Ali he would naturally clarify the position and status of  the Ghatwals under him by issuing fresh Sanads in  their favour.  In this view of the matter Raja Kadir  Ali’s  Sanad only  regularised the original status of Taluk Kakwara as  a Zamindari  Ghatwali  tenure and specified  the  terms   more clearly and explicitly.     It  is,  however, contended on behalf of  the  appellant that the Sanad of Captain Browne created a Government  Ghat- wali tenure and Raja Kadir Ali’s Sanad was nothing more than a confirmation of that Government Ghatwali tenure.  Reliance is  placed on the inscription in the seal at the  top  which refers  to Emperor Shah Alam the Victorious and it  is  con- tended that this clearly indicates that this Sanad was also 81 intended  to be a Government grant. We are unable to  accept this contention as sound. The reference to Emperor Shah Alam the  Victorious  might be nothing more than  a  mere  formal recognition of a titular figurehead.  The statement that the Ghatwali  service tenure of Taluk Kakwara was "held under  a Sanad  by Bhairo Singh and Rankoo Singh with 172  Musketeers and  Archers"  etc.  may well be taken as  referring  to  an earlier  Sanad which specified the number of Musketeers  and Archers  and need not necessarily refer to Captain  Browne’s Sanad  of 1777 in which there was, as has been pointed  out, no  specification of any number of Musketeers  and  Archers. Under  this  Sanad the grantees’ tenure commenced  from  the beginning  of  the  Kharif season of  1189  Fasli,  Rajwara, corresponding to 1188 Fasli Mughlana. This date of commence- ment  of the tenure is different from the date of  commence- ment  mentioned  in  Captain  Browne’s  Sanad.   In  Captain Browne’s Sanad the fixed Jama of Rs. 245-12-15 was exclusive of Zamindari Rasoom whereas under Raja Kadir Ali’s Sanad the fixed perpetual quit rent of Rs. 245-12-15 was inclusive  of Zamindari Rasoom, the rent being Rs. 215-0-15 and  Zamindari Rasoom being Rs. 30-12-0.  What is still more significant is the apportionment of the quit rent between the two  grantees which  is to be found towards the end of the Sanad. Such  an apportionment  was  wholly inappropriate in the  case  of  a merely  confirmatory grant. Again, this grant comprised   16 Mauzas  whereas  Captain Browne’s Sanad covered  22  Mauzas. Even the names of many of the 16 Mauzas are not to be  found in  the  specification  of  Mauzas at  the  end  of  Captain Browne’s Sanad. The further significant fact is that in  the 16 Mauzas set out at the foot of Raja Kadir Ali’s Sanad  the two  grantees  were  shown to have  different  and  distinct shares  in  the different Mauzas.  In some  cases,  even  an entire  Mauza was allotted exclusively to one or the  other. Further,  if  Captain Browne’s Sanad  created  a  Government Ghatwali  tenure, it is not intelligible why Raja Kadir  Ali should be called upon to confirm the grant with which he was not directly or indirectly         11 82 concerned.  Again, it is well known that at this time 98  of

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the Ghatwals of Kharakpur took their Sanads from Raja  Kadir Ali while only three big Ghatwals, namely, those of  Lachmi- pur,  Handwa and Chandan Katoria took their Sanads not  from Raja Kadir Ali but from Mr. Dickenson who succeeded  Captain Browne.   This  distinction  can only be  explained  on  the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger  Ghat- walis  were treated as Government Ghatwalis. The  fact  that Mr. Cleveland, the Collector of Bhagalpur, was at this  time in charge and management of Mahalat Kharakpur, that these 98 Sanads  were  granted in the name of Kadir  Ali  during  the period of Mr. Cleveland’s management and the fact that  ever since 1780 nobody on behalf of the Government has questioned the  propriety  of these Sanads as  evidencing a   grant  of Zamindari  Ghatwali clearly establish that Raja Kadir  Ali’s Sanads  really regularised the position and status of  these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth  held. On  the  other  hand, even if it be  accepted  that  Captain Browne’s Sanad created a Government Ghatwali tenure then, in the  language  of Lord Sumner in Narayan Singh  v.  Niranjan Chakravarti (supra) at p. 54 it might well be said that Raja Kadir  Ali’s Sanad  issued  during the time  Mr.  Cleveland, the  Collector  of Bhagalpur, was managing  the  Mahalat  of Kharakpur,  and never objected to or questioned at any  time thereafter  by the Government "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  the Ghatwali and,  therefore, the original  Govern- ment Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place.     The  matter  does not even rest’ with Raja  Kadir  Ali’s Sanad.  In 1789 or 1790 there was a decennial settlement  of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent  under  the permanent Settlement Regulation  I  of 1793.  As Lord 83 Kingsdown pointed out in Raja Lelanund Singh v. The  Govern- ment of Bengal (supra) at p. 114, it was beyond dispute  and indeed  fairly admitted that the Ghatwali lands formed  part of  the  Zamindari and were included in and covered  by  the assessment  of  the Zamindari.  This was recognised  by  the High Court in Munrunjun Singh v. Raja Lelanund (supra)  when they  said that there was no doubt that the tenure  was,  at the  Permanent  Settlement,  included in  the  Zamindari  of Kharakpur and that the Jama was payable to the Zamindar.  On appeal,  their Lordships of the Privy Council  also  pointed out that the claim of the Government to resume and  reassess the  Ghatwali lands was dismissed upon the ground  that  the Taluk had been assessed to revenue and was a portion of  the Mal  land  of the Zamindar. In Leelanund  Singh  v.  Thakoor Munrunjun  Singh  (supra) Garth C. J. at p.  257  said  that there  could  be  no doubt that the time  of  the  Permanent Settlement  the Taluk Kakwara formed part of  the  Kharakpur Zamindari and that the holders of that Taluk were "dependent Talookdars" of that Zamindari.  The holders of Taluk Kakwara were certainly not independent Talookdars because the Zamin- dar  had  the beneficial interest in the  tenure  and  these tenures  were never registered as independent Taluks.   Lord Sumner described the attempt of Raja LelanundSingh to recov- er possession of Taluk Kakwara as an attempt on his part  to resume "his Shikmi Ghatwali lands."  Further, Captain Browne in his book "India Tracts" published in 1788 had shown  only Luchmipur,  Handwa and Chandan Katoria, all appertaining  to Purgunnah  Kharakpur,  as three Ghatwalis under  the  Jungle

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Terry  Collector.  Kakwara was not shown in that  list.   On February 24, 1860, a list (Exhibit D)  of  Ghatwali   Mahals appertaining  to  Kharakpur was prepared by  the  Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur. Kakwara  is item 73 in that list.  In 1863, at the  time  of the composition made between the Government and the Raja  of Kharakpur.. another list of Ghatwali Mahals appertaining  to Kharakpur  was prepared by the 84 Government  and  Kakwara  is item No. 40 in  that  list.  In neither  of  these lists did Lachmipur, Handwa  and  Chandan Katoria,  which  were  under the Collector,  find  a  place. Again,  the letters from the Collector of Bhagalpur  to  the Raja  of  Kakwara written in 1783 and 1808 set out  in  Lord Kingsdown’s  judgment in Raja Lelanund Singh v. The  Govern- ment  of  Bengal (supra) clearly show  that  the  Government recognised that the right of appointment and dismissal of  a Ghatwal  rested with the Raja of Kharakpur.  As Lord  Kings- down pointed out in Raja Lelanund Singh v. The Government of Bengal (supra) at p. 114, the Zamindars derived some benefit in  money  and also had the benefit of the services  of  the Ghatwals  and enjoyed the valuable right of  appointing  the individuals,  who, with the lands, were to take  upon  them- selves  the duties of the office. If the  Ghatwali  tenures, created  by  the  Sanad of Raja Kadir  Ali  were  Government Ghatwali  tenures, it is not intelligible how  the  Zamindar would have the right to appoint or dismiss the Ghatwal.   On a  consideration  of the facts and the  circumstances  noted above,  we  are of opinion that Taluk Kakwara  was,  in  its origin,  a Zamindari Ghatwali tenure and continued to be  so and was in fact treated as such down to the present time and further that even if by virtue of Captain Browne’s Sanad  it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali, or, at any rate, after the Permanent Settle- ment, Taluk Kakwara became a Zamindari Ghatwali and as  such alienable with the consent of the Zamindar according to  the custom of Kharakpur judicially recognised.     It is quite clear to us that the conclusions arrived  at by us are in no way inconsistent with the judicial decisions which have been cited before us.  In Raja Lelanund Singh  v. The  Government of Bengal (supra) the Government  sought  to establish  their  right to resume and  assess  with  revenue Ghatwali  lands appertaining to the Zamindari of  Kharakpur. The Government claimed the right under Regulation I of 1793, section 8, clause (4), and contended that before the 85 Permanent  Settlement the Zamindar used to  appropriate  the produce  of the Ghatwali lands in maintaining police  estab- lishments  and  that, as by that Regulation  the  Government undertook  the charge of maintaining the police,  the  lands become liable to resumption in addition to the jama assessed on the Zamindari and that the lama assessed on the Zamindari of Kharakpur did not include any sum assessed in respect  of the  produce appropriated for the maintenance of the  police establishments.   There were eleven suits against  11  Ghat- wals. The Raja of Kharakpur was not originally made a  party to the proceedings but he was eventually added as a party on his own application.  In 1885 a final judgment in favour  of the  Government was pronounced by the Special  Commissioner. The  Raja  of Kharakpur appealed. The Government  claim  was dismissed on the ground, first, that the Ghatwali lands were part of the Zamindari of Kharakpur and were included in  the Permanent  Settlement  of the Zamindari and covered  by  the jama assessed on that Zamindari and, second, that the  lands of  Ghatwali  tenure  were not liable  to  resumption  under

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clause  (4), section 8, Bengal Regulation I of 1793  as  in- cluded  in allowance made to Zamindars for thana  or  police establishments.   There is not only nothing in the  judgment of  Lord  Kingsdown which militates in any way  against  the view  that the Ghatwali tenures appertaining to the  Mahalat of  Kharakpur were Zamindari Ghatwali.  On the  other  hand, the  observations of his Lordship, some of which  have  been quoted above, clearly indicate that they were of the  nature of Zamindari Ghatwali over which the Zamindar had the  right of  appointment and dismissal and that they formed  part  of the  Zamindari and were included in and covered by  the  as- sessment of the Zamindari.     Munrunjan  Singh  v. Raja Lelanund Singh (supra)  was  a suit  by  the Zamindar of Kharakpur claiming  possession  of Taluk Kakwara on the allegation that the lands were held for police  services,  that  the appointment  and  dismissal  of Ghatwals rested with him, that he 86 had  compounded with the Government for a money  payment  in lieu of police services which he was bound to render through the  Ghatwals  and that those services being no  longer  re- quired,  he was entitled to resume the lands.  The  defences were that the Ghatwals were not lessees liable to  ejectment but held a permanent tenure, that it existed long before the Permanent Settlement being held at a fixed jama mentioned in the Sanads derived directly from the representatives of  the British  Government  and in  compensation  for  services  in guarding the mountainous country and the passes which  serv- ice they were always ready and willing to perform. If  Taluk Kakwara  was a Government Ghatwall, then the Zamindar  would have had no locus standi to maintain the suit for possession and  the  suit  should have been  dismissed  on  that  short ground,  but no such point was seriously taken and the  case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali.  The. principal Sudder Amin having decreed  the  suit, the defendant appealed. The  High  Court held that the contract between the Raja of Kharakpur and the Government  without authority of the legislature in  no  way affected  the statute and the rights of the Ghatwal and  the tenure in dispute was not a mere grant of land in payment of service  to be rendered during pleasure but was a  perpetual hereditary  holding  on a fixed jama, leaving  a  beneficial interest in the Ghatwal with a condition of service annexed. That decision was upheld on appeal by the Privy Council.     The  next  case concerning this very Taluk  Kakwara  was Leelanund Singh v. Thakoor Munrunjun Singh (supra) which was a  suit by the Zamindar of Kharakpur against the Ghatwal  of Kakwara  for a declaration of his right to enhance the  rent at a rate equivalent to the Ghatwali services which had been rendered unnecessary. Again, if Taluk Kakwara was a  Govern- ment  Ghatwali,  the Raja of Kharakpur would have  no  locus standi to claim an enhancement of rent in lieu of the  Ghat- wali  services This claim of the Raja of Kharakpur was  also dismissed.  There are positive observations 87 in  this case which indicate that Taluk Kakwara was  a  "de- pendent"  Taluk or, as Lord Sumner called it was a  "Shikmi" Taluk.     Learned  counsel  for  the  appellant  has  relied  very strongly  on two cases,  namely,  Narayan Singh v.  Niranjan Chakravarti (supra) and Rani Songbari Kumari v. Raja Kirtya- nand  Singh(1).  Both the cases related to the  Ghatwali  of Taluk  Handwa. The endeavour of learned counsel was to  show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the  same

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as the Sanad of Captain Browne and the confirmatory  Parwang of  Mr. Dickenson, the Collector of Bhagalpur,  relating  to Taluk  Handwa. In Narayan Singh v. Niranjan Chakravarti  the Subordinate  Judge  held that the tenure of Handwa  was  not Ghatwali tenure at all. The High Court, on appeal, held that the  parganah was.held. as.a Moghul Ghatwali  tenure  before cession  but that it became a Government Ghatwali  and  that nothing  had  been done to alter that position.  They  were, however,  of  opinion that Raja Udit Narayan Singh  did  not hold it as Ghatwal and that the heirs of Udit Narayan  Singh could  not  impugn the validity of the mortgage  created  by him.   This decision of the High Court was reversed  by  the Privy  Council.  In Rani Sonabati Kumari v. Raja  Kirtyanand Singh(1) Mr. Justice Fazl Ali elaborately discussed the  law relating to Ghatwali tenures. Learned counsel for the appel- lant  before  us  has relied on several  passages  from  the judgment  of Lord Sumner and from that of Mr.  Justice  Fazl Ali.   These  two decisions must be taken as  based  on  the construction  of the relevant Sanads, namely, the  Sanad  of Captain  Browne  and the Parwang of Mr.  Dickenson  and  the observations to be found in the judgments in those two cases must be read in the light of that construction. The position of Taluk Kakwara appears to us to be entirely different from that  of Taluk Handwa.  Mr. Justice Shearer in his  judgment refers to five points of distinction between the position of the two Ghatwals, namely---- (1) (1935) I.L.R. 14 Patna 70. 88     (1) The Ghatwals of Handwa never paid any Rasoom on  the amount of the land revenue assessed on the lands of Raja  of Kharakpur;     (2) The Ghatwal of Handwa formerly used to pay the  quit rent  directly into  the Government treasury;     (3) In more than one list of the Ghatwali tenures  under the  Kharakpur Raj prepared by the Collectors of  Bhagalpur, Handwa was not to be found;     (4) After the restoration of Kharakpur Raj, the Ghatwals of  Handwa instead of obtaining a Sanad from Raja Kadir  Ali obtained  a Sanad from the then Collector of Bhagalpur,  Mr. Dickenson; and      (5)  the claim made by Raja Kadir Ali to appoint a  new Ghatwal  of  Handwa on the occurrence of a  vacancy  in  the office was negatived by the Courts.     Likewise, Chatterjee J. in his judgment also points  out the essential differences in the status of the two Ghatwals. The  language used in the Sanad relating to Taluk Handwa  is somewhat different. There is no question of payment of  quit rent  to  the  Zamindar of Kharakpur.  Although  Handwa  was included in the Zamindari of Kharakpur, it was only done  so in a geographical sense and for fiscal purposes. The  annual jama of Handwa was never treated as a part of the Mal assets of  the  Raja of Kharakpuron which revenue was  assessed  on him.  On  the contrary, Handwa was assessed  as  a  separate unit and the  assessment was made pay.able by Handwa to  the Government  through  the  Rala of Kharakpur..  The  Raja  of Kharakpur  has no beneficial interest either in money or  by way  of  services or any power of appointment  or  dismissal over the Ghatwali of Handwa. Learned counsel for the  appel- lant has relied on several passages in the judgment of  Lord Sumner  but  those passages are susceptible  of  a  meaning. which is consistent with the conclusions we have arrived  at on a construction of the two Sanads relating to Taluk Kakwa- ra.  It  is also to be noted that  the  appellant  judgment- debtor  himself mortgaged this very Taluk Kakwara  with  the Raja of

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89 Kharakpur on the allegation that Taluk Kakwara was alienable with the consent of the Zamindar.     In our judgment the final conclusions arrived at by  Mr. Justice Shearer and Mr. Justice Chatterjee are clearly right and this appeal must be dismissed with costs.                                 Appeal dismissed. Agent for the appellant: 1. N. Shroff. Agent for the respondents: S.P. Verma.