Thakur Rudreshwari Prasad Sinha vs Srimati Rani Probhabhati And Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 75 of 1950

Decision Date: 26 October, 1951

Coram: B.K. Mukherjea, Vivian Bose

In the matter titled Thakur Rudreshwari Prasad Sinha versus Srimati Rani Probhabhati and Others, the judgment was rendered on the twenty-sixth day of October, nineteen-fifty-one by the Supreme Court of India. The bench comprised Justice B K Mukherjea and Justice Vivian Bose. The petitioner was Thakur Rudreshwari Prasad Sinha and the respondents were Srimati Rani Probhabhati together with other parties. The case is reported in the 1952 volume of All India Reporter at page one and also appears in the 1952 Supreme Court Reports at page sixty-four. The legal issue concerned the nature and incidents of Ghatwali tenures, specifically whether a Zemindari Ghatwali in Taluk Kakwara could be alienated. The headnote recorded that Taluk Kakwara originated as a Zemindari Ghatwali tenure and continued to be treated as such. Even if Captain Browne’s Sanad had temporarily rendered it a Government Ghatwali, the subsequent Sanad of Raja Kadir Ali and the Permanent Settlement restored its Zemindari character, making alienation permissible with the consent of the Zemindar according to the custom of Kharakpur, a principle that the court recognised judicially.

The civil appeal, numbered seventy-five of nineteen-fifty, arose from a judgment of the Patna High Court dated twenty-second November, nineteen-44, which itself was rendered in appeal number two hundred thirty-eight of nineteen-40 and originated from an order dated thirteenth July, nineteen-40 of the Subordinate Judge of Bhagalpur in miscellaneous case number one hundred seventy-four of nineteen-39. The facts were set out in the earlier judgment. Initially the appeal had been presented to the Privy Council, but it was later transferred and heard by the Supreme Court. Counsel for the appellant was assisted by a junior, while counsel for the respondents was also assisted by a junior. The hearing took place on the twenty-sixth day of October, nineteen-51, and the judgment was delivered by Justice Das. The appellant, who presently held Taluk Kakwara within the Mahalat of Kharakpur, faced a decree against the respondents, who represented the Banaili Raj that had also acquired the Mahalat of Kharakpur. The respondents obtained a decree for eleven thousand five hundred eighty-seven rupees, fourteen annas and six paise for arrears of rent and cess and moved for execution of that decree by attaching and selling Taluk Kakwara. On twenty-ninth August, nineteen-39, the appellant, as judgment-debtor, filed an objection under section forty-seven of the Code of Civil Procedure, asserting that because Taluk Kakwara was held on Ghatwali tenure, it could not be sold in execution of a monetary decree. The court observed that the objection was overly broad, since not all lands held on Ghatwali tenure were necessarily inalienable. The court referred to the earlier decision in Kali Pershad Singh versus Anund Roy, which involved the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur and in which evidence showed several instances of unquestioned transfers and sales of Mahals in Kharakpur. The Privy Council in that case held that a Ghatwali tenure in Kharakpur was not per se inalienable and could be transferred by the Ghatwal or sold in execution, provided such transfer received the assent of the Zamindar.

The Court explained that a sale of land undertaken to satisfy a decree for arrears of rent could occur only when the Zamindar had given his assent to such a transfer or sale. Consequently, a sale initiated by the Zamindar in execution of a decree for rent arrears necessarily demonstrated that assent. The Court then referred to the later authority of Narayan Singh v. Niranjan Chakravarti (2), a case concerning the Ghatwali Mahal of Handwa. In that case Lord Sumner observed that the Privy Council’s earlier decision in the Kharna Ghatwali Mahal case was fully supported by the evidence presented there, and that the same authority had been repeatedly applied by Indian courts without the need to re-prove the custom each time.

Lord Sumner, however, cautioned that the custom in question depended upon proof, and that the tenure involved was situated within the Zamindari of Kharakpur and therefore subject to the authority of the Kharakpur Zamindar. He pointed out that such a tenure could not be linked to Ghatwali tenures that lay outside the Zamindar’s domain or that were not part of his Zamindari. The Privy Council, as noted in the later case, found no reason to extend the custom of Kharakpur to Ghatwali tenures that were independent of the Kharakpur Zamindari, even though those tenures might be geographically nearby. In sum, the Court held that it was well-established, and no contrary argument had been raised before it, that Ghatwali tenures held under the Zamindar of Kharakpur were, by judicially recognised custom, alienable provided the Zamindar assented, whereas Ghatwali tenures such as those in Handwa, held directly under the Government, were inalienable.

Applying these principles, the appellant-judgment debtor filed a fresh objection under section 47 of the Code of Civil Procedure on 31 May 1940, asserting that Taluk Kakwara was held under a Government Ghatwali tenure. The central question before the execution proceedings was whether Taluk Kakwara was indeed a Government Ghatwali, as claimed by the appellant-judgment debtor, or a Zamindari Ghatwali held under the Raja of Kharakpur, as contended by the respondents who held the decree. The learned Subordinate Judge examined the evidence and concluded that Taluk Kakwara constituted a Zamindari Ghatwali under the Raja of Kharakpur, consequently dismissing the objection raised by the judgment debtor.

The judgment debtor appealed this decision to the High Court. The appeal was initially heard by a two-judge bench composed of Manohar Lal J and Shearer J. Justice Manohar Lal examined the facts and reached the conclusion that Taluk Kakwara was a Government Ghatwali, and therefore he was inclined to allow the appeal. Justice Shearer, by contrast, held that although Taluk Kakwara had at one time been a Government Ghatwali, it had ceased to be so and had become, and remained, a Zamindari Ghatwali; consequently, it was alienable and he was inclined to dismiss the appeal. Because the two judges differed in their opinions, the matter was referred to a third judge, Justice Chatterjee, for a conclusive determination. Justice Chatterjee ultimately held that Taluk Kakwara was a

The Court noted that the lower tribunal had classified the land in question as Zamindari Ghatwali property, held that such land was alienable, and consequently dismissed the appeal. The judgment-debtor then secured leave to appeal to the Privy Council. The present appeal has arrived before this Court on transfer from the Privy Council for further consideration.

The Court observed that although the precise origins of Ghatwali tenures have become obscure owing to the turbulent period that preceded British rule, the character, purposes and incidents of Ghatwali tenures have been thoroughly delineated by a series of decided cases. The historical position of the Zamindars around the year 1765, when the East India Company obtained the Dewani of Bengal, Bihar and Orissa, was set out by the Right Honourable T. Pemberton Leigh, later Lord Kingsdown, in his judgment in the case of Raja Lelanund Singh v. Government Bengal. Lord Kingsdown explained that many of the larger Zamindars within their respective Zamindaries were entrusted with rights and duties that properly belonged to the Government. They possessed authority to collect from the Ryots a portion of the gross produce of the lands, imposed taxes and levies, and enhanced their revenue through fees, perquisites and similar exactions, practices not unlike those found in more recent and more civilised nations. In addition, they were obligated to preserve peace and order and to administer justice within their territories, which required them to maintain courts of both civil and criminal jurisdiction and to employ Kazees, Canoongoes and Thanahdars, or a police force. While these powers gave the Zamindars a quasi-regal authority over the Ryots and other inhabitants, the Court noted that, in relation to the Government, they functioned merely as stewards or administrators. Their Zamindaries were granted on an annual basis, with the yearly payment, known as jumma, subject to variation at the Government’s discretion. The amount was an arbitrary sum fixed by the Government, calculated upon the gross produce of the Zamindary after allowing for the Zamindar’s maintenance and the expenses incurred in collection and discharge of public duties imposed by the Government (1) (1855) 6 M.I.A. 101 at p. 108.

Further down, Lord Kingsdown observed the widespread disorder that prevailed throughout the provinces, noting that particular districts suffered from distinct types of ravages. The mountainous or hill districts were then inhabited by lawless tribes who asserted a wild independence, often differing in race and religion from the plains inhabitants and who were frequently subjected to incursions by more warlike neighbours. To prevent such incursions, it was necessary to guard the mountain passes, or Ghats, through which hostile groups could descend. Consequently, the Mahomedan rulers instituted a tenure called Ghatwali, by which lands were granted to individuals, often of high rank, at a low rent or without rent, on the condition that they performed duties of protecting and preserving order in the neighbouring districts.

The Court noted that the tenure known as Ghatwali was originally granted at a low rent or sometimes without rent, on the condition that the grantees performed specific duties and protected and preserved order in the neighbouring districts. This description of the nature and incidents of a Ghatwali tenure had been adopted by the High Court in the earlier case of Leelanund Singh v. Thakoor Munranjan Singh (1), a suit between the respective predecessors of the parties now before the Court and relating to the same Taluk of Kakwara. The learned Chief Justice, in his judgment at page 255, observed that it was essential for the present purpose to understand the true origin and nature of these tenures. He explained that 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 against incursions by law-less tribes inhabiting the hill districts. The Government at that period made large grants of land, often to persons of high rank, at a low rent or at no rent at all, on the condition that the grantees should provide and maintain a sufficient military force to protect the inhabitants of the plains from such incursions. The grantees, in turn, subdivided and re-granted the lands to other tenants in a manner comparable to the creation of military tenures in England during the feudal age. Each of these sub-tenants, besides paying a generally small rent, held the land in consideration of the military services required of them, and each was obliged to furnish a specified number of armed men commensurate with the extent of his holding to fulfil the Government’s requirements. The Court reproduced the citation (1) (1877) I.L.R. 3 Cal. 251 in this context.

The Court further referred to the observations of Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal (supra) at page 125, where it was noted that although the nature and extent of the rights of the Ghatwals in the Ghatwali villages might be doubtful and could vary across districts and families, there was clearly an ancient law or usage by which these lands were appropriated as a reward for the services of the Ghatwals. Those services, while including police duties, were equally of military origin and character, and therefore required the appointment of a distinct class of persons from ordinary police officers. Accordingly, his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held by persons of high rank. In another precedent, Munrunjan Singh v. Raja Lelanund (1), also a suit between the respective predecessors of the present parties and relating to the same Taluk of Kakwara, the High Court at page 86 observed that there was considerable variety in the tenures collectively described as Ghatwali across different parts of the country. All such tenures shared the common feature of being grants of land situated at the edge of the hilly country and held on the condition of guarding the ghats or passes. The Court quoted the passage ending with “Generally,” to indicate the continuation of this general principle.

There appeared to be a modest quit-rent that the holder of the land was required to pay to the Zamindar, in addition to the services that were rendered, and this payment was intended to signify the subordination of the tenure. Nevertheless, the nature of these tenures varied considerably across different Zamindaries and putnees. In some places the tenures possessed a major character, while in others they were of a minor nature. On certain occasions the tenure held by the great Zamindar himself seemed originally to have been of this type. More commonly, however, large tenures comprising several whole villages were held under the Zamindar. The Court further observed that the inferior Ghatwalis were those in which the Zamindar or the ruling authority dealt directly with the individuals who performed the work, allocating to them parcels of land within the established villages. By contrast, the larger tenures resembled semi-military colonies, wherein a chief together with his followers was settled in parts of the country that were otherwise unsafe and could not be occupied. The law governing Ghatwali tenures had been examined in depth by Lord Sumner in Narayan Singh v. Niranjan Chakravarti. Lord Sumner summarized the wide range of conditions attached to the service of a Ghatwal, stating that the term “ghatwal” denoted an office occupied by a specific person from time to time, who was obliged to perform the duties of that office and who received consideration in return for holding it. Within this definition there could exist an extensive variety of conditions. The relationship might consist merely of a personal contract of employment for wages, with the remuneration taking the form of land use or an actual heritable and perpetual estate, conditional upon the performance of certain services or services that might be demanded. The office could be public or private, important or insignificant. The Ghatwal, as the guard of a pass, might function as a bulwark for an entire countryside against invaders, or merely as a sentry against petty marauders, or even as a game-keeper protecting crops from wild animals. Ghatwali duties could be divided into police duties and quasi-military duties, although both categories had largely lost their significance and the quasi-military duties were now rarely performed in a strict sense. Moreover, the duties might require personal discharge by the Ghatwal and personal competence for that discharge; alternatively, they could be discharged vicariously through the creation of shikmi tenures, the appointment and maintenance of a subordinate force, or could be of a nature that required bulk provision only. Lord Sumner emphasized that when a grant was made to a person and his heirs as Ghatwal, or when such a grant was presumed to have existed despite being lost, personal performance of the Ghatwali services was not essential provided that the grantee remained responsible for ensuring that the services were rendered.

The Court cited the decision in Shib Lal Singh v. Moorad Khan, (1868) 9 Suth. W.R. 126, and then observed that the authority who appointed a Ghatwal could be one of three possible entities. First, the appointing authority might be the sovereign or ruling power exercising control over the entire country. Second, the appointing authority could be a landholder who, by long-standing custom, was responsible for maintaining security and public order within his own estates. Third, the appointing authority might be a private individual for whom the employment of watchmen was sufficiently important on a large property that a regular office had to be created. The Court noted that, although it was often the case that the employee performed personal service and that the employer selected and appointed the employee directly, this was not an absolute requirement. This observation was supported by the earlier quotation and by a passage from the judgment of Lord Sumner, page 52, which stated that there exist vast estates whose owners hold the land on the condition that ghatwali services will be provided either continuously or when needed. Such services could not be performed by the proprietor personally, but they become feasible for the proprietor and for those to whom he delegates the duties simply by virtue of his ownership of the granted lands. The passage further explained that, in such circumstances, the ghatwali tenure, even if it was not originally established as a hereditary right, readily evolves into one. It is commonly observed that on the death of the incumbent the tenure passes to a member of his family, though not necessarily to the senior member. The Court then referred to the case of Munrun-jun Singh v. Lelanund Singh, where it was held that in Kharakpur the ghatwals possessed a perpetual hereditary tenure at a fixed jama. The requirement that a Ghatwal render services gave rise to an additional characteristic of the tenure, namely the inalienability of the ghatwali lands. The Court explained that alienating the ghatwali lands would likely deprive the Ghatwal of the means necessary to perform his duties. This consideration was especially relevant when the appointing authority and the owner of the ghatwali lands were the ruling power itself. Although this strict rule of inalienability applied, the Court observed that in the Kharakpur Zamindari Ghatwalis the rule had been softened by a custom recognized in the earlier decision of Kali Petshad v. Anund Roy, a custom that has been repeatedly affirmed and applied throughout India without the need for fresh proof. From these observations, the Court concluded that ghatwali tenures originated in the Mughal period, that the services attached to them included police functions as well as military duties, and that such tenures could be granted either directly by the ruling power to the Ghatwal, thereby creating a direct relationship between them, or by a Zamindar for the purpose of protecting his zamindari or for enabling the Ghatwal to render police and military services to the ruling power under the terms of the zamindari grant.

In the matter before the Court, the discussion turned to the purpose for which the Ghatwals of Kharakpur were appointed, namely the protection of the Zamindari estate and the performance of police and military duties that the Zamindar was obligated to render to the ruling authority under the terms of his Zamindari grant. The Court then considered which category of Ghatwali tenure applied to the Ghatwals of Kharakpur. The estate of Mahalat Kharakpur was described as extensive and, at least nominally, owed allegiance to the Mughal Emperor. No documentary evidence was placed before the Court showing the specific terms on which the Raja of Kharakpur held the estate from the Mughals, and consequently the Court could not state with certainty the precise nature or quantity of police or military services that the Raja was required to provide to the sovereign of the time. Nevertheless, the Court observed that, as with other Zamindars, the Raja of Kharakpur was expected to maintain internal peace and order by establishing adequate police stations, known as Thanas, and to safeguard tenants and other inhabitants against incursions by law-less hill tribes by supplying or arranging an appropriate military force. Because a large Zamindar such as the Raja of Kharakpur could not be expected to perform police or military duties personally, it was natural for him to appoint his own Ghatwals to protect his Zamindari and to discharge the services owed to the ruling power on his behalf. The Court cited the observation of Lord Kingsdown in Raja Lelanund Singh v. The Government of Bengal (supra) at page 102, which noted that long before the year 1765 the Zamindars of Kharakpur had created Ghatwali tenures for the purpose of protecting their estates from attacks by mountaineers and other turbulent persons in the neighbourhood. The Court also referred to Lord Sumner’s remarks in Narayan Singh v. Niranjan Chakravarti (supra) at page 68, which recognised that well before 1765 Ghatwali tenures under the Zamindar of Kharakpur had been created by various holders of those lands for their own purposes, and that as late as the period 1770-1785 the estate manager, Mr. Cleveland, who administered the estate during the minority of Kadir Ali, continued the same policy. Further, the Court reproduced Lord Sumner’s statement at page 50 of the same case, which explained that “In the Sonthai Parganas there are for practical purposes three classes of Ghatwali tenures: (a) Government ghatwalis created by the ruling power; (b) 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 the assessment; and (c) zamindari ghatwalis, created by the zamindar or his predecessors and alienable with his consent. The second of these classes is really a branch of the first.” The Court then framed the essential question: to which of these classes did the Ghatwali tenure of Taluk Kakwara, the subject of the present dispute, belong – was it a Government Ghatwali, or was it one of the many Ghatwali tenures created by the Zamindars of Kharakpur? The Court noted that speculation was unnecessary, because the issue was not to infer the original nature and incidents of the grant, but to determine the character of the tenure based on the actual evidence before it.

To determine the character of the tenure over Taluk Kakwara, the Court recognised that the necessary facts could be gathered only from the record of actions taken and omitted by the ruling authority and its officials in relation to that tract. The Court noted that it possessed before it the authentic copies of the two Sanads that dealt with the Kakwara Ghatwali, as well as the provisions contained in the Permanent Settlement Regulation. Accordingly, the nature and incidents of the tenure had to be founded on a proper interpretation of those grants together with an examination of how the grant had been administered at the moment of the Permanent Settlement. For the purpose of clarification, the Court found it helpful to set out a brief historical narrative concerning Mahalat Kharakpur and Taluk Kakwara. In the year 1765 the East India Company obtained the Dewani of Bengal, Bihar and Orissa from the Mughal Emperor, an acquisition that effectively transferred sovereignty over the three provinces to the Company. At that juncture the ruler of Mahalat Kharakpur was Raja Mozaffar Ali, and Taluk Kakwara formed part of his estate. In 1766 Raja Mozaffar Ali rebelled against the Company, prompting the dispatch of a strong military force commanded by Captain Browne to suppress the insurrection. By 1768 the Raja was defeated, captured and subsequently imprisoned; he was stripped of his title and property, and the Company assumed direct administration of Mahalat Kharakpur through its officers. This direct control continued until the estate was later reinstated in the hands of Raja Kadir Ali, the grandson of the deposed ruler. In 1776 Captain Browne, then acting as the Company’s officer in charge of Mahalat, issued an Amalnama or Sanad (Exhibit 1) granting twenty-two villages to two individuals, Rankoo Singh and Bhairo Singh, with a fixed annual rent (jāmā) of Rs 245-12-15. The Sanad stipulated that, from the beginning of the fiscal year 1184 Fasli, the taluk of Kakwara was leased in perpetuity (mukarrari) to the said ghatwals without dispute, at the specified rent payable in current coins. The grant expressly consolidated revenues from all sources, such as malwajhat, sair-wajhat and grain, while expressly excluding the perquisites of zamindars, nankars, chaudhuris, kanungos, charitable lands, jagirdar lands, bargandazes and other similar charges. It further required the grantees to cultivate the land peacefully and to remit the revenue to the Government each year, to endeavour continuously to improve cultivation, to keep tenants satisfied, and to refrain from any oppressive or excessive demands. The Court recorded these historical and documentary facts as the basis for its analysis of the original nature of the Kakwara Ghatwali tenure.

The document required the ghatwals to manage the land from day to day and to hold themselves personally responsible for any shortfall in cultivation. It directed them to keep the tenants satisfied by treating them kindly and to refrain from oppressing anyone or making excessive demands. The ghatwals were expressly forbidden from fixing allowances for jagirdars, bargandazes and similar persons at levels higher than the stipulated rent. They were instructed to remember this limitation at all times. The grant also obliged them to provide protection to the tenants within their jurisdiction and to safeguard the villages of the Taluka. Whenever a chakars was sent by the Huzur, the sardar was required to appear before the Huzur accompanied by his men. If, within the boundaries of the grant, any murder, disturbance, dacoity, theft, highway robbery or similar offence occurred and the culprit was traced or found to be conspiring knowingly with another person, and if the government’s work suffered as a result, the ghatwals would be held accountable by virtue of their position. After an inquiry, appropriate punishment would be imposed on the offenders and the ghatwals responsible for the lapse would be dismissed from their post and would not be reinstated.

The endorsement dated the 25th Shanwal, 17, corresponding to the 7th Pus Bangla, 1183 Fasli, further stipulated that the amlas of the zamindars of the Taluka, upon learning of the fixed istimrari mukarrari rent, should continue to receive that rent each year and should not demand even a farthing in excess. The endorsement commanded that this requirement be treated as peremptory and that the parties act exactly as written. The endorsement identified Taluka Kakwara, in the pargana of Danda Sukhwara, belonging to Kharagpur, district Jangaltari, Sarkar Monghyr, province of Bihar, as being let out in perpetual mukarrari without any objection or contention to Rankoo Singh and Bhairo Singh, who were described as ghatwals of the Taluka. The fixed jama was specified as Rs 245-12-15 (rupees two hundred and forty-five, annas twelve and gandas fifteen) in current coins, consolidated from all sources including malwajhat, sair-wajhat and all grains, and excluding the perquisites of the zamindari, nankar, chaudhuris and kanungos, the expenses of the Taluka, lands given in charity such as barhmotar, shibotar and bishun-parit, as well as jagir lands of jagirdars, bargandazes, dhupars and maimas. The endorsement then listed twenty-two mouzas or villages comprising the grant. It was noted that the grant was made to Rankoo Singh and Bhairo Singh as “ghatwals of the said Taluk,” indicating that they already held the position of ghatwal. The duties imposed on them, particularly the duty to protect tenants and to appear before Huzur with their men, were observed by the Court, quoting Lord Sumner in Narayan Singh v. Niranjan Chakravarti, not to exceed the ordinary duties of zamindars. Moreover, the grant contained no provision, either in its main body or in the foot endorsement, requiring the maintenance of a regular body of archers or barkandazes, a feature commonly found in ordinary ghatwali grants and in the later grant made by Raja Kadir Ali concerning the same Taluka. Finally, the Court considered these observations in its overall analysis.

In this case, the Court observed that the admonition placed at the end of the principal paragraph, which directed the amlas of the Zamindars of the Taluk to receive the fixed mukarrai rent and not to demand even a farthing in excess, could be regarded as indicating that the Zamindar was genuinely interested in the grant. The Court then referred to the observation of the learned Judges of the High Court of Calcutta in Munrunjun Singh v. Raja Lelanund, recorded on page 85, where those Judges described Captain Browne’s Sanad as appearing “rather a confirmation of an existing tenure than the creation of a new one.” The Court found that this view was strongly supported by the later history of the Kakwara Ghatwali, which would be related subsequently. Nevertheless, the Court pointed out that at the date of this Sanad there was in fact no Raja of Karakpur and that the Mahalat was being administered and managed by Captain Browne on behalf of the East India Company; therefore the grant made by him must be taken as creating a Government Ghatwall tenure. The seal at the top of the Sanad was 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 was 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 militated against its being only a confirmation of a pre-existing Ghatwall tenure. The direction to pay according to the Kabuliat, year after year, crop after crop, into the Government treasury clearly suggested that the Sanad created a Government Ghatwall tenure. In the Moghul period there was no fixity of the jama; grants were made annually and the jamas were liable to be varied. Consequently, the provision of a fixed annual jama in this Sanad could not be regarded as a confirmation of an existing grant on a fixed jama. After considering all these matters, Justice Shearer and Justice Chatterjee concluded that, under Captain Browne’s Sanad of 1777, Taluk Kakwara became a Government Ghatwall. This line of reasoning possessed considerable force, although it was not necessarily conclusive, because Captain Browne, undoubtedly acting for the East India Company, might have issued the Sanad during a period of interregnum on behalf of, or in the interest of, whoever might eventually become the Zamindar of Kakwara. The Court noted that if the analysis rested only on this Sanad and no further events had occurred, it might plausibly be said that a new tenure had been created by the ruling power through this Sanad; however, the matter did not rest solely on that document.

The record indicates that the matter does not rest solely upon Captain Browne’s Sanad; consequently the court must examine how Taluk Kakwara was dealt with subsequently and what effect later events had on the status and rights of the Ghatwal of that taluk. It appears that in the year 1780 the East India Company restored the Mahalat of Kharakpur to Kadir Ali, who was the grandson of the deposed Raja Mozaffar Ali. Although the Governor-General issued a formal order in 1781, the actual restoration of the Mahalat to Raja Kadir Ali took place in 1780. At that time the young Raja was only five or six years old, and the Collector of Bhagalpur, Mr Cleveland, administered Mahalat Kharakpur on behalf of the minor ruler. On 17 January 1780 a fresh Sanad, identified as Exhibit 1(a), was issued in the name and under the seal of Raja Kadir Ali to the same two persons, Rankoo Singh and Bhairo Singh, and the Sanad contained the following terms. The Sanad begins with the heading “Seat of Raja Qadir Ali, under Emperor Shah Alam, the Victorious—1193” and directs the present and future mutasaddis of affairs and the gumashtas who hold the posts of Chaudhuris and Kanungos of Pargana Danda Sukhwara, which pertain to the mahals of Kharakpur in Sarkar Monghyr, Province of Bihar. The Ghatwali service tenure of Taluka Kakwara, belonging to the same pargana, was held under the Sanad by Bhairo Singh and Rankoo Singh, together with one hundred seventy-seven musketeers and archers, including sardars, on the condition that they owe allegiance and loyalty to the Sarkar. The Sanad further states that this tenure, being regularly upheld and kept intact, is assigned and granted with effect from the beginning of the Kharif season of 1189 Fasli Rajwara, which corresponds to 1188 Fasli Mughlana. The grantees were required to discharge their duties and obligations with honesty and fidelity, to keep the tenants satisfied through good treatment, and to watch the ghats and chaukis with great care so that no thief or night-robber could operate in the area. The Sanad adds that, if, God forbid, any person’s property were stolen or plundered, cattle concealed, or murder committed, the grantees must trace the thieves or night-robbers, recover the property, restore it to the owner, and present the offenders before the Huzur, proving the murder. In the event that they fail to discover the thieves, prove the murder, or recover the stolen cattle, they were required to hold themselves responsible for such failure. The grantees were also directed to continue paying the quit-rent to the Sarkar as before, and whenever summoned they must appear before the Huzur with a body of men. The Sanad concludes by expressing the desire that the parties be considered permanent Ghatwals of the place, that they be maintained in possession of their rights, and that they receive sound advice to ensure the advantage of the Sarkar and the well-being of the tenants. The order was declared peremptory and to be acted upon accordingly, and it was dated the seventeenth day of the seventh month of the holy month of Muharram of the year 22, corresponding to 194 A.H.

The endorsement, dated the holy month of Muharram of the year 22, which corresponds to 194 A.H., recorded that the Ghatwali service tenure of Taluka Kakwara in Pargana Danda Sukhwara was granted again to Rankoo Singh and Bhairo Singh together with one hundred seventy-two musketeers and archers, including sardars, with effect from the beginning of the karif season of 1189 Fasli, Rajwara, corresponding to 1189 Fasli Mughlana, on the condition that the grantees would owe allegiance and loyalty to the Sarkar. The document listed the financial obligations attached to the grant: a fixed perpetual quit-rent of Rs 245-12-1, a rent of Rs 215-0-15, and a Zamindari portion of Rs 30-12-0; it further recorded that Bhairo Singh was assessed Rs 178-3-5 and Rankoo Singh Rs 67-9-10, while other entries showed amounts such as Rs 155-14-15, Rs 59-2-0, and Rs 22-4-10, together with an additional Zamindari entry of Rs 8-7-10. Following these specifications the Sanad enumerated a list of sixteen mauzas that formed the jagir allotted under the grant.

The Court examined the historical background of the tenure. It noted that if Taluk Kakwara had originally been created as a Zamindari Ghatwali by the Zamindar of Kharakpur, and if Captain Browne’s Sanad had merely confirmed the pre-existing tenure during the inter-regnum when he administered the whole Mahalat of Kharakpur on behalf of the East India Company, then, upon the restoration of the Zamindari to Raja Kadir Ali, it would have been natural for the Raja to clarify the position and status of the Ghatwals under him by issuing fresh Sanads in their favour. In that view, Raja Kadir Ali’s Sanad merely regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure and set out the terms more clearly and explicitly. The appellant, however, contended that Captain Browne’s Sanad had created a Government Ghatwali tenure and that Raja Kadir Ali’s Sanad was nothing more than a confirmation of that Government grant. The appellant relied on the inscription in the seal at the top of the document, which referred to Emperor Shah Alam the Victorious, arguing that this indicated a Government grant. The Court was unable to accept this contention, observing that the reference to the Emperor might simply have been a formal acknowledgement of a titular figurehead. Moreover, the statement that the Ghatwali service tenure of Taluk Kakwara was “held under a Sanad by Bhairo Singh and Rankoo Singh with one hundred seventy-two musketeers and archers” could refer to an earlier Sanad that specified the number of armed men, and it need not refer to Captain Browne’s Sanad of 1777, which, as pointed out, contained no such specification. Under the Sanad referred to, the grantees’ tenure commenced from the beginning of the karif season of 1189 Fasli, Rajwara, corresponding to 1188 Fasli Mughlana, a commencement date that differed from that 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

In the Sanad issued by Raja Kadir Ali the fixed perpetual quit rent was stated as Rs 245-12-15, and this amount was described as inclusive of the Zamindari Rasoom. The rent component itself was identified as Rs 215-0-15, while the Zamindari Rasoom portion was indicated as Rs 30-12-0. A further important point noted in the Sanad was the manner in which the quit rent was apportioned between the two grantees; this apportionment appears towards the conclusion of the document. The Court observed that such an apportionment was wholly inappropriate where the grant was merely confirmatory in nature. The Court also highlighted that the grant covered sixteen Mauzas, whereas the Sanad of Captain Browne related to twenty-two Mauzas. Moreover, many of the sixteen Mauzas listed in Raja Kadir Ali’s Sanad could not be found in the specification of Mauzas that formed part of Captain Browne’s Sanad. Another significant observation was that, in the sixteen Mauzas enumerated at the foot of Raja Kadir Ali’s Sanad, the two grantees were shown to possess different and distinct shares in the various Mauzas, and in certain instances an entire Mauza was allotted exclusively to one grantee or the other.

The Court further questioned the logic of requiring Raja Kadir Ali to confirm a grant that, if Captain Browne’s Sanad had indeed created a Government Ghatwali tenure, he would not have been directly or indirectly connected with. It was well known at the time that ninety-eight of the Ghatwals of Kharakpur obtained their Sanads from Raja Kadir Ali, whereas only three large Ghatwals—those of Lachmipur, Handwa and Chandan Katoria—received their Sanads from Mr Dickenson, the successor to Captain Browne. This distinction, the Court explained, could be understood only on the basis that the ninety-eight Ghatwalis, including the Taluk of Kakwara, were in reality Zamindari Ghatwalis, while the three larger Ghatwalis were treated as Government Ghatwalis.

The Court also noted that during the period in question Mr Cleveland, the Collector of Bhagalpur, was responsible for the charge and management of the Mahalat of Kharakpur. The ninety-eight Sanads were granted in the name of Raja Kadir Ali during Mr Cleveland’s administration, and since 1780 no authority on behalf of the Government had challenged the propriety of those Sanads as evidence of a Zamindari Ghatwali grant. These facts, the Court concluded, demonstrated that Raja Kadir Ali’s Sanads effectively regularised the position and status of these Ghatwals as holders of Zamindari Ghatwali tenures and precisely specified the terms on which those tenures were to be held thereafter.

Conversely, even if the proposition were accepted that Captain Browne’s Sanad created a Government Ghatwali tenure, the Court referred to the language of Lord Sumner in Narayan Singh v. Niranjan Chakravarti, where it was stated that a Sanad issued by Raja Kadir Ali during the tenure of Mr Cleveland as Collector, and never thereafter objected to or questioned 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.” Accordingly, such a release would mean that the original Government Ghatwali tenure came to an end and was replaced by a Zamindari Ghatwali tenure.

The judgment observed that the earlier Zamindari Ghatwali tenure replaced the previous Government Ghatwali tenure, and that the issue was not limited to the Sanad issued by Raja Kadir Ali. It noted that in 1789 or 1790 a decennial settlement of the Mahalat of Kharakpur was concluded with Raja Kadir Ali, and that this settlement was made permanent in 1796 under the Permanent Settlement Regulation of 1793. Referring to Lord Kingsdown’s observation in Raja Lelanund Singh v. The Government of Bengal, the court emphasized that it was undisputed and even fairly admitted that the Ghatwali lands formed part of the Zamindari and were included in the assessment of the Zamindari. This position was confirmed by the High Court in Munrunjun Singh v. Raja Lelanund, which held that there was no doubt that at the time of the Permanent Settlement the tenure was included in the Zamindari of Kharakpur and that the revenue (Jama) was payable to the Zamindar. On appeal, the Privy Council also pointed out that the Government’s claim to resume and reassess the Ghatwali lands was rejected because the Taluk had already been assessed to revenue and constituted a portion of the Zamindar’s Mal land. In Leelanund Singh v. Thakoor Munrunjun Singh, Justice Garth further explained that at the moment of the Permanent Settlement the Taluk of Kakwara formed part of the Kharakpur Zamindari and that its holders were “dependent Talookdars” of that Zamindari, not independent Talookdars, since the Zamindar retained the beneficial interest in the tenure and the tenures had never been registered as independent Taluks. Lord Sumner described Raja Lelanund Singh’s attempt to recover possession of Taluk Kakwara as an effort to resume his “Shikmi Ghatwali lands.” The judgment also cited Captain Browne’s 1788 publication India Tracts, which listed only Luchmipur, Handwa and Chandan Katoria as the three Ghatwalis under the Jungle Terry Collector, with Kakwara absent from that list. A government list dated 24 February 1860 (Exhibit D) enumerated ninety-eight Ghatwali tenures belonging to Mahal Kharakpur, assigning Kakwara the number 73. A second list prepared in 1863, at the time of the composition between the Government and the Raja of Kharakpur, placed Kakwara as item 40, while the earlier three Ghatwalis—Luchmipur, Handwa and Chandan Katoria—did not appear in either list. Finally, the court referred to letters from the Collector of Bhagalpur to the Raja of Kakwara dated 1783 and 1808, which were reproduced in Lord Kingsdown’s judgment and clearly demonstrated that the Government recognised the right of appointment and dismissal of a Ghatwal as belonging to the Raja of Kharakpur. Lord Kingsdown’s commentary reiterated that Zamindars derived monetary benefit and the valuable service of the Ghatwals, and that they enjoyed the right to appoint individuals who, together with the lands, would assume the duties of the office.

In this matter the Court observed that the Zamindars received monetary benefits and also enjoyed the services of the Ghatwals, which gave them the valuable right to appoint individuals who, together with the land, would undertake the duties of the Ghatwal office. The Court noted that if the Ghatwali tenures created by the Sanad of Raja Kadir Ali were government Ghatwali tenures, it would be inexplicable for a Zamindar to possess the authority to appoint or dismiss a Ghatwal. After examining the facts and the surrounding circumstances, the Court formed the opinion that the Taluk of Kakwara was originally a Zamindari Ghatwali tenure and that it continued to be treated as such up to the present time. The Court further held that, even if Captain Browne’s Sanad had temporarily converted the tenure into a government Ghatwali, the later Sanad of Raja Kadir Ali, or at any rate the provisions of the Permanent Settlement, restored Taluk Kakwara to the status of a Zamindari Ghatwali. Consequently, the land became alienable with the consent of the Zamindar, according to the custom of Kharakpur that had been judicially recognised. The Court affirmed that these conclusions did not conflict with any of the judicial decisions previously cited.

The Court then turned to the earlier decision in Raja Lelanund Singh v. The Government of Bengal, where the Government attempted to assert a right to resume and assess revenue on Ghatwali lands belonging to the Zamindari of Kharakpur. The Government relied on Regulation I of 1793, section 8, clause (4), and argued that before the Permanent Settlement the Zamindar had appropriated the produce of the Ghatwali lands for maintaining police establishments. The Government contended that, because the Regulation placed the responsibility for police maintenance on the Government, the lands should be 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 for the produce used for police purposes. There were eleven suits filed against eleven Ghatwals. Although the Raja of Kharakpur was not initially made a party, he later joined the proceedings on his own application. In 1885 a Special Commissioner delivered a final judgment in favour of the Government, which the Raja of Kharakpur appealed. The Government’s claim was dismissed on two grounds: first, the Ghatwali lands formed part of the Zamindari of Kharakpur, were included in the Permanent Settlement of that Zamindari, and were covered by the jama assessed on the Zamindari; second, the Ghatwali lands were not subject to resumption under clause (4), section 8 of Bengal Regulation I of 1793, as the allowance for police establishments was already included in the assessment of Zamindars. The Court found no passage in Lord Kingsdown’s judgment that opposed the view that the Ghatwali tenures attached to the Mahalat of Kharakpur were Zamindari Ghatwali. On the contrary, Lord Kingsdown’s observations indicated that these tenures were of the Zamindari type, over which the Zamindar possessed the right of appointment and dismissal, and that they formed part of the Zamindari and were included in its assessment.

In this case, the Court observed that the remarks of the Lord, some of which had been quoted earlier, clearly showed that the Ghatwali tenures in question were of the Zamindari type, over which the Zamindar possessed the authority to appoint and dismiss the Ghatwals, and that these tenures formed an integral part of the Zamindari estate and were therefore included in the assessment of the Zamindari. The suit titled Munrunjan Singh v Raja Lelanund Singh was brought by the Zamindar of Kharakpur who claimed possession of Taluk Kakwara on the basis that the lands had been held for police services, that the appointment and dismissal of the Ghatwals rested with him, that he had compounded with the Government for a monetary payment in lieu of the police services he was required to render through the Ghatwals, and that, because those services were no longer needed, he was entitled to resume the lands. The defendants argued that the Ghatwals were not lessees who could be evicted but held a permanent tenure that existed long before the Permanent Settlement, that it was fixed at a specified jama mentioned in the Sanads, and that it derived directly from representatives of the British Government as compensation for services in guarding the mountainous country and its passes, services which the Ghatwals were always ready to perform. If Taluk Kakwara had been a Government Ghatwali, the Zamindar would have lacked locus standi to maintain a possession suit, and the suit should have been dismissed on that ground; however, this point was not seriously raised, and the case proceeded and was decided on the basis that Taluk Kakwara was a Zamindari Ghatwali. The principal Sudder Amin decreed in favour of the Zamindar, and the defendant appealed. The High Court held that the contract between the Raja of Kharakpur and the Government, lacking legislative authority, did not affect the statute or the rights of the Ghatwal, and that the tenure in dispute was not a mere grant of land in payment for a service rendered at pleasure but a perpetual hereditary holding on a fixed jama, leaving a beneficial interest in the Ghatwal with a condition of service attached. This decision was upheld on appeal by the Privy Council. The subsequent case concerning the same Taluk Kakwara, Leelanund Singh v Thakoor Munrunjun Singh, was a suit by the Zamindar of Kharakpur against the Ghatwal of Kakwara seeking a declaration of his right to increase the rent at a rate equivalent to the Ghatwali services that had become unnecessary. Again, if Taluk Kakwara had been a Government Ghatwali, the Raja would have had no standing to claim a rent enhancement in lieu of the services, and the claim was dismissed. The judgment contained positive observations indicating that Taluk Kakwara was a “dependent” Taluk, which Lord Sumner described as a “Shikmi” Taluk. Counsel for the appellant relied heavily on two authorities, namely Narayan Singh v Niranjan Chakravarti and Rani Songbari Kumari v Raja Kirtyanand Singh, to support his argument.

In the earlier cases Songbari Kumari v. Raja Kirtyanand Singh (1) and Rani Sonabati Kumari v. Raja Kirtyanand Singh (1), both matters concerned the Ghatwali of Taluk Handwa. The counsel for the appellant attempted to demonstrate that the Sanad issued by Captain Browne and the Sanad issued by Raja Kadir Ali relating to Taluk Kakwara were, in effect, the same as the Sanad of Captain Browne and the confirmatory Parwan of Mr. Dickenson, the Collector of Bhagalpur, that related to Taluk Handwa. In Narayan Singh v. Niranjan Chakravarti the Subordinate Judge held that the tenure of Handwa was not a Ghatwali tenure at all. On appeal, the High Court held that the parganah had been a Moghul Ghatwali tenure before the cession but that it had become a Government Ghatwali and that nothing had been done to alter that position. The High Court further expressed the opinion that Raja Udit Narayan Singh did not hold the estate as a Ghatwal and that the heirs of Udit Narayan Singh could not impugn the validity of the mortgage created by him. The Privy Council reversed that decision of the High Court. In Rani Sonabati Kumari v. Raja Kirtyanand Singh (1) Justice Fazl Ali gave an elaborate discussion of the law relating to Ghatwali tenures. The appellant’s counsel before this Court relied on several passages from the judgment of Lord Sumner and from the judgment of Justice Fazl Ali. Those two decisions must be understood as based on the construction of the relevant Sanads, namely the Sanad of Captain Browne and the Parwan of Mr. Dickenson, and the observations in those judgments must be read in the light of that construction. The position of Taluk Kakwara appears to be entirely different from that of Taluk Handwa. Justice Shearer, in his judgment, identified five points of distinction between the two Ghatwals. First, the Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of the Raja of Kharakpur. Second, the Ghatwal of Handwa formerly paid the quit rent directly into the Government treasury. Third, Handwa does not appear in more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur. Fourth, after the restoration of Kharakpur Raj, the Ghatwals of Handwa obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson, rather than from Raja Kadir Ali. Fifth, the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy was negatived by the Courts. Likewise, Justice Chatterjee, in his judgment, also pointed 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 for geographical purposes.

In this case the Court noted that the phrase “sense and for fiscal purposes” clarified that the annual jama of Handwa was never regarded as forming part of the Mal assets belonging to the Raja of Kharakpur on which revenue assessment was levied. Rather, Handwa was treated as a distinct unit for fiscal assessment and the amount payable was to be remitted by Handwa directly to the Government through the Rala of Kharakpur. The Court further stated that the Raja of Kharakpur possessed no beneficial interest in the revenues, no entitlement to services, and no authority to appoint or dismiss the Ghatwali officer of Handwa. Counsel for the appellant had cited several passages from the judgment of Lord Sumner, but the Court found that those passages could be interpreted in a manner that was consistent with the conclusions already reached by the Court after construing the two Sanads relating to Taluk Kakwara. The Court also observed that the appellant, who was also the judgment-debtor, had mortgaged the very Taluk Kakwara to the Raja of Kharakpur on the basis of a claim that the Taluk was alienable with the consent of the Zamindar. After reviewing the arguments, the Court affirmed that the final conclusions drawn by Mr Justice Shearer and Mr Justice Chatterjee were correct, and consequently the appeal was dismissed with costs. The order therefore read that the appeal was dismissed. The agent for the appellant was recorded as N Shroff, and the agent for the respondents was recorded as S P Verma.