Sukhdev Singh v. Maharaja Bahadur of Gidhaur

Ghatwali tenures-Nature and incidents-Gova-nment ghatwalis and Zemindary ghatwalis-Difference-Zemindar' s right to sub-soil minerals-District Gazetteers-Evidentiary value.

Though there are several instances in which Government ghat4 walis were included in the zemindary of other persons, yet wh.cro no clear evidence is forthcoming as to the true character of a ghat4 wali, the fact that the tenure is included within a zamindary and is covered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is de-pendent upon the zemindary.

The mere fact that the ghatwali was shown to be under the Collector cannot alter the character of the ghatwali, i.e., if it Was a zemindary ghatwali, it could not become a Government ghanvali merely because it was stated to be under the Collector.

A zemindar is presumed to be the owner of underground rights in the tenancies created by him in the absence of evidence that he ever parted with them.

A statement in the District Gazetteer is not necessarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experienced officials with great care after obtaining the facts from official records,

(History and incidents of ghatwali tenures discussed).

C1VIL APPELLATE Juruso1CTI0N. Civu. Appeal No. 29 of 1950.

Appeal against the Judgment and Decree dated the 10th October, 1945, of the High Court of Judicature at Patna (Manohar Lal and Das JJ.) in Appeal No. 64 of 1942 arising out of decree dated the 28th February, 1942, of the Subordinate Judge at Monghyr in Suit No. 10 of 1941.

Amarendra Nath Sinha (Samarendra Nath Mukherjee, with him) for the appellants.

Lal Narain Sinha (R. C. Prasad, with him) for the respondent.

1951· May 2. The judgment of the Court was deli-1951) vered by <Jukhdev Singh v. Mahara}a FAZL Au J.-This is an appeal from a judgment and Bahadurof decree of the High Court of Judicature at Patna, Gidhaur affirming a judgment and decree of the Subordinate Faz/ A/IT. Judge of Monghyr in a title suit brought by the plaintiff-respondent.

The plaintiff, the Maharaja of Gidhaur, who has succeeded in both the courts below, is the proprietor of an impartible estate known as Gidhaur raj in the district of Monghyr. The ancestors of the defendants 1st party originally held a 4 annas share in a ghatwali tenure known as Mahal Dumri Nisf Katauna T. No.

325, and subsequently by private partition they were allotted mouza Dumri with its 47 tolas which are detailed in ·schedule I of the plaint. In execution of a mortgage decree obtained by one Chethru Rai against the ancestors of defendants 1st party, their interest, to which reference has been made, was purchased by the Maharaja of Gidhaur in the name of one of his employees, and the latter took delivery of possession of the property on the 19th April, 1904. On the 13th August, 1903, the ancestors of the defendants 1st party filed an application for setting aside the sale which was dismissed by the executing court and the appeal from the order of the executing court was dismissed by the High Court as well as by the Privy . Council. After certain disputes in the criminal courts, the defendants second party alleging themselves to be the lessees of the defendants first party, obtained a mining license in 1937 from the sub-divisional officer of Jamui, and the District Magistrate apprehending a breach of the peace, started proceedings under section 144 of the Criminal Procedure Code, which ended in favour of the defendants first and second parties and against the plaintiff.

The plaintiff's case is that, emboldened by the order in the proceedings under section 144, the defendants started working mines in the tolas mentioned in sche-dule II of the plaint and extracted a considerable

1951 9ua~tity of mica and hence he was compelled to Sll/ohdev Singh mst1tute the present suit. In this suit, after reciting

v. the facts to which reference has been made he prayed Malrarqja for a declaration of the sub-soil rights with regard to Bahadurof Gidhaur. the entire Mahal Durnri and for recovery of possession Faz/ A.Ii J, of the mortgage lands situated in the tolas specified in

schedule II of the plaint. He also prayed for mesne profits and a permanent injunction restraining the defendants first and second parties from extracting mica or other underground minerals from the lands mentioned in schedule II of the plaint. The grounds on which these reliefs were claimed are summarized in paragraph 12 of the plaint in these words :- "That the plaintiff submits that he being the 16 annas proprietor of Durnri Nisf Katauna has got an indefeasible right and title to all the underground minerals including mica situate within the said talukas. The plaintiff further submits that all the titles and interest in the said 4 annas mokrari shares of the ancestors of the defendant 1st party having been acquired by plaintiff's ancestor by auction purchase in 1903, the defendant 1st party have no sort of right and interests in the mica and other underground minerals nor the defendant 2nd party have derived any lawful right under leases alleged to have been granted in their favour by defendant 1st party, the plaintiff in law is entitled to get a declaration of his title and possession with respect to all the underground rig . h t me . 1 u d. mg rmca . ........... . "

The suit was contested by ~$fendants Nos. I to 11 (defendants 1st party), but, as the trial judge has pointed out, the real defendant was defendant No. l, father of the appellant. The case of this defendant was that . the four annas interest in village Dumri was a ghatwali tenure granted to the ancestors of the defendants first party by Muhammadan rulers to guard the hill passes in the taluka, and the grant under which they held was affirmed subsequently by Captain Browne, a ·representative of the East India Company. The defendant No. 1 further contended that the mineral and subsoil rights were vested in him as the holder of 1951 the ghatwali tenure, and that the plaintiff had acquired Sukhdev Singh no right by his auction-purchase in 1903 inasmuch as v.

in Maharaia the property suit being Government ghatwali tenure Baliadurof was inalienable and consequently the auction-purchased Gid/iaur. was invalid. Lastly, it was contended that this Fazl Ali J, defendant and his ancestors had been exercising rights of possession over the mines and minerals for more than 12 years prior to the suit in assertion of their ghatwali right and to the knowledge of the plaintiff and his ancestors and had thus acquired an indefeasible right by adverse possession to the mines and minerals in suit, especially those in the lands specified in schedule II of the plaint.

The Subordinate Judge decreed the suit, holding among other things that the disputed tenure was a zamindary ghatwali tenure, that it was not inalienable, that the plaintiff had been in possession of the property since he purchased it in 1903 until the order of the District Magistrate made in 1938, that the plaintiff as the proprietor of the Mahal was entitled to the mineral and subsoil rights and that under the mortgage-sale only the surface right had passed to the plaintiff. The findings of the Subordinate Judge were substantially upheld on appeal by the High Court, with this modi-fication that, while agreeing with the Subordinate Judge that the subsoil rights remained with the pro-prietor, the High Court also held that even if the defendant No. 1 was assumed to have had the subsoil rights, those rights passed at the mortgage~sale of 1903 and therefore in any event the plaintiff was the real owner of the subsoil. On the plea of adverse possession raised in defence, the finding of the High Court was that there was no clear evidence that any mine was worked on behalf of the lessees of defendant No. 1 and that at the utmost the evidence adduced in the case showed that there had been some isolated acts of possession during recent years, probably since 1935 onwards, and therefore the plea could not be upheld.

The two main points urged on behalf of the appel-lant in this appeal are :-

19SI ( 1) that the finding of the courts below that the Sukhdev Singh ghatwali tenure held by the defendants first party was

v. a zamindary ghatwali and not a Government ghatwali, Mahara}a could not be sustained and that in fact it was a Govern-Bahadurof 'Gidhaur. ment ghatwali and therefore the property was inalien-Faz/ All J. able and no title passed to the plaintiff ; and (2) that in any event, the plaintiff's suit was barred by limitation under articles 142 and 144 of the Limitation Act.

The first point does not appear to us to be free from difficulty, and since its determination depends upon the proper construction of several old documents, we heard the parties at considerable length, notwithstand-ing the fact that the courts below have concurrently found that the tenure in question is not a govern-ment ghatwali. Before .dealing with the merits of the controversy between the parties, it is necessary to understand what is meant by a "ghatwal" and what is a ghatwali tenure, and for the purpose of correctly apprehending what these expressions stand for, it is sufficient in our opinion to quote the following passage from the decision of the Patna High Court in Rani Sonabati Kumari v. Raja Kirtyanand Singh('), in which the subject of ghatwali tenures has been very elaborately discussed :- "Literally a ghatwal means a guard of the passes and the term 'ghatwali tenure' was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the ·hills from the depredatioqs of lawless hill tribes. These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur, and the Santai Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different places. In some cases they were owners of large estates, some of these estates being more or less of the nature of semi-military colonies .......... In some cases the

( 1) I.L.R. 14 Patna 70 ghatwalis were created directly by the ruling power, 1951 while in other cases they were created by the Sukhdev Singh landlords or zamindars for the purpose of protecting v. Maharaia their zamindary and tenantry and to enable them Bahadurof to have a small force at their command and to Gidhaur. discharge the obligations they owed to the ruling Fazl Ali .T. power. Sometimes the owners of large ghatwali estates subdivided and re-granted the lands to other tenants 'who besides paying small rents held their lands on condition of rendering certain quasi police and military services and providing a specified num-ber of armed men to fulfil the requirements of the Government or of the zamindar as the case might be."

A Government ghatwali is thus a tenure created by the ruling power in favour of a person who is required to render ghatwali services to it, whereas a zamindary ghatwali is a tenure created by a zamindar for ghat-wali services to be rendered to him. It is quite plain that the reason why the appellant is anxious to esta-blish that the tenancy is a Government ghatwali is that a Government ghatwali has been uniformly held to be inalienable. On the other hand, a zamindary ghatwali may be alienated with the consent of the zamindar, and, where local custom permits, even with-out his consent. From the reports of cases relating to zamindary ghatwalis, it appears that by the passage of time the consent of the zamindar has ceased to be a matter of much significance, and is generally . presumed when it is found that the alienation has been made without any objection from the zamindar. As to the extent of the power of alienation, the following obser-vations of the Privy Council in Kali Prasad v. Ananda Rai (1) are pertinent :-

"When once it is established that the ghatwal had the power of alienation, as before stated, that power forms an integral portion of his right and interest in the ghatwali, and there is no evidence whatever to limit it to an alienation for his own life and no longer."

(1) lSI.A.18

1951 In order to determine the true character of a ghat-Sukhdev Singh wali tenure, it is usually necessary to refer to the grant

v. by which the tenure was created. In the present cas_e, Maharaj a the appellant relies upon exhibit C (1), which is a Bahadurof Gidhaur. ghatwali sanad granted in 1776 to the ancestors of the Faz/ Ali J. appellant and which runs as follows : - "Know ye the Chaudhuris, kanungoes, zamindars and mutasaddis of mauza Dumri Ghat (illegible) pargana Gidhaur, Sarkar Monghyr comprised in the province of Bihar.

The perquisites of ghatwari in all the rahdaris in mauza aforesaid, have now been granted to Kunji Singh, Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the said mauza, in accordance with what has been in vogue from old time, with effect from the commencement of 1184 fasli. It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris according to old customs. It will be the duty of the said ghatwars to be ever ready in discharging the duties of the post and guarding the ghats and chaukis of their elaqa by making rounds day and night. If murder, mischief, theft, highway robbery and sudden night attack be committed in their elaqa, they will be held liable there-for and will be dismissed from their post. Treat this as peremptory and act according to what is written. Dated the 5 Ziqada of the 18th year of the August reign corresponding to 1184 Fasli.'

This sanad was granted by Captain Browne, who was deputed by the East India Company to restore order in a tract known as Jungle Terai, a vast waste and hilly country as its name signifies, lying to the south of Bhagalpur and west of Rajarnahal Hills. This document was construed by a Bench of the Patna High Court in Fulhati Kumari v. Maheshwari Prasad('), and as has been pointed out by Dawson Miller C.J. in that case,- " It is not a grant of land but an authority to the persons named to collect as formerly ghatwari or

(') A.I.R.1923 Patna'453 ghatwali fees or tolls from those using the roads and 1951 passes which the ghatwals undertook to protect." Sukhdev v. Singh

When compare this sanad with other ghatwali Maharafa

W(! Bahadurof sanads granted by Captain Browne, some of which are Gidhaur. found discussed in reported cases, the contrast becomes Faz/ .A.// J, very marked. In some of the other documents-for example in the document which was the subject of the decision of the Privy Council in Narayan Singh v.

Niranjan Chak._ravarti(1), and of the Patna High Court in Rani Sonabati Kumari v. Raja Kirtyanand Singh(2) the grant was in respect of a very extensive area of land and there were also words used to indicate that the services were to be rendered directly to the ruling power. The mere fact, therefore, that the sanad in this case was granted by Captain Browne cannot be held to be decisive of the nature of the tenure, because it seems to have been part of the · duties assigned to him to confirm and recognise old titles. As was point-ed out by Dawson Miller C.J., the sanad should be read along with the record of certain proceedings be-fore the Dewani Adalat of Ramgarh, which show that a tenancy comprising 8 annas in mauza Dumri was granted by the zamindar of Gidhaur to 2 persons, one of whom was the ghatwal mentioned in Captain Browne's sanad, with the sanction of Captain Browne.

In the present case, a document of 1798, which was the proceeding of the original court and which was before the learned judges who decided Fulbati's case(3) has not been produced, but we have before us a judgment dated the 18th March, 1799, of the appellate court in the same proceeding. This judgment recites that the case of the ghatwals was that they had been for 3 genera-tions in possession of half of village Dumri, but in the year 1187 fasli (1780 A.D.) the zaminar of Gidhaur wanted to raise "revenue" or rent but they refused to accept a new patta or kabuliyat at an enhanced rent.

Subsequently, the court ordered the zamindar to grant a patta, but the zamindar did not do so and forcibly dispossessed the ghatwals. They thereupon prayed that

( 1 ) 51 I.A. 37 (') J.L.R. 14 Patna 70 [ 3) A.l.R .. 1923 Patna 453

1951 the zamindar may be ordered to gran't them a patta and Sukhdev Singh receive the kabuliyat at the old rent. The appellate

V; court, to which the zamindar had appealed, upheld Mahara}a the decree of the first court ordering the patta to be Bahathlrof Gidhaur. granted. This document shows firstly that the ghat· Fa2l Ali J. wali tenure in respect of half of Dumri had been in

existence for 3 generations prior to 1789, i.e., it must have come into existence long before Captain Browne's sanad, and secondly that it was held under the zamin-dar ; otherwise, it was not necessary that the zamindar should grant a patta and the ghatwal should execute a kabuliyat in his favour.

We have also before us a document (exhibit 1) which is a report of one Khadim Muhammad Ataullah, an employee of the East India Company, incorporating certain statements made by the then zamindars of Gidhaur showing that they had been in possession of the zamindary for nearly 700 years and that "the milkiat zamindary, Chaudhri and Kanungoi of the pargana .......... had all along been in their possession." This document shows that Gidhaur was an ancient zamin- <lary and the zamindar also performed the functions cf chaudhri and kanungoi. The last mentioned point is of some significance, because the sanad of Captain Browne was addressed to chaudhris, kanungos, etc. In the case of Fulbati Kumari('), to which reference has been made, there was an extract quoted from the Bengal District Gazetteer, volume XVII, at page 168, which runs as follows :- "About 1774 the lawless state of this tract led the British to place it in charge of Captain James ' Browne, who settled the estates with the ghatwals with two exceptions. These two exceptions were Dumri and Mahesri which were settled directly with the pro-prietors, the story being that the ghatwal tenure holders fled at the approach of Captain Browne their reputation as dacoits and brigands being too strong for them to face a Government officer without fear of the consequences. In the case of Dumri however, the (') A.I.R. 1923 Patna 453 ghatwals finding that in their absence a settlement 1951 had been made of their tenure, returned and obtained Sukhdev Singh a sanad settling it with them under the Raja of v. Gidhaur. Of the estates settled with ghatwals only Maharaja Bahadurof two or now held by their descendants, viz., Tilwa and Gidhaur. Kewal. The others qavc passed into the hands of the Faz/ Ali J, Maharaja of Gidhaur, Chetru Rai, Akleswar ·Prasad and others of Rohini."

The statement in the District Gazetteer is not neces-sarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experi-enced officials with great care after obtaining the facts from official records. As Dawson Miller C.J. has pointed out in Fulbati's case(1), there are a few inaccuracies in the latter pan of the statement quoted above, but so far as the earlier part of it is concerned, it seems to derive considerable suppon from the documents to which reference has been made.

The counsel for the appellant greatly relied on the fact that Dumri ghatwali is . mentioned in Captain Browne's "India Tracts" as one of the ghatwalis placed under. the Collector of Jungle Terrai districts.

It appears that this point was not raised before any of the courts below, nor was Captain Browne's treatise placed before them. There is thus considerable force in the objection raised on behalf of the respondent that he has not had sufficient opportunity to study the matter and place relevant materials before this coun to enable it to determine what meaning and value 6hould be attached to Captain Browne's statement.

But apart from this objection, it seems to us on the evidence as it stands, that the inference sought to be drawn from Captain Browne's statement is not fully justified for the following reasons :-

1. The mere fact that the ghatwali was shown to be under the Collector cannot alter the character of the ghatwali, i.e., if it was a zamindary ghatwali, it could not become a Government ghatwali merely because it was stated to be under the Collector.

(1) A.I.R.1923 Patna4S3

1951 2. As Collector of Jungle Terrai districts, Captain Sukhdev Singh Browne appears to have had control not only over the

v. ghatwals but also over the zamindars within the area MaharQ/a administered by him.

Bahadurof Gidhaur.