Raja Lelanund Sing Bahadoor v. Government of Bengal
BS648599
PRIVY COUNCIL
Before:-The Right Hon. T. Pemberton Leigh, the Right Hon. the Lord Justice Knight Bruce, the Right Hon. Sir Edward Ryan, the Right Hon. the Lord Justice Turner and the Right Hon. Sir John Patteson.
0 D/d. 13, 14/
15.06.1855
Raja Lelanund Sing Bahadoor - Appellants
Versus
The Government of Bengal - Respondent
On appeal from the Court of the Special Commissioners for the Districts of Calcutta and Moorshedabad.
For the Appellant :- Mr. R. Palmer, Q. C. and Mr. Leith
For the Bengal Government :- Mr. Wigram, Q.C., Mr. Lloyd, Q.C. and Mr. Melvill.
By the tenure of Ghatwally, the land are held under a grant from the ruling power, by the performance of the defined duty of the Ghatwalguarding the Ghats or passes.
Upon the death of the Ghatwallast seised, the lands descend entire to a male heir, as Ghatwal.
Exposition of the principles which induced the Government to recognise the title of the Zemindars in Bengal. as landowners, and to make the Settlement with them for a permanent annual jumma.
Under the provisison of the Decennial Settlement of 1789, the Bengal Government, in 1790, assessed the whole of the Zemindary of Khuruckpore, including certain Ghatwally lands, at a fixed jumm. This Settlement was made perpetual in 1796, under Ben. Reg. I., of 1793 at the same fixed jumma In 1838, the Government set up a clai to resume, for the purpose of revenue assessment, the Ghatwally lands in this Zemindary. Such claim dismissed, by reason,-
First That the Ghatwally lands were part of the Zemindary of Khuruckpre, and were included in the Permanent Settlement of the Zemindary, and covered by the jumma assessed on that Zemindary; and
Second, That lands of Ghatwally tenure were not liable to resumption under clause 4, section 8, reg. I., of 1793 as included in allowances made to Zemindary for Tannah, or police establishments.
In circumstances respecting the enforcement by Government of their claim to resume these lands, the Judicial Committee, in reversing the decree of the Special Commissioners, decreed all the costs incurred in the proceeding in India and in this Court, to be paid by the Bengal Government.
[Para ]
In this suit the Government of Bengal sought to establish their right to resume and assess with revenue certain Ghatwally lands, containing 755 beghas, attached to Ghat Foujdar in Tuppa Dhumsaeen, in Pergunnah Gorda, forming part of the Zemindary of Khuruckpore, situate in the District of Bhagulpore, in Rehar, in the possession of Toofany Sing, as Ghatwal, on the ground that they were held as La-khinaj, without sufficient title to exemption from payment of revenue.
At the time when this suit was commenced, Maha Raja Rehmut Ali Khan was the Zamindar in possession of an extensive Zemindary and principality called the Khuruckpore estates, within which the lands in question were situate, and of which they had always formed part. Raja Biddianund Sing, since deceased, represented by the present Appellant, his son and heir, and one Balnath Sahoo, became during the progress of the suit the purchasers at public auction of that Zamindary, together with the rights of Maha Raja Rehmut Ali Khan therein, and they were subsequently as such auction purchasers made parties to the suit. The Khuruckpore estates, including the Raj and principality, had descended through a long line of ancestors on Maha Raja Rehmut Ali Khan. The Zemindary was in the possession of this family at the time of the accession of the East India Company to the Dewanny in 1765, and it had been in their possession from a period long anterior thereto.
The origin and nature of Ghatwal tenure is fully stated and explained in the judgment. It appears that long before 1765, the Zemindars of the Khuruckpore estates had created certain Ghatwally tenures for the purpose of protecting their Zemindary from the attacks of mountaineers and other turbulent people in their neighbourhood; and those tenures embraced the whole of the lands lying within the village of Dhumsaeen, of which the lands in question had always formed part, as well as lands in other villages belonging to and also forming part of the Khuruckpore estates. These lands, held in Ghatwally tenure, were apportioned and attached by the Zamindar to particular Ghats, or passes, including the Foujdar Ghat, to which were apportioned and attached, amongst other lands, the 755 beghas of land in question. At the same time persons were selected and appointed by the Zemindar to perform the duties of Ghatwals at those several Ghats, and as such to act as the servants and dependants of the Zemindary for the time being; and among those Ghatwals, the Zemindar, from time to time, allotted and apportioned the lands, which were held by them on condition of their performing those duties in lieu of wages, but subject also to the payment of a fixed rate of rent to the Zamindar for and in respect of the cultivated land allotted to them, and for and in respect of the land which they might thereafter bring into cultivation. These Ghatwals were appointed, and their lands were at the same time granted to them by formal sunuds and grants made and executed by the Zemindars, who thereby reserved to themselves the power of dismissing such Ghatwals, and appointing, others in their stead as they might see fit, or if they failed to perform efficiently the services required of them. Thus a permanent guard was established under the absolute control of the Zamindar for the protection of his Zamindary and the Ryots, as well as travelers and wayfarers, according to the ancient custom of the country, and which custom still prevails throughout those Districts of India in immediate proximity to the mountain ranges, as a security against the inroads and attacks of the mountaineers and other turbulent people banded together for the purposes of robbery and plunder.
The proceedings out of which this appeal arose were commenced in the year 1836, by the Sudder Board of Revenue giving instructions to Mr. Travers, the Special Deputy Collector of the District of Bhagulpore, to investigate the question of the Ghatwally tenures, and the right of Government to revenue from the lands held by Ghatwals in his District.
Mr. Travers accordingly proceeded to make the inquiry, and, in May, 1838, eleven suits were instituted before him on behalf of Government against different Ghatwals to assert the Government's right to assess the Ghatwally lands in Tuppa Dhumsaeen with revenue. In one of these suits, Toofany Sing of Ghat Foujdar was the Defendant, and the question there raised and which was the subject of this appeal, was the right of the Government to attach and resume for non-payment of revenue these 755 beghas of land. The proceedings, to which Toofany Sing was a party, involved the same question as that in the ten other suits, and the question with regard to them was agreed to be determined by the result of his suit.
A summary of the various proceedings before the Collector and Special Commissioners, and their respective decrees, will be found in their Lordships' judgment.
By a final decree, dated the 27th of June, 1845, made by the Special Commissioner, Mr. Moore, in favour of the Government, these lands were directed to be resumed and assessed under clause 4, section 8, Reg. I of 1793, as being granted for police establishments.
The present appeal was from this decree.
At the hearing, two grounds were taken by the Appellant against the Government's right of resumption. First, that Ghatwally lands were by the nature of their tenure held by, and formed part of, the Zamindary of khuruckpore, and were included in the Decennial Settlement made between the Zamindar and Government in 1790, by which the Zamindary of Khuruckpore was assessed at a fixed jumma, which Settlement was made permanent by Ben. Reg. I of 1793, and that such Settlement could not now be reopened. Second, that even if these lands were not included in the Permanent Settlement, they were exempt from resumption for taxation by the State, as they had been held for sixty years, from the date of the Company's accession to the Dewanny, without paying rent, which operated as a prescriptive bar to the Government's right to resume.
The Bengal Government relied upon their right to resume and assess these lands under Ben. Reg. I of 1793, section 8, clause 4, and contended, that previously to the passing of that Regulation, respecting the Permanent Settlement of the revenue, the produce of the Ghatwally lands was appropriated by the Zemindar to the maintenance of the Tannah, or police establishments; and by that Regulation, in consequence of the Government having taken upon itself the charge of maintaining the police of the country, lands of that tenure were made liable to assessment of revenue, in addition to the jumma assessed on the Zamindary by the Permanent Settlement, and that the jumma assessed by the Permanent Settlement on the Zamindary of Khuruckpore, in fact, included no sum assessed in respect of the produce appropriated from these lands to the maintenance of the police establishments.
The authorities referred to on these points were: -
As to the nature and tenure of Ghatwally lands, Hurlal Sing v. Jorawum Singh 6 Ben. Bud. Dew. Rep. 169.
Upon the right of the Government to resume, Ben. Regs. LXXII., section 31 of 1791, XLIX of 1792, sections 1, 2 : L of 1792, section 17 : I of 1793, section 8, clause 4 : VIII of 1793, sections 36 & 41 : XXII of 1793, section 2 : XXIII of 1793, section 36 : XXVII of 1793, section 5, clause 4 : XXV of 1803, XXIX of 1814, II of 1819 : IX of 1825 : and 2 Harrington's Analysis, p. 236.
And, that the Government's claim was barred by prescription, Maha Raja Dheeraj Raja Mahatab Chund Bahadoor v. The Bengal Government 4 Moore's Ind. App. Cases, 466, Ben. Regs., II of 1805, section 2, clause 2, and II of 1819.
Cases Referred :-
Hurlal Sing v. Jorawum Singh 6 Ben. Bud. Dew. Rep. 169.
Maha Raja Dheeraj Raja Mahatab Chund Bahadoor v. The Bengal Government, 4 Moore's Ind. App. Cases, 466.
JUDGMENT
The Right Hon. T. Pemberton Leigh :- The question to be decided in this case is the validity of a claim made by the East India Company to resume, for the purposes of revenue assessment, against the Raja of Khuruckpore, 755 beghas of land, (between three and four hundred acres,) part of his Zemindary. Their Lordships had no doubt, at the hearing of the appeal, as to the advice which it would be their duty to tender to Her Majesty; but it was stated that there were ten other suits which, would be governed by the present decision, and it was obvious, from the nature of the claim, that if it could be maintained, it might affect a very great extent of land throughout the Provinces included in the Decennial Settlement. Their Lordships were, therefore, anxious to explain fully the grounds of their opinion, and by enabling parties to judge what cases will or will not fall within their decision, to prevent, as far as possible, further litigation.
The lands sought to be resumed, are of what is called Ghatwally tenure, and the great question in the case is, whether lands of this description are liable to be resumed under Regulation I. of 1793, section 8, clause 4, relating to Tannah, or police establishments.
As the question depends on the effect of the Settlement of 1793, and the changes which were then introduced, it will be convenient to advert to the state of these Provinces, and the mode in which they were administered previously to that time. The three Provinces of Bengal, Bihar, and Orissa, were ceded by the Mogul to the East India Company, in the year 1765.
At this time the territorial division of the country was into mouzas, or villages, occupied by Ryots; Pergunnahs, each of which included several villages; and Zemindaries, varying in extent, from a moderate English estate, to Districts equal to or larger than many European principalities. The Zemindary of Beerbhoom, which immediately adjoins Khuruckpore, is stated in a document, dated in 1786, to which we shall have occasion to refer, to be twice as large as the Kingdom of Sardinia. Khuruckpore was probably of inferior but still of vast extent.
Many of the greater Zemindars, within their respective Zemindaries, 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 tolls, 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 Zemindaries, and, for that purpose, they had to keep up Courts of civil and criminal justice, to employ Kazees, Canoongoes, and Tannahdars, or a police force. But while, as against the Ryots and other inhabitants within their territories, many of these potentates exercised almost regal authority, they were, as against the Government, little more than stewards or administrators. Their Zemindaries 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 officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the Zemindar for his maintenance, and for the expenses of the collection and of discharging the public duties with which he was entrusted by the Government. Amongst the lands thus granted to the Zemindars were often included lands which had been appropriated to the payment and support of public officers of the Zemindaries, or villages included in them. These lands were called Chackeran lands; and it appears that under the ancient system such lands were usually exempted from assessment in favour of the Zemindar, though they had no legal title to exemption. But there was another class of lands called La-khiraj, which, by reason of a special exemption in a royal grant, or by having been legally devoted to religious uses, or by other means, had become or were claimed by their owners to be free from Khiraj, or assessment to the Government.
The police of the country was maintained by means of Tannahdars, or police officers, kept by the Zemindars, and appointed and paid by them; but, where no other provision existed for their maintenance, the expense was in effect defrayed by the Government, either by direct allowances to the Zemindar, or by deduction from his jumma, or by excluding from assessment, or assessing below their value, lands appropriated to that purpose by the Zemindar.
In addition to the police force thus kept by the Zemindar, at the expense of the Government, and which seems to have been usually very inefficient, private individuals and communities were accustomed to keep watchmen for the protection of their persons and property, under the name of Chokeedars, and various other names, who were paid by their employers, and from whom no allowance was made by the Government.
Besides the disorder which prevailed generally through the Provinces, 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, asserting 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 Mahometan rulers established a tenure called, Ghatwally tenure, 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.
Nothing could be more deplorable than the state of the Provinces under this system. Murder and rapine were common throughout the country; more than half the lands were waste and uncultivated; and neither the Ryots nor the Zemindars had any inducement to improve them, as any increase in their value had only the effect of increasing the Government assessment.
It was considered by the East India Company that the first step towards a better system of Government and the amelioration of the condition of their subjects would be to convert the Zemindars into landowners, and to fix a permanent annual jumma, or assessment to the Government, according to the existing value, so as to leave to the land proprietors the benefit of all subsequent improvements.
Accordingly, they determined to make the assessment in the first instance for a period of ten years, with a view to its being ultimately made permanent.
In 1789, the original Rules and Orders for the Decennial Settlement of Bihar were issued; the Settlement in the other Provinces being issued in subsequent years.
In 1791, by Regulation LXXII., an amended Code of Regulation relative to the Decennial Settlement of Bengal, Bihar, and Orissa was promulgated.
By section 1 of that Regulation it was provided, that a new settlement of the land revenue should be concluded for a period of ten years.
By section 2, it was provided, that it should be at the same time notified to the landowners with whom the settlement might be concluded, that the assessment fixed by the Decennial Settlement would be continued after the expiration of the ten years, and remain unalterable for ever, provided such continuance should meet the approbation of the Court of Directors.
By section 31, it was ordered, that the allowances of the Kazees and Canoongoes, heretofore paid by the landholders, as well as any public pensions hitherto paid through the landholders, be added to the amount of their jumma, and be in future paid by the Collectors on the part of Government.
The assessment was to be exclusive of all La-khiraj lands, whether exempt from Khiraj with or without authority.
The Chackeran lands, or lands held by public officers and private servants in lieu of wages, were not to be excluded, but were to be subject to assessment in common with the other lands in the Zamindary, the exemption which such lands had previously enjoyed being thus destroyed.
The landholders were declared responsible for the peace of their Districts as theretofore, and were to act agreeably to such Regulations on this head as might be thereafter enacted.
The jumma was to be fixed by the Collectors on fair and equitable principles, with the reservation of the approbation of the Board of Revenue, to whom he was to report the grounds of his decision.
The Collectors, in fixing the jumma, were to adopt the following as a general rule:--that the average product of the land in common years be taken as the basis of the Settlement, and from this deductions be made, equal to the Malikana and Kurcha, leaving the remainder as the jumma of Government.
The Malikana is the allowance made to the Zemindar for his maintenance, and the disbursements and outgoings allowed to him against his receipts fall under the term "Kurcha."
At this period Raja Kadir Ali was the Zemindar of Khuruckpore. This Zamindary is situated in the Zilla of Baghulpore, on the frontier of the Province of Bihar, and forms a considerable principality including many Pergunnahs, and, amongst others, the Pergunnah of Gorda, in which the lands in dispute lie. A very large quantity of lands within this District had been granted by the ancestors of the Raja on the Ghatwally tenure before described. In the Tuppa of Dhumsaeen, a subdivision of the Pergunnah of Gorda, no less than thirty-five villages were held at this time upon this tenure by Ghatwals, and, amongst others, the lands in question by an ancestor of the original Defendant in these proceedings.
The extent and particulars of these vast estates, and the nature of the Ghatwally tenures, were well known to the Government of Bengal at the time when the settlement was made. Some years before, in consequence of disturbances which had taken place in the country during the time of Kadir Ali's father, the Government had found it necessary to interfere with a military force, and having displaced the then Raja and restored tranquility, had placed the Zemindary under the charge of one of their own officers, Mr. Augustus Cleavland, who had the management of it up to the year 1781, about which time Kadir Ali (his father having died) was put into possession of the Raj.
It appears from evidence in the cause (the report of the Collector of Baghulpore, of the 19th of November, 1813), that Mr. Cleavland, during the time that he was in charge of these estates, had granted no less than 87,084 beghas of land in this and (we presume from the extent) the adjoining District upon Ghatwally tenure, in conformity with the orders of Government.
It appears from other evidence (in Mr. Sutherland's Report, dated the 8th of June, 1819) that the grants before Mr. Cleavland's time to the Ghatwals reserved a payment of two annas per begha, as a fee or perquisite to the Zemindar; that some sunuds were granted unadvisedly by Mr. Cleavland without such reservation, but that he afterwards insisted on such payment being made to the Government while he was in charge on behalf of the Government, and that all grants subsequently made by the Raja of Khuruckpore contained the same reservation.
In 1789-90 the jumma to be paid by Kadir Ali was to be fixed, with a view to the Permanent Settlement. As might be expected, considering the magnitude of the estate, it appears to have undergone great consideration. Every village was enumerated and entered in a register; the deductions and allowances to be made out of the income, and the particulars of the lands to be excepted from the assessment (for some lands, called Nankar lands, were excepted), were the subject of correspondence between the Collector of the District and the President and Board of Revenue at Fort William, and finally the jumma was fixed at Rs. 65,459. 8a. 10½p.
It is beyond dispute, and, indeed, in this case has been fairly admitted, that the Ghatwally lands formed part of the Zemindary. It is equally clear that they were included in, and covered by, this assessment. Had they been excluded, the accounts to show it are in the possession of the Government, and might have been produced; but the contrary is perfectly clear upon the evidence, and indeed is found as a fact in the cause by the Special Commissioner, Mr. Moore, in his judgment of the 17th of May, 1843.
Whether these lands were or were not productive of revenue to the Zemindar at this time, is not material; though, if it were important, a careful examination of the evidence has satisfied their Lordships that there was some profit derived from them by the Zemindar even in money; but, at all events, he derived the benefit arising from the services of the Ghatwals, and enjoyed the valuable right of appointing the individuals, who, with the lands, were to take upon themselves the duties of the office. It was not the intention of the Settlement that no lands should be covered by the jumma which did not actually produce income, and, therefore, contribute to increase the jumma at that time. On the contrary, probably more than half the lands in the country were waste and unproductive at this period, and one of the main objects of the Permanent Settlement was to bring them into cultivation.
Thus matters continued up to the year 1792. The Tannahdars, or public police officers appointed by the Zemindars, had been found very inefficient, and the Government had appointed officers of their own to assist in keeping order, who had concurrent jurisdiction with those named by the Zemindar. But, in the year 1792, the Government determined altogether to suppress the Tannahs, or police establishments, maintained by the landholders, and to take to themselves exclusively the preservation of peace and the prevention of crime by means of a police force of their own, to be established at convenient stations throughout the provinces. As the landholders were to be relieved from the expense to which they were subject for the maintenance of the force now to be suppressed, it was very reasonable that, where allowances for such expenses had been made by the Government, they should no longer be continued, and the Government, therefore, resolved to reserve the right of discontinuing them, or (where lands had been allowed for the purpose) of resuming them.
To carry these arrangements into effect, Regulations XLIX. and L., of 1792, were issued.
The preamble of Regulation XLIX. recites, in strong language, the disorders which prevailed, and the utter inefficiency and frequent corruption of the Tannahdars employed by the landholders.
Section 1, provides that the police of the country is in future to be considered under the exclusive charge of the officers of the Government, who maybe specially appointed to that trust. The landowners and farmers of land, who keep up establishments, Tannahdars and police officers, for the preservation of the peace, are accordingly required to discharge them, and all landholders and farmers of land are prohibited from entertaining such establishments in future.
By section 2, landholders and farmers are no longer to be held responsible for robberies committed on their respective estates. Provision is then made for the appointment of a police force in different stations throughout the provinces, each under the charge of a Darogha or superintendent, and the whole is subjected to the control of the Magistrate.
It is clear that the police force here spoken of is distinct from the Chokeedars and village watchmen, for these persons are by the 12th section declared subject to the orders of the Darogha, and by the 13th section are ordered to apprehend and send offenders to the Darogha, and afford every information to him.
By Regulation L. of the same year, 1792, a tax is to be levied within the District of each police establishment, for defraying its expenses; and the 17th section, which is very important, is in these words (it is a circular addressed to the magistrate of each district):--"You will report whether the landholders of your District have been allowed any deductions on their jumma, or are in the receipt of any money allowances, or hold any lands either free of, or at a reduced revenue, for the purposes of keeping up Tannahdars or other police officers, and also your opinion whether the whole, or any, and what part of such deductions, allowances, or produce of such lands may with equity be brought to the public account, in consideration of the landholders being now prohibited from keeping up such establishment, and Government having taken upon itself the charge of the police."
Nothing can be clearer than this--that the lands referred to, are lands which the Zemindars had been permitted by the Government to hold free from revenue, or at a reduced revenue, for the purpose of keeping up Tannahdars; not lands which the Zemindars had permitted other persons to hold free from rent, or at a reduced rent, or lands which such persons had a right to hold free from rent, or at a reduced rent; and that any lands which were in the first predicament were to be reported to the Government by the magistrate, together with his opinion, whether it was consistent with equity that the whole or any part of the produce of such land should be brought to the public account; and further, that this provision relates and is confined to a class of officers whom the Zemindar is no longer permitted to keep.
Though the Decennial Settlement had been made as to the several Provinces of Bihar, Bengal, and Orissa under different Regulations, and although as to some of the estates the Settlement had not been entirely concluded in 1793, it was thought right in that year finally to establish its permanency, and for this purpose the celebrated Regulations of 1793 were published.
They were many in number, and after declaring the Settlement, to be now permanent, re-enacted, with some modifications with respect to the three Provinces collectively, the provisions which had been previously made with respect to them separately.
The clause relating to the resumption of allowances which had been made to the Zemindars for police establishments, is in these words:--"Regulation 1, section 8, clause 4. The jumma of those Zemindars, independent Talookdars, and other actual proprietors of land, which is declared fixed in the foregoing articles, is to be considered entirely unconnected with, and exclusive of, any allowances which have been made to them in the adjustment of their jumma, for keeping up Tannahs, or police establishments, and also of the produce of any lands which they may have been permitted to appropriate for the same purpose; and the Governor-General in Council reserves to himself the option of resuming the whole or part of such allowances or produce of such lands, according as he may think proper, in consequence of his having exonerated the proprietors of land from the charge of keeping the peace, and appointed officers on the part of Government to superintend the police of the country. The Governor-General in Council, however, declares, that the allowances or produce of lands which may be resumed will be appropriated to no other purpose but that of defraying the expense of the police; and that instructions will be sent to the Collectors not to add such allowances, or the produce of such lands, to the jumma of the proprietors of land, but to collect the amount from them separately."
Upon the meaning of this clause the question in this cause depends. It is obvious that it has reference to the Police Regulation of 1792, and to the allowances with respect to which an inquiry was directed to be made in that year. It is unnecessary, therefore, here to repeat the observation already made as to their effect.
By Regulation XXIII. of 1793, the same inquiries are directed to be made by the Collectors as had been ordered to be made by the Magistrates in 1792; but, as the language is not precisely the same, it may be as well to state the clause at length. It is section 36, and is in these words:--"The Collectors are to report all allowances that may have been made to the proprietors of land for keeping up police establishments, either by deduction from their jumma, or by permitting them to appropriate the produce of lands for that purpose, or in any other mode, which may not have been already resumed, with their opinion how far the whole or any portion of such allowances can with equity be resumed in consequence of the proprietors of lands being exonerated from the charge of keeping the peace, as declared in Regulation XXII. of 1793:" which Regulation had re-enacted the provisions of Regulation XLIX. of 1792.
The same provision with respect to Chackeran and La-khiraj lands which had been contained in the Regulations of 1789 are repeated in those of 1793, namely, that the Chackeran lands should be included in the Settlement, and the La-khiraj lands excluded from it.
Although both the La-khiraj lands and the Tannahdary lands are reserved for further inquiry under these Regulations, there was obviously a great distinction between them with respect to the period at which the decision relating to them ought to be made.
The La-khiraj lands were separate from the Zamindary, and were excepted out of the Settlement. The validity of the exemption claimed for them depended on the validity of the grant under which it was claimed. Very many of the grants were believed to be fraudulent; but each case was to depend upon its own circumstances. The investigation of such circumstances might occupy a long time, and a discovery of grounds of suspicion might take place at any period. As these lands were not to be included in the Settlement, no great inconvenience could arise from delay.
But with respect to the allowances for a police force made by the Government, whether in land or in money, the case was quite different. They were included in the Settlement, and if any additional charge was to be thrown upon the landholder in respect of such allowances, it was necessary that it should be ascertained as part of the Settlement. No difficulty in ascertaining the fact could possibly exist. The assessment had been very recently made, and the officers who had made it must, in every case, be perfectly aware whether any such allowances had or had not been made.
In pursuance of these Regulations, Mr. Dickenson, the Collector of Bhaghulpore, was required to report whether, in the Settlement for Khuruckpore, any such allowances had been made; and on the 29th of April, 1794, he makes his report in the negative. His words are these (contained in a letter addressed to the President and Members of the Board of Revenue of Fort William, relating to this and other Zemindaries):--"In obedience to the 36th Article, I have made the necessary inquiries, but do not find that any allowances, either by deduction from their jumma, permission to appropriate the produce of lands, or any other mode, have been granted to any proprietor for keeping up a police establishment."
This inquiry took place before any permanent grant had been made of this Zemindary, and with a view to such grant. No claim to resumption of lands or to alteration of jumma was, or, upon the footing of the report, possibly could be, set up by the Government; and nearly two years afterwards, namely, on the 25th of January, 1796, the Government made a grant to the Raja, of the whole Zemindary of Khuruckpore, including the lands in question, to hold to him in perpetuity at the jumma assessed in 1789-90, namely, Rs. 65,459. 8a. 10p.
It is said that Mr. Dickenson made this report under a mistake. A mistake of what ? Not of facts, certainly. The existence and nature of these Ghatwally tenures, the extent to which they prevailed in this District, and the mode in which they had been dealt with in making the assessment, must, from the circumstances which have been stated, have been perfectly familiar both to the Collector and to the Board of Revenue.
But was he under a mistake of law ? That he considered the Ghatwally lands as not within the meaning of the clause in question is abundantly clear, and if he was mistaken as to the intentions of the Government who had framed it, a mistake so deeply affecting their revenues, and reaching to such a great extent of territory, must at once have excited the remarks and the remonstrance of the Revenue Board; but they make no objection to his view of the subject, and, accordingly, the grant is made on the terms already stated : the grantee holds under it, and for more than forty years no attempt is made to disturb it.
It would seem to be very difficult, under such circumstances, to permit any part of the lands so granted to be resumed on any allegation of mistake, if there were reason to suppose that any mistake, had been made.
Indeed, by Regulation II. of 1819, the East India Company formally "renounce all claim on the part of Government to additional revenue from lands which were included within the limits of estates for which a Permanent Settlement has been concluded, at the period when such Settlement was so concluded, whether on the plea of error or fraud, or any pretext whatever, saving, of course, mehals expressly excluded from the operation of the Settlement."
But their Lordships are far from thinking that there was any mistake either on the part of the Collector or of the Board of Revenue. All the information which their Lordships can obtain with respect to those lands leads to a different conclusion.
In Mr. Grant's Analysis of the Finances of Bengal, addressed to the Court of Directors, in the year 1786, and printed in the Appendix to the Fifth Report of the Select Committee on the Affairs of the East India Company, p 268, the Zamindary of Beerbhoom is stated to have been conferred by Jaffier Khan on an Affghan or Patan tribe, "for the political purpose of guarding the frontiers on the west against the incursions of the barbarous Hindoos of Jharcund, by means of a warlike Mahomedan peasantry entertained as a standing militia, with suitable territorial allotments, under a principal landholder;" and Mr. Grant afterwards describes the tenure "as in some respects corresponding with the ancient military fiefs of Europe, inasmuch as certain lands were held La-khiraj, or exempt from the payment of rent, and to be applied solely to the maintenance of troops."
There is no doubt that the tenures here spoken of are Ghatwally tenures, though they are not mentioned by that name.
Beerbhoom immediately adjoins Khuruckpore, and in 1795 some Ghatwally lands were transferred from Beerbhoom to the District of Bhagulpore, in which Khuruckpore is situate, and in 1797 lands of the same description were transferred from Bhagulpore to Beerbhoom.
In 1813, a report was made by the Collector of Bhagulpore to the Magistrate of Beerbhoom in answer to certain inquiries with respect to Ghatwally lands in his District. The Collector states, that the Ghatwally lands in his District are of four kinds : First. The lands already referred to as granted by Mr. Cleavland. These he states to have been allotted in the environs of the forests, at the foot of certain mountains, which he names in various Pergunnahs, and amongst others "Pergunnah, Kankjole, and in some other villages of the Khuruckpore estates, to certain Ghatwals and watchmen in lieu of salaries, in the proportion of the number of watchmen attending the said Ghatwals to attend to and guard the watch stations at the passes, and to patrol the precincts of the villages, that no mountaineers might be able to descend from those passes of the mountains to commit night attacks, to invade or assault, or to plunder money or cattle, or to create disturbance." The second class the report describes as, "The Ghatwals attached to the Khuruckpore estates, who pay a stipulated rate of rent for their lands and villages, being bound to protect and guard the highways, to watch the stations at the passes, to prevent disturbances being created by the mountaineers, thieves, and highwaymen. They hold their lands in virtue of sunuds granted by the Zemindar of Khuruckpore, except some who have received theirs from the former authorities." The report then proceeds to state, "That when the Zemindar, or Government authority, wishes to appoint a Ghatwal to guard the frontiers of the villages, it is his duty to ascertain the produce of the villages, the quantity of Ghatwally lands therein, and after deducting a certain rate in the ratio of the guards with the Ghatwals, in lieu of wages, to fix a certain rent to be paid by the Ghatwals."
After mentioning other descriptions of Ghatwally lands, he states his opinion, that the Ghatwals have no right of inheritance or proprietary interest in their lands, but hold right of possession as long as they perform the terms and conditions of their sunuds. The report then states, that at the time of the Decennial Settlement, the Ghatwals were not treated as independent Talookdars; that no Settlement was made with them, but that they were included in the Settlement of the Zemindar of whom their lands were held.
In 1816, another report was made by the Collector of Bhagulpore, in which it is stated, that the Ghatwals pay a fixed rent to the Zemindar of Khuruckpore, and continue under his control, direction, and subjection, while the Raja is answerable to the Collector for the rents of the entire district of Khuruckpore.
With respect to the Ghatwally tenures in Beerbhoom, it is stated in a Regulation passed with respect to them in 1814 (Regulation XXIX. of that year), that the class of persons called Ghatwals in the District of Beerbhoom, from a peculiar tenure, and that every ground exists to believe, that according to the former usages and constitution of the country, this class of persons are entitled to hold their lands, generation after generation, in perpetuity, subject, nevertheless, to the payment of a fixed and established rent to the Zemindar of Beerbhoom, and to the performance of certain duties for the maintenance of the public peace and support of the police.
This description is confined in terms to the District of Beerbhoom, but in the case of Hurlall Sing v. Jorawun Sing (6 Sud. Dew. Rep. 170), which occurred in 1837, a question arose as to the nature of these tenures generally, the point for decision being, whether they were divisible on the death of a Ghatwal or descended to his eldest son. One of the Judges states, that these tenures are very common in the Nerbudda territory for the protection of the Ghats. Another of the Judges seems to consider them as Chackeran lands; and the Court was of opinion, that the lands being held conditionally on the performance of certain defined duties, they were not divisible on the death of the Ghatwal, but descended to the eldest son.
Lands of this description could not properly be considered as lands of which the Zemindars had been permitted by the Government to appropriate the produce to the maintenance of Tannah, or police establishments. They were held by a tenure created long before the East India Company acquired any dominion over the country, and though the nature and extent of the right of the Ghatwals in the Ghatwally 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 officers.
We find accordingly that the office of Ghatwal in this Zemindary was frequently held by persons of high rank.
Before the date of the Regulations, and in 1783, we have a letter from the Collector of Bhagulpore to the Raja Kadir Ali, informing him that the Ranee Surbissuree (who from the title must have been a female of high rank) had been dismissed from her office of Ghatwal of Jummee Humapa, which is situate in the Khuruckpore estates, by order of the Governor-General in Council, and intimating that, "as the office is in your Highness's gift, your Highness will, should you deem it necessary and proper, appoint a person to the office of Ghatwal of the said Pergunnah, to watch day and night at the said Ghat. Should it be advisable, your Highness may retain it under your Highness's control, informing the Court of the circumstance." Surely the language here used in speaking of the Ghatwal is title suited to the appointment of a police officer. It is rather that which in ancient times in England might have been addressed to a Lord of the Marches with respect to a chieftain under his orders.
Again, the officers contemplated by the resumption clause, were a class whom the landowner was in future prohibited from keeping. Was this the case of the Ghatwals ? Why, we have a letter from the Collector of Bhagulpore to the Raja of Khuruckpore, on the 1st of September, 1808, in which he observes, "as the settlement of rent between the watchmen and yourself rests with you, as also does the dismissal and transfer of the Ghatwals, &c., as usual and customary on your estate, the Magistrate has no objection to the measure" (which the Raja had proposed to take), "nor is the Collector opposed to the step:" and in the reports of the Collectors to which we have already referred, it is stated, that it is the province of the Raja to appoint and dismiss the Ghatwals attached to the Khuruckpore estates; that he usually, but not always, makes a report to the Government when he does so, "that the settlement rests with him, and he raises or depresses the rent."
The appointment of Ghatwal has been continued, with the assent of the Government, up to the present time.
Upon this review of the evidence, their Lordships are of opinion, that if any attempt had been made in 1796 to resume these lands under the Regulation now in question, such attempts must have failed, and that, therefore, there can be no ground for the claim now set up by the Bengal Government.
It may be proper to notice the proceedings which have ended in the judgment against which the present appeal is brought.
It appears that on the 29th of November, 1836, the Government in India ordered that if the Ghatwally lands were of a nature to be resumed they be subjected to resumption.
The proceedings to be taken for the purposes of resumption, and the Court or tribunal which is to decide the matter, are of a special character.
The Collector of the District, or his deputy, enters on record, a claim to assess the disputed lands ; notice is given to the owners; upon their answers, and upon evidence, the Collector who has made the claim, or one of his deputies, decides upon its validity, and if either party is dissatisfied, there is an appeal to a Special Commissioner appointed by the Government.
On the 1st of May, 1838, Mr. Travers, then Special Deputy Collector of the Districts of Bhagulpore and Monghyr, entered the following claim on the part of the Government against Toofany Sing, Ghatwal, who was in possession of the disputed lands in this case:--
"Claim to assess 755 beghas of Ghatwally lands, situate on Ghat Foujdar Tuppa Dhumsaeen. As it appears from an examination of the Ghatwally books, furnished by the Magistrate of this District, for the year 1819, C.E., that the lands in dispute have been appropriated rent-free by the said defendant, as belonging to the said Ghatwally, and as it is necessary under Regulation II. of 1819, C.E., and Regulation III. of 1828, C.E., to enquire into the legality or otherwise of the deeds of grant, it is, therefore, ordered, that this case be numbered and placed upon the file of the Court, and that notice be served upon the Defendant."
It does not very distinctly appear from this statement of the claim, upon what grounds it was intended to be rested, but we collect that it was thought that these lands were not included in the estate of Khuruckpore; that they belonged to the Ghatwal; and that as no Settlement had been made with him, they were still the subject of settlement, or, in other words, of assessment.
The matter then came upon some interlocutory proceedings before Mr. Alexander, described as Officiating Special Deputy Collector of the Districts of Bhagulpore and Monghyr, and on the 10th of November, 1838, he made a minute in part in these terms:--
"It is consequently decided that these lands were conditionally granted : but, firstly, the officers do not perform those conditions; and secondly, the Government have no need of their services; besides which, it is evident that the said lands have not undergone any settlement up to the present time, for the settlement was effected in 1197, F.E., while the said lands were set apart in 1181, F.E.; and notwithstanding that 2 annas per begha used to be paid to the Zemindar for certain lands, yet, as that cannot be considered rent, but a simple fee, in acknowledgment of the right of the Zemindar, the said lands are consequently of a nature to be resumed." It was then ordered, "that the Defendant produce any document in his possession invalidating the above-mentioned circumstances within a week, otherwise judgment would go in favour of Government, without any plea in opposition being taken into consideration."
The Raja of Khuruckpore was apparently supposed to have nothing to do with the question; he was not made a party to the proceedings, nor served with notice of them; but, on the 27th of November, 1838, he presented a petition, stating that he was the owner of the land, and that Toofany Sing held under a lease from him.
The original Defendant put in his answer, stating, that he and his ancestors for several generations had held these lands at a rent of 2 annas per begha from the Raja of Khuruckpore, and that lands, including thirty-six original villages, beside others subsequently added, were held by the same tenure of the Raja.
A great deal of evidence was gone into; many inquiries were ordered, in the result of which, it distinctly appeared, that these lands were part of the estate of Khuruckpore, and had been included in the Settlement for that estate; and, accordingly, on the 9th of December, 1838, Mr. Alexander pronounced a decision founded on those proofs, in which he declared that the lands were of the nature of Chackeran lands; that they were not of a nature to be resumed; and he ordered the claim of Government to be dismissed.
Like decrees were at the same time pronounced, by Mr. Alexander in the ten other suits.
Not long after these judgments were pronounced, judgments to which no objection can be made, except that they ought to have awarded costs of suit to those who had resisted the claims made against them, Mr. Alexander, unfortunately for all parties, altered his opinion, and thought that although the suits might not be maintainable, on the grounds originally taken, they might be supported under clause 4, section 8, of Regulation I. of 1793, and he applied for permission to review his judgment.
The form of proceeding did not allow this to be done; and on the 31st of December, 1839, the Government appealed to the Special Commissioners bringing forward the clause just mentioned, and also insisting that the lands were not included in the Settlement of the Khuruckpore estate.
Before his appeal was heard, the interest of Maha Raja Rehmut Ali Khan, the original opponent of the Government, had been assigned to the father of the present Appellant, and he was admitted a Respondent to the appeal of the Government.
During the course of these proceedings, the same question had been raised by the Government with respect to other Ghatwally lands in other Pergunnahs of this Zemindary; and on the 29th of May, 1838, Mr. Travers, in some of these suits, decided in conformity and Mr. Alexander's decision, and dismissed the claim of the Government, and, it is said, that these decisions were confirmed by the Special Commissioner on appeal.
Other suits, on the other hand, of the same description, came before Mr. Alexander, who decided them, not in conformity with his first determination, but according to the view which he had subsequently taken.
On the 21st of May, 1841, the appeal in the present suit came before Mr. Elliott, Special Commissioner, who reversed the decision of Mr. Alexander, stating as the ground of his judgment, that it was evident that the Ghatwally lands in dispute in this case, as well as in the other Ghatwally suits, were distinct and separate from the Settlement made by the Government. He established, therefore, the claim of the Government, and ordered that all the costs of the suit should be borne by the then Respondents.
The concurrence of another Special Commissioner was necessary to give effect to this decision (a), and on the 27th of December, 1842, the case came before Mr. D'Oyley.
(a) See Ben Reg. III, Of 1828, sec, cl, 6 .
Mr. D'Oyley differed from Mr. Elliott, and the case was, therefore, remitted to Mr. Moore, Special Commissioner for Calcutta and Moorshedabad.
That gentleman directed an inquiry to be made of the secretary of the Sudder Board, for the purpose of ascertaining whether the Ghatwally lands had been excepted from the Settlement of the Khuruckpore estates or not; and finding that they had not been so excepted, he concurred in the opinion of Mr. D'Oyley, and ordered that the appeal of the Government in this, and the other ten suits of the same nature, should be dismissed.
The Government was still dissatisfied, and on the 19th of September, 1843, they applied for a review of the judgment.
The case came again, on several occasions, before Mr. Moore, who directed many more inquiries, the result of which, in the opinion of their Lordships, was to confirm the decision at which he had already arrived. Mr. Moore, however, considered that his former judgment was erroneous, and on the 9th of July, 1844, he reversed it. On the 9th of September, of the same year, the case came before Mr. Gordon, a Judge of the Sudder Court, vested with the powers of a Special Commissioner, under the orders of Government, who expressed his concurrence in that decision; and, at last, on the 27th of June, 1845, a final judgment in favour of the Government was pronounced by those gentlemen, resting their decision, as we understand it, on the ground that these lands were, in reality, lands granted for police establishments, and were to be considered as provided for in clause 4, section 8, Regulation I. of 1793.
From that decision the present appeal is brought to Her Majesty in Council, and it is scarcely necessary to say, that their Lordships must humbly report to Her Majesty their opinion that the decision complained of ought to be reversed. They have already sufficiently explained the reasons for their opinion, namely, that these lands are not properly within the meaning of the clause relied on by the Respondent, that they were a part of the Zemindary of Khuruckpore, and were included in the Settlement for that Zemindary, and covered by the jumma assessed upon it.
If any case should occur in which lands of Ghatwally tenure, though not, in their Lordships' opinion, properly falling within the meaning of the Regulation, have nevertheless been dealt with as such, and have not been included in the Settlement of 1793, such case will have to be decided upon its own circumstances, and will not be governed by their Lordships' present decision.
With respect to the costs of the proceedings which have taken place, their Lordships do not doubt that the Bengal Government, in bringing forward this claim, have acted under a sense of public duty, but it is an attempt to disturb, upon insufficient grounds, a Settlement which subsisted without dispute for above forty years, during all which time the right to disturb it, if it exists at all, existed with as much force as when the proceedings were instituted. The claim has been persisted in after several decisions against the Government by their own officers acting as Judges; the decree in their favour has been finally obtained upon grounds different from those on which it was originally sought, and the Appellant has been exposed to a long and most expensive litigation. Under these circumstances, their Lordships think that they should do but imperfect justice, if they did not humbly recommend to Her Majesty that the Respondent should be ordered to repay to the Appellant all the costs which they have received from him under orders of the Judges below, and should also be ordered to pay to him the costs which he has himself incurred in these proceedings, including the costs of the present appeal.
.