Maheshar Parshad v. Muhammed Ewaz Ali Khan
BS652021
PRIVY COUNCIL
Before:-Lord Atkinson, Lord Collins, Lord Gorell, and Sir Arthur Wilson.
0 D/d. 24, 25.3/
11.05.1909.
Maheshar Parshad - Defendants
Versus
Muhammed Ewaz Ali Khan - Plaintiff
And Cross Appeal
On appeal from the Court of the judicial Commissioner of Oudh and the Court of the Commissioner of Fyzabad.
Solicitors for the Appellant taluqdar :- Barrow, Rogers & Nevill.
Solicitors for the Shukul Respondents :- T.L. Wilson & Co.
Oudh Sub-Settlement Act XXVI of 1866, rules 2, 3 and 13
Consolidated Appeals (1) from a decree of the Judicial Commissioner (December 13, 1904) affirming a decree of the Subordinate Judge of Sultanpur (February 10, 1904), and (2) by special leave from a decree of the Commissioner of Fyzabad affirming a decree of the Deputy Commissioner of Sultanpur (May 9, 1906) and from an order of the Board of Revenue (January 2, 1907).
At the time of the second summary settlement of Oudh the village of Gadaria Dih was settled with the plaintiff, Ewaz Ali Khan, the taluqdar of Mahona; the result was to confer on him the proprietary interest in the said village, subject to such measures as the Government might think proper to take for the protection of the under-proprietors. After negotiations with the taluqdars, the Oudh Sub-Settlement Act was passed in the year 1866, by which rules were made regulating the recognition of rights in land subordinate to the taluqdar.
At the time of the regular settlement Bhairon Parshad, the predecessor in title of the defendants Mahesher Parshad and others, advanced a claim for under-proprietary rights in this village against Rani Sadha Bibi, the predecessor in title of Ewaz Ali Khan. This claim was finally disposed of by an order of the Financial Commissioner of Oudh made on January 6, 1869, in terms following:-
"The provisions of the Sub-Settlement Act have not been complied with, but as the special appellants' agent is willing to compromise the suit, there need be no further difficulty in disposing of the case. I will only add that, as the original proprietor's title has not been proved, the plaintiffs are in no way entitled to sub-settlement which actually restores them under our rules to proprietary possession and makes the taluqdar who has been half a century in possession the mere recipient of malikana. I decree a framing lease to plaintiff, he paying the Government demand, plus 25 per cent. to the taluqdar for a period of thirty years."
One question in the appeal was as to the meaning of this order. The taluqdar contended that the lease was granted for the period of thirty years, while the lessees contended that they were granted a permanent heritable lease, the rent of which alone was fixed for the period of thirty years.
The lease in question expired on January 6, 1899, and, after three abortive notices of ejectment issued by the taluqdar previous to its expiration, he on January 11, 1900, sued the defendants hereinafter called the Shukuls for a declaration that they had no under-proprietary rights in the village, and that after January 6, 1899, they had ceased to be lessees.
In defence it was pleaded that the ancestors of the defendants were originally proprietors and later under-proprietors of the village, and that their interest in the village as lessees did "not terminate on the expiry of the thirty years provided by the judgment of the Financial Commissioner."
The Subordinate Judge decided that the defendants had no under-proprietary right in the village, that the Civil Courts could not decree the ejectment of a tenant, and that the proper Court top construe the judgment of the Financial Commissioner dated January 6, 1869, was the Revenue Court. He accordingly made a decree declaring that the defendants had no under-proprietary right in the village or in any part thereof.
The Appellate Court affirmed the decree, the judgment concluding as follows: "They have, therefore, no under-proprietary rights of any kind left. The way is now clear for the Revenue Courts to determine whether the lease decreed by the Financial Commissioner was only a lease for thirty years which has expired, rendering the appellants liable to ejectment by notice, or whether the lease was one in perpetuity, the rent of which might be revised after thirty years."
The passage in this judgment material to the issue whether the taluqdar was entitled to the declaration granted is: "In order to establish under-proprietary rights in any land it must be proved, among other matters, that a former proprietor has retained within the period of limitation, either by himself or by some other person or persons from whom he has inherited, possession of the land, which by virtue of his proprietary right he held as sir, or nankar, when he was in proprietary possession. As the ancestors of the appellants were never proprietors, they can therefore have no under-proprietary rights in any part of the village. We were asked to hold that the finding of the Financial Commissioner was without jurisdiction, as it was not shewn that the claims of the persons whom the appellants represent had been disposed of by the Settlement Officer otherwise than in accordance with the rules contained in the Oudh Sub-Settlement Act, but we declined to consider the question, as the Financial Commissioner was the final Court of appeal at the time, and it was for him to decide whether he had jurisdiction or not. In my opinion, it was altogether unnecessary for the respondent to institute the present suit for a declaration that the appellants are not under-proprietors of the whole or any part of the village, as the question was finally decided by the decision of a competent Court, which found that their ancestors had never been proprietors of the village. Their ancestor was no doubt recorded at the former settlement as holding certain plots as sir, or khudkasht, but as they did not hold them by virtue of any former proprietary right, the appellants are not under-proprietors of any of these plots."
The taluqdar thereupon issued a notice of ejectment under the Oudh Rent Act, and the Shukuls filed a suit to contest it, with the result that the Deputy Commissioner of Sultanpur and afterwards the Commissioner of Fyzabad decided that under the terms of the Financial Commissioner's judgment of January 6, 1869, a perpetual farming lease was granted to the lessees, and from the final decree to that effect the taluqdar obtained special leave to appeal.
Kenworthy Brown, for the appellants, the Shukul defendants, contended that they were not liable to ejectment. It was shewn that their predecessor in title had under-proprietary rights in the village on and before January 6, 1869, and the decree of March 15, 1864, was conclusive in their favour. The Financial Commissioner had no jurisdiction by his judgment of the later date to deprive them of those rights or to cancel the decree of March 15, 1864, and properly construed his judgment did not purport so to do. The judgment under appeal erred in so construing the judgment of January 6, 1869, as to give it the effect of depriving the appellants' of their permanent tenure. The Revenue Court were right in holding that the mention of thirty years did not determine the duration of the holding, which had already been decided to be a permanent one, but denoted that the conditions of the holding were to remain unaltered for thirty years, which was the ordinary duration of the settlement period. It was not intended to extinguish right which had been authoritatively declared, and the Shukuls accordingly remained permanent lessees, liable to a revision of the terms of their holding, but not liable to ejectment. Reference was made to Oudh Revenue Court Act XVI. of 1865, preamble and section 2; Oudh Sub-Settlement Act XXVI. of 1866, section 1, section 2, rules 2, 3 and 13 in the schedule; Skyes' Compendium, pp. 130, 135, 136, 142, 144, 148. See also Oudh Rent Act XIX. of 1868 and Oudh Rent Act XXII. of 1886, section 3, clause 8, 9 and 10, as to the meaning of "under-proprietary right," and sections 52, 53, and 55 as to the ejectment of tenants. With regard to the respondent's suit it was contended that it was barred by limitation, and reference was made to Imdad Husain v. Azizunnissa, (1895) L.R. 23 Ind. Ap. 8, 16; Widow of Shunker Sahai v. Rajah Kashi v. Rajah Kashi Pershad, (1873) L.R. Ind. Ap. Supp. 220, 235; Drig Bijai Singh v. Gopal Datt Panday, (1879) L.R. 7 Ind. Ap. 17, 21, 22. As to the effect of confiscation on under-proprietary rights see Thukrain Sookraj Koowar v. Government, (1871) 14 Moo. Ind. Ap. 112, 121.
De Gruyther, K.C. and Dube, for the respondent, contended that there was no evidence of the Shukuls being entitled in under-proprietary right to the village in suit. Reference was made to Oudh Revenue Courts Act XVI. of 1865, section 2 and 5; Act XIII. of 1866, section 1; Act XIX. of 1868, sections 3 and 5. The real question for decision was as to the effect of the judgment of January 6, 1869. It was contended that judgment was authorised by the Oudh Settlement Act XXXVI. of 1866, rules 2, 3, and 13 and was accordingly valid and binding. In effect it was to place the Shukuls in the position of lessees for a fixed term, and as that term had expired they were liable to ejectment. There was no evidence on which an under-proprietary right could be decreed. The taluqdar had adopted the right procedure for the purpose of enforcing his right to eject. See Oudh Rent Act, 1886, section 108, sub-section 4; Skyes, pp. 14, 378, 285, and 289; Oudh Revenue Courts Act XVI. of 1865, section 2.
K. Brown, in reply.
Cases Referred :-
Drig Bijai Singh v. Gopal Datt Panday, (1879) L.R. 7 Ind. Ap. 17, 21, 22.
Imdad Husain v. Azizunnissa, (1895) L.R. 23 Ind. Ap. 8, 16.
Thukrain Sookraj Koowar v. Government, (1871) 14 Moo. Ind. Ap. 112, 121.
Widow of Shunker Sahai v. Rajah Kashi v. Rajah Kashi Pershad, (1873) L.R. Ind. Ap. Supp. 220, 235.
JUDGMENT
The judgment of their Lordships was delivered by
1909 May 11.
Lord Atkinson :- The matter in controversy in these two consolidated appeals is the right of one Muhammad Ewaz Ali Khan (hereinafter called "the taluqdar") to recover possession, either in the Civil Courts or in a Revenue Court, of a village situate within the ambit of his taluq, named Gadaria, from the present holders, Maheshar Parshad Shukul and Hargopal Shukul, a minor under the guardianship of Maheshar Parshad, named in the proceedings "the Shukuls". The two main, if not the only, questions for their Lordships' decision are (1) the proper construction of the 13th rule in the Schedule of Rules attached to the Oudh Sub-Settlement Act, No. XXVI. of 1866, and (2) the proper construction of a certain order or decree made on January 6, 1869, by L.Barrow, Financial Commissioner, in a suit of proceeding in which one Bhairon Shukul, the predecessor of the present holders, prayed as against Rani Sadha Bibi to be entitled to a pucca lease of the said village with other lands.
The case arises out of the settlement of Oudh. There has been an immense amount of litigation between the parties, and much conflict of opinion on their respective rights. On February 2, 1864, the above-mentioned Bhairon Shukul instituted a suit in the Court of the Settlement Assistant Commissioner against Rani Sadha Bibi, described as "taluqdar Mahona," praying for an under-proprietary settlement in the said village of Gadaria and other lands. On March 15, 1864, judgment was pronounced in this suit by W.E. Forbes, Assistant Settlement Officer, and a "permanent lease of Mauza Gadaria Dih with Hasanpar" decreed in favour of the plaintiff, and he was ordered to pay malikana to the defendant "at the rate of 25 per cent. on the revised jama." This judgment was affirmed by the Settlement Commissioner and the Chief Commissioner. It was admitted in argument that under-proprietary right in any land in this settlement of Oudh meant the right to hold the land in perpetuity for a heritable and alienable estate at a fixed rent, subject to a revised assessment; and though to words "permanent lease" are used in this decree, it cannot have been meant that the relation of landlord and tenant was to be created between the parties. The rights the plaintiff claimed were "under-proprietary rights." The decree commences thus: "After a careful consideration of all the evidence and the facts brought to light thereby in this case, I have come to the conclusion that the plaintiff's claim to a permanent lease is a good and just one"; so that it is evident that the Assistant Settlement Officer regarded a "permanent lease" and "under-proprietary rights," when applied top the tenure of such lands as these, as convertible terms.
The Oudh Sub-Settlement Act received the assent of the Governor-General on October 12, 1866. Very soon after Rani Sadha Bibi presented under this Act a petition to L. Barrow, the new Financial Commissioner, for a review of the late Financial Commissioner's judgment.
On January 17, 1867, judgment was delivered, and the case was ordered to be remanded to the Settlement Court for reinvestigation under the new rules on the ground that it did not appear from the judgments of the lower Courts that the respondent's possession was "sufficiently continuos to entitle him to sub-settlement," and that it was doubtful whether he even then could get sub-settlement, or sir, equal to the profits of his lease. Other proceedings were taken, and ultimately, on January 6, 1869, the same Financial Commissioner pronounced a decree in the following terms:-
"It appears that the mauza in suit was included in taluqa Mahona in 1228 Fasli, having previously been incorporated in taluqa Deokali in or about 1192 Fasli, but the Upadhias from whom the plaintiff claims were not in proprietary possession on either of these occasions. The Settlement Officer, however, supposes that plaintiff and his forefathers have been in sub-proprietary possession, and that plaintiff is entitled to a decree for sub-settlement, and further, appellant's agent expressed his willingness to come to terms.
"The provision of the Sub-Settlement Act have not been complied with, but as the special appellant's agent is willing to compromise the suit, there need be no further difficulty in disposing of the case. I will only add that as the original proprietary title has not been proved, the plaintiffs are in no way entitled to sub-settlement, which actually restores them under our rules to proprietary possession, and makes the taluqdar, who has been half a century in possession, the mere recipient of malikana. I decree a farming lease to plaintiff, he paying the Government demand plus 25 per cent. to the taluqdar for a period of thirty years."
It is contended that this decree was made without jurisdiction and is therefore a nullity, with the result that the result that the earlier decree of March 15, 1864, stands, and the Shukuls are therefore entitled to remain in possession of the village by virtue of the under-proprietary rights which that decree gave them.
The answer to this question depends on the construction of the 13th of the above-mentioned rules. It runs thus: "13.- Cases in which claims to under-proprietary rights have been disposed of otherwise than in accordance with these rules will be open to revision, but this rule will not apply to cases disposed of by arbitration or by agreement of the parties."
Rule 2 prescribes what a claimant must prove in order to obtain a sub-settlement (which is nothing more than an authoritative ascertainment and declaration of his under-proprietary rights), and enacts, amongst other things, as follow: "He must shew that he possesses an under-proprietary right in the lands of which the sub-settlement is claimed, and that such right has been kept alive over the whole area claimed within the period of limitation. He must also shew that he, either by himself or by some other person or persons from whom he has inherited, has, by virtue of his under-proprietary right, and not merely through privilege granted on account of service, or by favour of the taluqdar, held such lands under contract (pucka) with some degree of continuousness since the village came into the taluqa."
Rule 3 prescribes how the words "some degree of continuousness" are to be interpreted. Claims which have been theretofore disposed of "otherwise than in accordance with these rules" within the meaning of rule 13 must therefore refer to those claims which have not been supported by the proofs prescribed by rules 2 and 3, amongst others, for the establishment of future claims. Rule 13 would therefore be meaningless unless it authorised an inquiry into those matters. The argument, however, is that, even if upon this inquiry it should be ascertained that the claimant had not proved and could not prove any of the matters prescribed by rules 2 and 3, the Chief of Deputy Commissioner should simply abstain from making an order or decree for sub-settlement, and should leave the claimant in the secure possession under the old decree of the under-proprietary rights to which it had been ascertained he was entitled according to the new standard. In their Lordships' opinion this contention cannot be sustained. Sub-settlement was not a new thing giving some extra right or privilege over and above what was secured by a decree finding that a person was possessed of under-proprietary right. And the history of the Act together with its provisions and the rules attached to it shew that the object and purpose with which it was passed were to revise and correct what had been hastily and imperfectly or loosely done, and to secure that no person should enjoy under-proprietary rights who could not establish his claim in the manner prescribed by those rules. Revision would be a perfunctory and useless operation on any other terms.
Their Lordships therefore think that the Financial Commissioner had jurisdiction to make the decree of January 6, 1869, and that it is a valid and binding decree.
The next question is, What is its meaning? It is urged that it in effect grants the plaintiff a perpetual lease, that the period of thirty years mentioned in it is the period which is to elapse before revision, and that the taluqdar is practically left in the same position as he was in under the earlier decree, save only that he has not right to alienate; though why he should not have that right is not shewn. But the whole frame of the decree shews that it never could have been intended to put the plaintiff in such a position. He was not a taluqdar not not an occupier, and was found not to be a person possessed of under-proprietary rights. The decree does not put him into possession of the land, but merely entitles him to farm the rents of the occupiers. The whole thing was a compromise and more or less of an anomaly, and, though the Financial Commissioner gave him a valuable right, he cold not, in the face of his own declaration that the provisions of the Sub-Settlement Act had not been complied with, and that the plaintiff was "in no way entitled to sub-settlement" which would restore him under the rules to proprietary possession and make the taluqdar "a mere recipient of a malikana," have intended to put him into a position almost as beneficial as if he had all the qualifications he is stated to have lacked. Their Lordships are therefore of opinion that the lease decreed was only a lease for a term of thirty years from the date of the decree. That being so, the taluqdar would be entitled to recover possession if he took the right steps and proceeded in the right tribunal. He served a notice of ejectment under the provisions of section 52, sub-section 2, of the Oudh Rent Act, 1886. That appears to be the right course, having regard to the provisions of section 54. No objection has been taken in the arguments to the form of the notice or to the service of it. Section 108 of the Act prohibits all Courts other than Courts of Revenue from entertaining suits by a landlord for the ejectment of a tenant. According to the construction their Lordships have put on the decree of January 6, 1869, the Shukuls are now in the position of tenants whose tenancy has expired.
The taluqdar is therefore entitled to a declaration such as in asked for in the suit instituted by him on January 11, 1900, in the Court of the Subordinate Judge of Sultanpur, namely, that the Shukuls are not entitled to the rights of under-proprietors, or to any rights other than those of tenants for a term of thirty years whose time has expired, but not to any further relief. The decree dated December 13, 1904, of the Court of the Judicial Commissioner of Oudh is in their Lordships' opinion right and should be affirmed.
The Shukuls, however, instituted a suit in the Court of the Deputy Commissioner of Sultanpur, under section 108, sub-section 8, of the Oudh Rent Act, 1886, in which they prayed that the above-mentioned notice of ejectment might be cancelled. The Deputy Commissioner on May 9, 1906, made a decree cancelling it, and holding that the Shukuls were entitled to a perpetual to the Court of the Commissioner of Fyzabad. On August 13, 1906, that Court made an order dismissing his appeal. Against this order the taluqdar appealed to the Board of Revenue for the United Provinces of Agra and Oudh, but by an order of that Board dated January 2, 1907, his appeal was dismissed. Against this order and the decree of the Commissioner of Fyzabad the taluqdar has, by special leave, appealed to His Majesty in Council, and his appeal has been consolidated with the first-named appeal. Their Lordships are of opinion that the orders appealed against by the taluqdar were wrong and should be reversed.
Their Lordships will therefore humbly advise His Majesty that the first-named appeal should be dismissed; that the taluqdar's appeal should be allowed; that the orders or decrees of the Board of Revenue for the United Provinces of Agra and Oudh, the Court of the Commissioner of Fyzabad, and the Court of the Deputy Commissioner of Sultanpur, dated respectively January 2, 1907, August 13, 1906, and May 9, 1906, should be reversed; and that the action instituted in the last-mentioned Court should be dismissed, with costs throughout, but without prejudice to the claims made by the Shukuls in paragraph 7(f) of their plaint in the said action under section 57 of the Oudh Rent Act, 1886.
The appellants in the first-named appeal must pay the costs of that appeal, and the respondents to the taluqdar's appeal must pay his costs of that appeal.
.