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Raja Bahadur Bhagwati Prasad Singh Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 965 of 1967
Judge
Reported inAIR1972All525
ActsTenancy Law; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 6
AppellantRaja Bahadur Bhagwati Prasad Singh
RespondentThe State of U.P. and ors.
Appellant AdvocateB.N. Asthana, ;B.P. Singh, ;Rajeshwari Pd. and ;S. Prakash, Advs.
Respondent AdvocateStanding Counsel
Excerpt:
property - malikana allowance - section 6(b) of u.p. zamindari abolition and land reforms act, 1951 - meaning and nature - malikana allowance paid to raja - payment by inferior proprietor to superior proprietor in respect of proprietory rights - exclusion of raja from settlement for payment of land revenue - cannot be taken - that his proprietory rights have been extinguished. - - montgomery recommended that, in those villages where there were moquddams, the settlement for payment of revenue be made with the moquddams and, in the villages where there were no inferior proprietors, the settlement for payment of revenue be made with the rajas. these i consider should be settled with the rajah as zamindar as no person can shew a better title than he can; the existence of proprietary.....g.c. mathur, j. 1. in view of the difference of opinion between satish chandra, j. and j.s. trivedi, j., the following question has been referred for opinion to me:-- 'on the facts and circumstances of the case, was the malikana allowance granted to the appellant as compensation for acquisition of his proprietary title in the 135 villages?' 2. the circumstances, in which the question arises, are as follows:-- the appellant and his ancestors, the rajas of daiya, were the taluqdars of taluqa daiya in pargana khairagarh, district allahabad. it appears that, in the beginning of the nineteenth century or at the end of the eighteenth century, pargana khiragarh fell into arrears and was taken over by the raja of banaras who made it over to one lal odwant singh, lal dokal singh son of lal drigpal.....
Judgment:

G.C. Mathur, J.

1. In view of the difference of opinion between Satish Chandra, J. and J.S. Trivedi, J., the following question has been referred for opinion to me:--

'On the facts and circumstances of the case, was the Malikana allowance granted to the appellant as compensation for acquisition of his proprietary title in the 135 villages?'

2. The circumstances, in which the question arises, are as follows:-- The appellant and his ancestors, the Rajas of Daiya, were the Taluqdars of Taluqa Daiya in Pargana Khairagarh, district Allahabad. It appears that, in the beginning of the nineteenth century or at the end of the eighteenth century, Pargana Khiragarh fell into arrears and was taken over by the Raja of Banaras who made it over to one Lal Odwant Singh, Lal Dokal Singh son of Lal Drigpal Singh, the Raja of Daiya, instituted a suit for the declaration of his rights and for possession over Taluqa Daiya. After about 27 years of litigation, by a decree of the King in Council, the suit was decreed, as a result of which Lal Dokal Singh obtained possession of Taluqa Daiya in 1837. About this time when Lal Dokal Singh obtained possession, settlement proceedings under Regn. VII of 1822, as modified by Regulation IX of 1833, were going on. The settlement proceedings were being conducted by Mr. R. Montgomery, Officiating Collector, Allahabad. He found that, in some of the villages of Taluqa Daiya, there were inferior proprietors known as Moquddums whilst, in other villages, there were no such inferior proprietors. In his report dated October 8, 1838 (Annexure 'A' to the counter-affidavit), Mr: Montgomery recommended that, in those villages where there were Moquddams, the settlement for payment of revenue be made with the Moquddams and, in the villages where there were no inferior proprietors, the settlement for payment of revenue be made with the Rajas. This was accepted. Accordingly, in 135, villages, some of which lay in the district of Mirzapur but were subject to the settlement proceedings, the settlement for payment of revenue was made with the Moauddams or inferior proprietors and a Taluqdari allowance or Malikana was fixed for the Raja at 18% of the revenue. The Moquddams or inferior proprietors were required to deposit the revenue and over and above the revenue an amount equal to 18% of the revenue in the Government treasury. This 18% was paid to the Raja as Taluqdari allowance or Malikana. Subsequently, the allowance was reduced to 10% of the revised revenue. A second settlement took place in 1876-77 and the same arrangement of settlement with the Moquddams for payment of revenue and for payment of Taluqdari allowance or Malikana to the Raja was continued. The payment of the Malikana continued to be made till the U. P. Zamindari Abolition and Land Reforms Act, 1951, came into force. The payment of Malikana was stopped by the Government with effect from July 1, 1952, on the ground that the allowance was in respect of the proprietary rights of the Rajas in the 135 villages and it determined under Section 6 (b) of the Act.

3. The main ground, on which the stoppage of the payment of Malikana bythe State Government is challenged, is that the Malikana was paid for the acquisition of the rights of the Raja of Daiya in the 135 villages and, therefore, it was not a right in respect of any interest in those villages which could be determined under Section 6 (b) of the U. P. Zamindari Abolition and Land Reforms Act. The case set up by the State in opposition to this is that the proprietary rights of the Raja of Daiya were not acquired in the settlement proceedings and that the Taluqdari allowance or the Malikana was payment towards dues in respect of the proprietary interest of the Raja in the 135 villages. The learned Single Judge, before whom the writ petition came up for hearing, was of the view that the right to Malikana in the present case was the right of the superior proprietor to receive 10% of the land revenue from the inferior proprietor through the State and was a right or privilege in respect of the land or its land revenue. He accordingly held that this right was determined under Clause (b) of Section 6 and dismissed the writ petition. The petitioner preferred a special appeal. The special appeal was heard by a Bench consisting of Satish Chandra and Trivedi, JJ. Satish Chandra, J. was of the view that the appellant's case that the Malikana allowance was paid as compensation for acquiring the Taluqdar's title was not correct. According to him, by making provision for the payment of Malikana, the Government recognised the right of the Raja to receive an allowance from an inferior proprietor and that the payment was secured to the advantage of the Raja by the arrangement that the inferior proprietor will pay to the State Government and the State Government will then pay it to the Raja. He was accordingly of the opinion that the appeal should be dismissed. Trivedi, J, was of opinion that the Malikana allowance was paid to the Rajas in lieu of their lost proprietary rights and, therefore, the allowance did not determine under Section 6 (b) of the U. P. Zamindari Abolition and Land Reforms Act. On account of this difference of opinion, the Bench referred the above mentioned question for opinion to a third Judge.

4. Sri Rajeshwari Prasad, learned counsel for the appellant, has argued the case before me at length. On his arguments, the following three questions arise for consideration:--

(i) Whether, in the settlement proceedings, the proprietary rights of the appellant's ancestor were acquired by the Government and whether he was given the Malikana allowance in lieu of the acquired rights;

(ii) Whether in view of the decision of the Supreme Court in the State of Bihar v. Maharaja Pratap Singh Bahadur, AIR 1969 SC 164, the Malikana allowance in the present case cannot but be held to bein lieu of the acquisition or extinction of proprietary rights of the appellant's ancestors; and

(iii) Whether on the settlement being made with the inferior proprietor, the proprietary rights of the superior proprietor must necessarily come to an end?

5. In the Government of the State of Uttar Pradesh v. Kunwar Sri Trivikram Narain Singh, AIR 1963 SC 799, the Supreme Court held that an allowance granted by the Government to a proprietor for the abandonment of his rights in certain mahals was not in respect of land or its land revenue and could not be extinguished by operation of Section 6 (b) of the U. P. Zamindari Abolition and Land Reforms Act. In order to bring his case within the dictum of the Supreme Court, the appellant asserted in paragraphs 5 and 6 of the writ petition as follows;--

'5. That 135 villages of Raja of Daiya were acquired by Regulation No. 7 of 1822 of the Bengal Regulations and in the settlement of 1838-39, the lands of those villages were settled with the resident communities of the villages and Raja ceased to have any proprietary interest in those villages.

6. That after the settlement of 1838-39, the Raja was granted a Malikana allowance of Rs. 3,344/4/- per annum from the Government for the villages of the Allahabad district and Rs. 414/- per annum for the villages of Mirzapur district.' The case set up by the appellant is that, by virtue of the settlement proceedings, the proprietary rights of the Raja of Daiya were acquired or extinguished and, in lieu thereof, a Malikana allowance was fixed. Settlement proceedings are not concerned with the acquisition or extinction of the rights of the existing proprietors. Such proceedings are for the purpose of assessing land revenue and for engaging with proprietors for payment thereof. In such proceedings, the existing rights in land are ascertained but no new rights are created and no old rights are extinguished. Bengal Regulation VII of 1822 was framed for the purpose of taking settlement proceedings in certain areas. From the long title and the preamble to the Regulation it is apparent that the object of the Regulation was to declare principles for making the settlement and to define, settle and record the rights and obligations of various classes and persons possessing an interest in the land. The regulation was not concerned with the acquisition or extinction of the existing rights or titles. It was under this regulation that Mr. Montgomery made the settlement in Pargana Khairagarh which included the Taluqa of Daiya. As already stated above, he found that, in 135 villages of the Taluqa, the Raja was the superior proprietor and the Moquddams were the inferior proprietors. Settlement in respect of such land was governed by Section X, First Part, of the Regulation. This provided: 'X. First. Of several parties possessing separate heritable and transferable properties in any parcel of land, or in the produce or rent thereof, such properties consisting of interests of different kinds, it shall be competent to the Governor-General in Council to determine and direct which of such parties shall be admitted to engage for the payment of the Government revenue; due provision being made for securing the rights of the remaining parties. It is further hereby declared and enacted, that it is and shall be competent to the Governor-General in Council, in confirming the settlement of any mehaul in perpetuity, or for a term of years, to determine and prescribe the manner and proportion in which the net rent or profit arising out of the limitation of the Government demand shall be distributed among the different parties possessing an interest in the lands appertaining to such mehaul, or in the rent or produce of such lands or mehaul.'

In accordance with this provision, settlement for the payment of land revenue was made with the inferior proprietors or Moquddams. In the initial report made by Mr. Montgomery to the Commissioner on October 8, 1938, he has made certain observations which are relevant to the present question. He has observed:

'The principle of making the settlement with the Moquddums or heads of the villages has been recognised in all cases, where proprietary communities are found to exist; their existence is, I think, here found with a right of management and occupancy in the different village communities, the Rajah being the head or Talookdar and as such of course entitled to his Talookdari allowance.

The third class consists of villages in which there are no communities and which are occupied by common cultivators; these I consider should be settled with the Rajah as Zamindar as no person can shew a better title than he can; whilst the 1st and 2nd classes, should, in my opinion, be settled directly with the Mocuddums, a Talookdary allowance being made to the Rajah.'

In respect of Taluqa Daiya, Mr. Montgomery observed in Paragraph 15:

'The Talooka is not now in the Rajah's possession, having lately been made over to Downkul Singh by a decree of the King in Council.

The same state of things is found here as in the other Talookas regarding which I would propose exactly the same arrangement, giving Downkul Singh the Talookdary rights and where there are no Mocuddums or the villages are occupiedby Guhrwars, making the engagement directly with him.'

The final report was submitted by Mr. Montgomery, after the settlement proceedings were over, on October 1, 1839. In paragraphs 31 and 32 he has stated:

'31. The principle of making the settlement with the Mocuddums or village communities in all Talookdaree Estates, where such a state of things is found to exist, has most wisely for the happiness of many at the recommendation of sudder Board, been recognised by Government. The existence of proprietary communities, with a right of management and occupancy, is here found in a more or less perfect state, according as the several communities had more or less power or influence to withstand the Rajah, he being considered the head or Talookdar, and as such of course entitled to his Talookdaree allowance, and nothing more.

32. In compliance, therefore, with the instructions I received dated 16th of October, I proceeded at once to make a detailed settlement with the village communities when they were found to exist, excepting however the Guhrwars or member of the Rajah's family, who had been permitted by him to hold the villages by favour, not by right; in all such cases, as also when no communities were in existence, the settlement was made with the Rajah. In Mucuddamee estate an allowance of 18 per cent has been granted to the Rajah.'

It is thus clear that the Taluqdari allowance which the Raja was entitled to receive from the inferior proprietors by virtue of his being the superior proprietor was preserved and quantified and its payment was secured through the Government Treasury. This was done according to the direction in Section X that due provision should be made for securing the rights of the other proprietors with whom the settlement was not made. The reports make it amply clear that the proprietary rights of the Raja or Taluqdar were not acquired or extinguished in the settlement proceedings. In fact, since the Taluqa had been restored to the Taluqdar only in 1837 by the decree of the King in Council, there was no occasion so soon thereafter to acquire or extinguish his rights. If the proprietary rights of the Taluqdar had been acquired or extinguished, then there would have been no question of payment of any amount by the inferior proprietor to the Taluqdar. The provision for the making of such a payment in the settlement, even though the payment was made through the Government Treasury, is consistent only with the continuance of the Taluqdar's rights and not with their extinction. It thus appears that, by this settlement, the Taluqdari rights of the Raja of Daiya were kept alive but the settlement was made with the inferior proprietors and provision wasmade for the payment by the inferior proprietors to the Taluqdar of a sum equal to 18% of the revenue on account of Taluqdari rights.

6. The second settlement was made in 1876-77 under the provisions of the North-Western Provinces Land Revenue Act, 1873 (Act XIX of 1873). Chapter III of this Act deals with settlement. Section 48 provides that, if the proprietor refuses to accept the settlement made, then he was to be excluded from the settlement and the mohal had to be framed out or held under direct management. In such a case, the person so excluded was entitled to an allowance out of the profits of the mahal of not less than five or more than fifteen per cent on the proposed assessment, Section 53 provided:

'53. Whenever several persons possess separate heritable and transferable proprietary interests in any mahal, such interests being of different kinds, the Settlement Officer may, under the rules for the time being in force, determine

(a) which of such persons shall be admitted to engage for the payment of the revenue, due provision being made for securing the rights of the others, and

(b) the manner and proportion in which the net profits of the mahal shall be allotted to the several persons possessing separate interests as aforesaid for the term of the settlement.'

In these settlement proceedings also, the settlement for the payment of revenue was made with the inferior proprietors and a Taluqdari allowance was fixed at 10% of the revenue for payment to the Taluqdar. In the final settlement report published and printed in 1878, the Settlement Officer has described the Raja of Daiya as the Taluqdar or superior proprietor of the villages settled with the Moquddams. Paragraph 34 of the report, which deals with Taluqdars or superior proprietors, reads thus:--

'The former class has already been noticed. It exists but in the trans-Jumna paragnas and was the result of Mr. Montgomery's discovering village communities. On these he bestowed a proprietary title, granting to the taluqdar or superior proprietor a malikana allowance of 18 per cent on the rental assets. This allowance has now been reduced by orders of the Board and Government to 10% on the revised assessment. This class of superior proprietors contains in this district three men only, the Rajas of Manda and Daiya in Khairagarh, and Manohar Das, purchaser of the rights of Bara Raja in Bara and Arail.'

In the order confirming the report, it is stated in paragraph 10:

'In 531 manals of the trans-Tumna parganas there are both superior and inferior proprietors. The former are three persons only -- viz., the Rajas of Manda andDaiya and Manohar Das, purchaser of the rights of the Raja of Bara. The settlement of the land revenue has been made with the inferior proprietors; and the allowance payable by them to the superior proprietors having been fixed at 10% on the revised land revenue and amounting in all to Rs. 24,077/-, is paid by them along with the revenue into the Government Treasury whence it is disbursed to the superior proprietors.'

The reports relating to the second settlement also show that, in respect of the 135 villages of Taluqa Daiya which were settled with the inferior proprietors, the Raja of Daiya continued to be the superior proprietor. The amount of 10% of the land revenue, which was paid by the inferior proprietors, was in respect of the rights of the Raja as superior proprietor. The proceedings of this settlement also do not support the appellant's case that the rights of the Raja of Daiya in the 135 villages settled with the inferior proprietors were acquired or extinguished. On the other hand, they show that the rights of the superior proprietors were kept intact and the inferior proprietors were required to pay a sum equal to 10% of the land revenue to the superior proprietors through the Government Treasury.

7. The case of the Raja of Bara, which was identical to that or the appellant, came up for consideration before this Court in a writ petition filed by Lalji Tandon son of Manohar Das, purchaser of the rights of the Raja of Bara. The Malikana allowance payable to the Raja of Bara had been transferred to Manohar Das and was inherited by Lalji Tandon. This allowance was also stopped by the State Government under Section 6 (b) of the U. P. Zamindari Abolition & Land Reforms Act. He filed Writ Petition No. 2838 of 1958 in this Court. The writ petition was allowed by a learned Single Judge but an appeal by the State Government (Special Appeal No. 248 of 1964) was dismissed by a Division Bench by its judgment dated May 18, 1966. The Division Bench observed:

'It is also clear from this document that the payment that the Raja was receiving as Malikana either in respect of macuddumi villages or in respect of those of which he was the sole proprietor was in the nature of his share in the assets of the villages and in recognition of his superior proprietary rights.

These paragraphs clearly show that the malikana was the 'taluqdari allowance' (superior proprietor's allowance), was connected with some villages, was fixed during settlement operations (fiscal, i.e., relating to the fixation of Jama or land revenue) and was not in the nature of pension or compensatory grant.

It also clearly shows that the Government was only an agency through which the malikana was paid to Manohar Das butthe actual payment was made by the inferior proprietors.'

The conclusion of the Bench was that the rights of the Raja were not acquired and that the Malikana was paid by the inferior proprietor to the superior proprietor in respect of his superior proprietary rights. The decision of the Division Bench is fully applicable to the present case and negatives the appellant's case of the allowance being a compensatory allowance for the acquisition of the rights of the Raja of Daiya in the 135 villages.

8. The second question is whether the word 'Malikana' has acquired a fixed meaning of an allowance in lieu of acquisition or proprietary rights and whether, for that reason, the origin of the allowance must be ignored. In AIR 1969 SC 164 (supra), on which the appellant places reliance the Supreme Court held:

'The proprietors of the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a century. The origin of this malikana allowance is not known. From lime immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex-proprietors in lieu of their lost proprietary right. Phillips in his Law Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the proprietors of the soil in Bihar universally claimed and possessed a right of malikana and he endeavoured in vain to trace its origin in Bihar. The malikana right of the excluded proprietors in Bihar was acknowledged in the Regulations passed on August 8, 1788. At the time of Permanent Settlement, the new grantees were forced to acknowledge this right (see Baden-Powell, Land-Systems of British India, Vol I pp. 516, 517). The Bihar Board of Revenue Misc. Rules, 1939, Article 342 p. 166 divides malikana into two classes. Malikana of the first class is for a term of years only, that is, during the currency of a settlement. Malikana of the second class is permanent. It states that 'the Bihar malikana falls under this class and is a compensation permanently granted to the proprietors...... It is of a pensionary nature and does not depend upon collections. The permanent malikana is payable at the treasury on April 1 and October 1, every year on presentation of pay orders issued by the Collector accompained by a life certificate of the recipient.

There can be no doubt that the malikana payable to the proprietors of the Gidhaur Estate is a permanent grant of money in lien of their proprietary rights in lands originally held by them. The proprietors retained certain estates. On the publication of the notification under Section 3 of the Bihar Land Reforms Act, 1950, the interest of the Maharaja in those estates was extinguished. But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.'

This decision can be of no help to the appellant. In that case, the malikana was a permanent grant and such a grant in Bihar was only in lieu of the lost proprietary rights. The position in the North-Western Provinces, which subsequently became the United Provinces, was quite different. There is nothing to show that, in U. P. also, the word 'Malikana' had acquired the same meaning. In the Land-Systems of British India by Baden-Powell, Vol. I, Malikana is dealt with at page 516. It is stated there:

'This term so often occurs in Bengal (and indeed in all revenue literature) that I may take this opportunity to explain it.

The revenue responsibility being on the land, Government is entitled to exclude the proprietor who refuses what the authorities deem a reasonable assessment; but in such cases it grants a 'malikana', or ex-proprietary allowance, to support the recusant during the period of his exclusion. This is not less than five or more than ten per cent on the revenue.

But the term malikana has also a wider application; it refers to any portion of the produce, or payment made in acknowledgment of a proprietary, or more commonly an ex-proprietary, right or title. It is well illustrated in Bihar; there the villages appear in many cases to have come under the landlord class of men who were leaders of troops and minor chiefs, or cadets of noble families, who so often, as we have already seen, established themselves as landlords over single villages and small estates. Small owners of this class cannot make terms with later conquerors, as large estate-holders can; and it came to pass that, under the Muhammadan rule, such petty landholders were displaced either by Muhammadan jagirdars, who got grants over their heads, so to speak, or by other minor grantees (lakhirajdars); further, under our own earlier revenue system, the country was farmed to outsiders, and in the end the newcomers had got so firmly fixed that the Permanent Settlement was made with them. But such is the force of custom, that the new grantees, and farmers, were always obliged to recognise the older ousted proprietors by making them a 'malikana' allowance. When our 'Government resumed a number of the lakhiraj estates and assessed them to revenue and settled with the present holders, the estate was often charged with paying the 'malikana' to the ousted proprietor.'

From this it appears that the word 'Malikana' did not have the same meaning everywhere and it was used also in the sense of an allowance payable to the superior proprietor. In the Supreme Court case itself, in dealing with the Malikana allowance under Bengal Regulation VII of 1822 and the North-Western Provinces Land Revenue Act, 1873, it was observed by the Supreme Court:

'The malikana was for a term of years when the proprietors were dispossessed from management temporarily. It was a permanent grant when the proprietor's rights in their lands were completely extinguished.'

The Malikana allowance in the present case was of the first kind. Both under Bengal Regulation VII of 1822 and the North-Western Provinces Land Revenue Act, 1873, the settlement of land revenue with the inferior proprietors was for a temporary period till the next settlement was made. It was certainly not a permanent grant in lieu of the extinction of the rights of the proprietor. Therefore, in my opinion, even though the allowance fixed under the two settlements for payment to the superior proprietor was called a Malikana allowance, it is not possible to hold that it was in lieu of the extinction of the proprietary rights of the Taluqdar or Raja. Even if it could be held that the word 'Malikana' had acquired a fixed meaning of an allowance paid for acquisition of proprietary rights, the use of the word 'Malikana' in the present case would not be conclusive. If the origin of the allowance is known, then the nomenclature given to the allowance is immaterial. The nature of the allowance must, in such a case, be gathered from its origin and history. In the case before the Supreme Court the origin and history of the allowance were not known and, therefore, since a permanent Malikana had always been in lieu of acquisition of proprietary rights, the permanent Malikana given to the Maharaja was also held to be of the same nature. Once the origin and history of the allowance are known, they cannot be ignored and the question as to the nature of the grant must be determined on that basis.

9. The third question is whether, merely on account of the Raja of Daiya being excluded from settlement, his proprietary rights must be deemed to have been extinguished. The earlier settlement was made under Bengal Regulation VII of 1822. Section X, First Part, clearly provided that the settlement may be made with the inferior proprietor, keeping intact the right of the superior proprietor to receive his dues from the inferior proprietor. Therefore, under Bengal Regulation VII of 1822, even though the settlement was made with the inferior proprietor, it did not extinguish the rights of the superior proprietor. The second settlement was made under the North-Western Provinces Land Revenue Act, 1873. Under Section 53 of this Act also, the position was identical. If a settlement was made with inferior proprietor, then due provision had to be made for securing the rights of the superior proprietor. This is exactly what was done in the settlement, the settlement being made with the Moquddums and provision was made for the payment of a Taluqdari allowance or a Malikana allowance by the inferior proprietor to the superior proprietor. This Act also kept alivethe superior proprietary rights, even thoughthe settlement was made with the inferiorproprietor. Therefore, in both the settlements, the rights of the superior proprietorwere specifically kept alive.

10. Learned Counsel for the appellant relied upon the decision of a Single Judge of this, Court in Bhagwan Das v. Manohar Lal, (1909) 6 All LJ 524. It was held in this case that, where a person did hot refuse settlement under the North-Western Provinces Land Revenue Act, 1873, but was excluded therefrom and allowed a Malikana allowance in recognition of the proprietary rights which he had originally possessed, his proprietary rights were thereby lost and he became the ex-proprietary tenant of the sir land which he had held as proprietor. An examination of the facts of this case reveals that one Data Ram was a Zamindar having four shares out of 100 shares in the village. In the earlier settlement, Data Ram had refused to accept the assessment offered by the Settlement Officer and accordingly settlement was made with the assignees of the Government revenue who were called Muafidars. Data Ram and other persons similarly circumstanced were allowed a Malikana allowance and were permitted to continue to hold possession of their sir land. In the settlement of 1874-75, Data Ram and others asked that settlement be made with them. The Settlement Officer, by an order dated October 1, 1875, refused to grant the application on the ground that Data Ram and others were not entitled to the settlement but only to be paid a Malikana allowance. The learned Single Judge found that Data Ram and others could not be excluded from settlement under the 1873 Act since they had not refused to accept the settlement. It was apparently on account of this illegal exclusion of Data Ram and others from the settlement that it was held that Data Ram and others lost their proprietary rights and, therefore, the Malikana allowance was in respect of the lost proprietary rights. That was not a case which was governed by Section 53 of the 1873 Act. The exclusion of the Raja or Talukdar from the settlement under Section 53 of the 1873 Act could not and did not result in the extinction of the proprietary rights, as this section specifically kept alive the rights of such proprietors and provided for a due provision being made for securing their rights. Bhagwan Das's case, therefore, does not support the appellant's contention.

11. Learned Counsel then relied on two decisions of the Board of Revenue: The first is Munshi Govind Prasad v. Suraj Baksh (Selected Decision No. 4 of 1903). This case arose in Avadh and was covered by the Oudh Revenue Law. It was observed in this case:

'An under-proprietor is just as much the owner of his land as a proprietor without the affix. He can deal with the likeany other proprietor and his interest isheritable and transferable. The point of distinction, in Oudh Revenue Law, is that theword 'proprietor' signifies the proprietor (orpart proprietor) of a mahal entitled toengage directly with Government for theland revenue. An under-proprietor is theowner of land within a mahal who doesnot engage directly with Government butpays his assessment to the proprietor of themahal.'

I do not see how these observations at allhelp the appellant. Possibly, in Avadh, asettlement could not be made with an under-proprietor. But the position here under theRegulation and the 1873 Act is quite different. The second case is Baiju Singh v.Narayan Din (Selected Decision No. 8 of1914). This case was also under the OudhRent Act. The question, which arose forconsideration in this case, was whether a'plot proprietor' was an under-proprietorwithin the meaning of the Oudh Rent Act.It was held that such a person, who paidrevenue to the Iambardar, was not an under-proprietor. It was observed:

'The test is not whether GovernmentRevenue is paid direct, but whether theright to engage for its payment exists.'

It was held that a plot proprietor had aright to engage for the payment of revenuewith the Government. This case also turned upon the provisions of the Oudh RentAct and can be of no help to the appellant.Therefore, from the mere fact that thesettlement for payment of land revenue hasnot been made with the Taluqdar or Raja ofDaiya, it does not follow that the proprietaryrights of the Taluqdar or Raja were extinguished.

12. I accordingly answer the question referred as follows:--

'On the facts and circumstances of this case, the Malikana allowance granted to the appellant was not by way of compensation for acquisition of his proprietary title in the 135 villages.'

13. Let the case be now laid before the Bench concerned with my opinion.


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