1. These are appeals in suits under Sections 150 and 154 of the Tenancy Act. The question for decision in both cases is the same, namely, whether the land was held rent free under a judicial decision previously to December 22nd, 1873, within the meaning of Section 151 of the Act. This section re-places parts of Section 30 of the North-Western Provinces Rent Act, 1881, which in turn replaced parts of Sections 79 and 80 of the North-Western Provinces Land Revenue Act, 1873. The history of the law relating to the resumption of rent free grants previous to the passing of the Act of 1873 will be found in Irvine's Rent Digest published in 1869. It is sufficient to say here that the Act of 1873 declared that the period of limitation theretofore applied to cases of resumption of rent free holdings should no longer be applied, but it was desired to avoid the re-opening of cases already judicially decided, Hence the provision now in question.
2. In view of the fact that the only known authorities on the meaning of this provision are decisions in cases which occurred in Oudh, I may point out that the provisions contained in Sections 79 and 80 of the above mentioned Act of 1873 were enacted for Oudh by Sections 52 to 55 of the Oudh Land Revenue Act, XVII of 1876, which has since been re placed (with modifications) by Chapter VII A of the Oudh Rent Act. All the Oudh provisions are not exactly the same as those enacted for the North-Western Provinces, because the old Regulations did not apply to Oudh, but the provision now in question is the same in both Provinces.
3. It has been held by the Board of Revenue in Daya Shankar v. Mazhar Husain Selected Decision No. 6 of 1909 that the decision of a Settlement Officer in Oudh pronounced in 1864 during the first Regular Settlement of Oudh that certain persons were entitled to be maintained in perpetuity in rent-free possession of land, was a 'judicial decision' within the meaning of Section 107B (b) of the Oudh Rent Act. But officers engaged in making the first Regular Settlement in Oudh had what we now call the powers of a Civil Court in cases relating to land, those powers having been conferred upon them by Lord Dalhousie's celebrated 'letter' of instructions to the first Chief Commissioner of Oudh, dated February 4th, 1856, and subsequent orders of a similar kind. No Courts other than those of Settlement Officers and their Assistants had any Jurisdiction during the continuance of the first Regular Settlement operations in any case relating to the possession of land or any right in respect of land, and this state of things was continued by Act XVI of 1865.
4. In the present case, the Assistant Collector speaks of the decision of 1869, which is relied upon by the respondents as a 'judicial decree.' There was certainly no decree in the ordinary sense of the word. It appears that when the settlement was being revised in the District, Dhonkal Singh, an ancestor of the respondents, presented a petition to the Assistant Settlement Officer praying that he might be recorded as holding the land rent free. Some witnesses were examined and the Assistant Settlement Officer came to the conclusion that Dhonkal Singh has been holding the land rent free by favour of the zemindars. He repelled the contention that Dhonkal Singh held the land rent free in lieu of malikana. On October 6th 1869, an order was passed by him that Dhonkal Singh should be shown in the papers as holding the land rent free. If the decision of Mr. Spankie in Amir Hasan Khan v. Gopal Ram 4 O.C. 252 is correct, it cannot be held that the land in question is 'held rent free under a judicial decision,' whatever may have been the powers of the Assistant Settlement Officer, for it is not by virtue of the Assistant Settlement Officer's decision that the land is or was held rent free. The Assistant Settlement Officer merely ordered that an entry should be made in the papers in accordance with what he found to be the existing state of affairs. It is clear from his order that he did not intend to give Dhonkal Singh any new or higher kind of right than he already possessed. But Mr. Spankie's construction of the words 'held rent free under a judicial decision' was not accepted by Mr. Baillie in the case of Daya Shankar v. Mazhar Husain Selected Decision No. 6 of 1909, cited above, and I am disposed to think that Mr. Baillie's view is the correct one. But the 'judicial decision' contemplated by Section 151 of the Tenancy Act and other similar provisions must surely be a judicial decision pronounced by an officer competent to deal with the matter. As far as I have been able to ascertain, the Assistant Collector, who passed the order now in question, had no power whatever to decide whether Dhonkal Singh had been entitled to hold the land rent free in the past or would be entitled to do so in the future. Before the passing of Act X of 1859, the Civil Courts alone had power to deal with cases relating to the resumption of rent free or revenue free grants. By that Act (Section 23), jurisdiction was conferred upon the Revenue Courts to entertain claims for the resumption of land held rent or revenue free under grants made after 1790. It is not suggested that the holding now in question dates from before 1790 and the presumption, as the old cases show, is that it does not. Under Act XIV of 1863, the Local Government obtained power to invest Settlement Officers with the powers of a Collector for the decision of certain classes of suits but suits or applications for the resumption of rent or revenue free grants are not included in those classes. It appears, therefore, that the Assistant Collector had no power to decide whether the land now in question should be held rent free. Moreover, his order shows that he did not intend to decide any question of right. All that he did was to enter the facts as he found them. The whole file of the proceedings is before me and it makes it quite clear that he was engaged in correcting the records in the usual way.
5. For the above reasons, I am of opinion that the respondents have failed to prove that the land now in question is held rent free under a judicial decision.
6. I allow the appeals, reverse the decisions of the lower Appellate Court in both cases and remand both of them to that Court to be disposed of according to law. Costs of these appeals to be costs in the cause.