1. This is an appeal by the defendants and arises out of a suit brought] by the plaintiffs for a declaration that mauza Khururi, a village in Kumaun, wad a pucca khaikari village. The appeal came up for hearing before a Bench of this Court on 24th February 1937 when we remitted certain issues to the lower Appellate Court under Order 41, Rule 25, Civil P.C. That Court has returned its findings and objections have been taken to those findings by learned Counsel for the plaintiffs-respondents.
2. Before we discuss the findings and the objections taken to them, it is necessary to state in some detail the nature of the tenure with which we are concerned in the present case. In our former order, quoting from Stowell's Manual of the Land Tenures of the Kumaun Division, we pointed out that there were two distinct tenures which have unfortunately been called by the same name 'khaikari' in Kumaun, One class of tenure is what may be called the under, proprietary khaikari, that is pucca khaikari, and the other, the occupancy khaikari or kaohoha khaikari. The first class consists of ex. proprietors who have still got under-proprietary interests in the land and are superior to ordinary occupancy tenants, while the second class consists of mere occupancy tenants. The pucca khaikars are really representatives old proprietors who hold the entire area of the village in virtue of having first reclaim ed it from waste. In olden days the collection of revenue was farmed to influential landholders in the neighbourhood who began to assert rights over the tracts entrusted to them even after the British revenue settlements had been introduced; although their official position as collectors and farmers of revenue was abolished. In course of time they established themselves in a kind of quasi-feudal position as over, lords of the villages of such tracts and were generally known as sayana, and the cultivators continued to pay them various dues in kind or service. These dues were not of the nature of rent and did not imply that the sayana had any proprietary title in the villages; they were really a remuneration for the many services which he could render in deciding disputes or representing the people before higher authorities, and a tribute of respect to his higher birth and position (p. 82 of Stowell's Book). Thus the pucca khaikars had proprietary interest in the land, though they were inferior in rank to the sayana who established themselves as overlords. These pucca khaikars are in all respects equal to proprietors with the exception that they cannot sell their holding and they pay a small sum in addition to the quota of revenue due from the land recorded in their names (Sir Henry Earn-say's Kumaun Report, p. 15). This small sum is paid as malikana to the hissedar. The proprietors or the hissedars have no power to interfere with these khaikars or their land, waste or cultivated (Sir Henry Ramsay's Report p. 16).
3. In E.K. Pauw's report on the Tenth Settlement of the Garhwal District, the following passage regarding khaikari tenure has been quoted from Mr. Traill who, it might be mentioned, made a settlement of the Kumaun Division in the year 1817:
Where the land granted was already held in property by others, those occupant proprietors, if they continued on the estate, sank into tenants of the new grantee, who, moreover, by the custom of the country, was permitted to take one-third of the estate into his own immediate cultivation or sir, Of the remainder of the estate, the right of cultivation rested with the original occupants, who ware now termed khaikars or occupants is distinction from thatwan or proprietor.
4. Mr. Pauw then goes on to say:
It would appear that if the grantee did not at once exercise his right to take part of the village Into his own immediate cultivation, he was subsequently debarred from getting a footing there at all, and remained entitled merely to his manorial dues.
5. It seems that the former class of village, where the grantee or the sayana or the hissedar took a portion of the estate into his immediate cultivation, became a kachcha khaikari village and the second class of village where the grantee did not at once exercise his right to take a part of the village into his own immediate cultivation became a pucca khaikari; village. Bearing the above observations in view, one has got to consider the facts of the present case. At the time of Traill's Settlement of 1817, the village consisted of about 225 nalis, but we cannot find out how much of it was in the cultivation of the original occupants. We come then to Beckett's Settlement (1862.1873) when according to the statement of Murlidhar Pant, the land record peshkar, the measured land in village Khururi was 570-14/16 nalis. Out of this, 486.6/16 nalis was in the cultivation of khaikars. Out of the balance of 84-8/16 nalis, 58.13/16 nalis was recorded as Gaon Sanjaits Parat Bahak land, 3-3/16 nalis was recorded as malguzari land, and 22-9/16 nalis was recorded as having been gifted to one Bachi Earn. There is a slight error of 1/16 nali in the above statement of facts, but that is how the statement of Murlidhar runs. It is stated on behalf of the plaintiffs that the above state of affairs shows that the village Khururi was a pucca khaikari village, because practically the whole of the measured and cultivated land was in the possession of khaikars, whereas it is argued on behalf of the defendants that the above state of affairs is consistent only with the village being a kaohoha khaikari village, because 84.8/16 nalis was entered as the khudkasht of the hissedars. It is clear that 84.8/16 nalis require some discussion, because the whole controversy ranges round that area. Now 58-3/16 nalis are entered as Gaon Sanjait Parat Bahak land according to Stowell's Book, p. 39:
The undivided village land is usually managed by the malguzar or padhan on behalf of the panch hissedars. Theoretically all the hissedars should profit by it proportionately to the extent of their shares either by holding a portion of the land or by receiving a share of the profits to go towards paying their shares of the revenue assessed on it (if any) and perhaps a little more.... In practice however, there are various methods of holding or managing such land. In some cases the hissedars themselves cultivate it in fairly proportionate shares by mutual consent and pay the proportion of the revenue due from them according to the amount of the recorded Bhares. In other cases, where forest and waste land is scarce, the gaon sanjait is left uncultivated and preserved for pasture, the hissedars paying the revenue as above.
6. Gaon Sanjait land may therefore either be under the cultivation of the hissedars or might be left uncultivated and preserved for pasture, but this area of 58-13/16 nalia is recorded as Gaon Sanjait Parat Bahak land, and according to an observation at p. 41 of Stowell's Book, this is uncultivated waste land which is measured but on which no revenue is assessed. It appears that Mr. Beckett had issued instructions to the amins that only terraced land should be measured, but these instructions were not quite followed and some other lands were also measured, and when the mistake was discovered, the measurement was allowed to stand but no assessment was made on such lands. It is difficult therefore to say straightway whether this land was at all cultivated at some time by the hissedars or whether it was left by the village community for purposes of pasture and grazing. The learned District Judge before remand observed as follows:
The Gaon Sanjait Parat Babak is what one might, call old fallow land once cultivated but out of cultivation for a long time. Two persons, Lacham Singh and Bhagat Singh, are entered as strains and they are also zamindars. As this land was not cultivated at the settlement the entry cannot be based on seeing these men in actual possession, and we cannot therefore say for certain if they did cultivate it or for how long nor why they gave it up and for all that one known this may be an attempt by (the) zamindar to get a footing which was defeated by the khaikar.
7. It would appear that he was of the opinion that the entry of Lacham Singh and Bhagat Singh zamindars being in cultivatory possession of this land was more or less fictitious. The learned District Judge after remand (who, it might be mentioned, was a different officer) examined Murlidhar Pant, the land record peshkar, again and got from him the fact that out of a total area of 58-13/16 nalis, 28.12/16 nalis are shown as under cultivation and 30-1/16 nalis as ijran, that is fields that might be cultivated every fifth or sixth year. There is then smother entry which is not quite intelligible, because in respect of 27-8/16 nalis Lacham Singh appears as sirtan, while in respect of 18-8/16 nalis Lacham Singh and Bhagat Singh appear as sirtan. No sirtan is entered as against 12-13/16 nalis. If only 28-12/16 nalis are shown as under cultivation and 30-1/16 nalis are shown as ijran, it is curious how Lacham Singh and Bhagat Singh appear as sirtans against 46 nalis. It is also remarkable that the entries have remained the same, though Lacham Singh and Bhagat Singh have been dead for years. Prom these entries alone it is not possible to come to a definite conclusion that the hissedars, Laoham Singh and Bhagat Singh, had actual cultivatory possession over 58.3/16 nalis. Mr. Stowell in his Book at pages 17 and 18 says:
Owing however to venality, carelessness or ignorance on the part of the amins, who made the original entries, and the lack of intelligence and of caution on the part of the villagers, a great many wrong entries remained uncorrected; in very many cases the villagers concerned never discovered that the entries were wrong for years afterwards. These mistakes are most common in the older records, such as those of 'Mr. Beckett's settlement, which still hold good for all the old cultivation in Almora, and they consist most frequently of the entry of specific fields in the names of the wrong hissedar or khaikar, though there are a good number of mistakes due to the mistaken entry of the names of certain men as cosharers in joint shares.... It is therefore necessary to enter a caution against giving the settlement records in the hills any such weight of presumption as attaches to the regularly revised and checked village papers in the plains. In the : case of the latter papers the much greater familiarity of the people with their annual records and the greater caution taught by experience is a further safeguard against error,
8. From the entries in connexion with 58.13/16 nalis which we have discussed so far, it would be dangerous to come to any definite conclusion as to whether these nalis were ever the khudkasht land of the hissedars, more particularly when the learned District Judge after remand says:
It is probably correct that it is waste land used as gauchar of the village. I would therefore hold that this area of 58-13/16 nalis is in no one's possession at present.
9. It is extremely unlikely that the hissedars, who are interested in denying that the village is a pucca khaikari village, should have allowed any area of land to pass out of their cultivatory possession, if it was ever in their effective possession. We are further strengthened in this view by the fact that in the year 1903 at the time of Goudge's Settlement, when 838-13/16 nalis were brought under cultivation, the zamindars were entered as against the same 58-13/16 nalis (Gaon Sanjait Parat Bahak land) only, whereas the khaikars brought over 250 nalis nayabad under their cultivation. One would have expected that when fresh land was being reclaimed the hissedars along with the khaikars would have tried to reclaim some more land near about the land which was already in their possession. We are therefore inclined to hold that we should ignore these 58-13/16 nalis which are entered as Gaon Sanjait land at the time of Beckett's Settlement and not draw any deductions adverse to the plaintiffs from the above entry.
10. Then there is a small area of 3-3/16 nalis entered as malguzari land. This area of land is presumably not in the possession of a khaikar, but this might also be ignored, There is usually in the villages of Kumaun a padhan or malguzar who is the head of the village community, collects the revenue and is also a police officer; he manages the village common land and its affairs generally subject to the approval of the hissedars, and provides coolies for carriage, etc., according to custom. (Stowell's Manual p. 105). His remuneration com. manly takes the form of padhanchari land, which is held by him, rent and revenue free, as sirtan of the State as hissedar (Stowell's Manual p. 110). The holding by a padhan hissadar of padhanohari land in a khaikari village is not a holding of khud-kaeht, He holds such land in the capacity of a sirtan of Government and not with hissadari right in it (Stowell's Manual p. 91), No inference adverse to the plaintiffs ought to be drawn from the entry of this email area as malguzari land.
11. We have now to consider 22.9/16 nalis said to have been gifted by the hissadars to Bachi Ram according to the learned District Judge, after remand, this gift was made by the whole body of hissadars. It is not however quite clear from the records whether the gift was only regarding 12.7/16 nalis or 22-9/16 nalis. According to the statement of the land record peshkar, 10.2/16 nalis appear as the khudkasbt of Bachi Ram while the remaining 12.7/16 nalis are shown both in the tahris and also in the muntakhib as gifted by the hissadars. It was assumed by the learned District Judge before remand that the entire 22.9/16 nalis were gifted by the hissadars. It has been made quite clear by the learned District Judge after remand that Bachi Ram is a khaikar in respect of 92.7/16 nalis and that these 22-9/16 nalis are different from the 92-7/16 nalis. Although we remitted an issue on the point as to how this gift was made, the finding on remand is not quite satisfactory, and we are not surprised, because the finding after all could be on the basis of the revenue records which themselves do not point to any definite conclusion. Bachi Barn's name does not appear as a hissadar up to the time of Beckett's Settlement, and we do not know there is an entry of 10-2/16 nalis as his khudkasht, nor do we know the circumstances under which a gift was made to him in respect of 12-9/16 nalis. There is no record of any area of 12-9/16 nalis being ever in the possession of the hissadars who are said to have gifted the same to Bachi Ram. If however a khaikar acquires some hissadari right over his own holding or other holdings in the village, there is no reason why he should not continue to be a khaikar in his cultivating possession (p. 91 Stowell's Manual). Bachi Bam was succeeded by Kishan Dev, who in his turn was succeeded by Jibua, and the names of all these three persons appear against 22-9/16 nalis. Chandramani, son of Jibua, was produced as a witness after remand, but his evidence is not quite satisfactory, and this is not strange, because at the present moment he occupies two different capacities, one as a hissadar and the other as a khaikar. There is no doubt however that Bachi Ram and his descendants are khaikars in respect of 92 nalis at least, and the mere fact that he has acquired hissadari rights in the village would not change the character of the village. Bachi Earn, according to the reoord, was in possession of 10-2/16 nalis from before - we do not know if he was in possession thereof as a khaikar nor do we know if he was in possession of it as a hissadar; and a gift of another 12-7/16 nalis was made to him by the hissadars which land never seems to have been entered as the khudkasht of any hissadar and all this might be an attempt by the hissadars to make it appear that some of them were in possession of a small area of land as khudkasht. We are not prepared to draw an inference adverse to the plaintiffs from the entry of 22-9/16 nalis against Bachi Ram.
12. We have discussed all the entries at the time of Beckett's Settlement and our conclusions have been stated as above. We now come to Mr. Goudge's Settlement of 1903. As stated before, some nayabad land was brought into cultivation during the course of about 30 years and the measured land in 1903 was 838-13/16 nalis. Out of this, 738-7/16 nalis were in possession of khaikars, 58-13/16 nalis were entered as Gaon Sanjait Parat Bahak land, 3-3/16 nalis were entered as malguzari land, 22.9/16 nalis were entered against Bachi Earn, 15-4/16 nalis were entered as the khudkasht of certain hissadars. It is not necessary for us to discuss any entry except the one relating to 15.14/16 nalis. Our observations regarding the other entries hold good even at the time of Goudge's Settlement. These 15-14/16 nalis are undoubtedly distinct from the previous 58-13/16 nalis inasmuoh as it was all newly recorded land, but the curious feature about these nalis is that the sirtans shown against these are Jivanand, Kulomoni, Bhandev and Lachi who are all khaikars. It is practically impossible to express an opinion, as the learned District Judge after remand says, as to whether these khaikars were previously in possession of this land inasmuch as this land was all probably nayabad; but even here we get no entry of any hissadar being in actual physical possession of this area without the intervention of sirtans who as we mentioned before, are all khaikars. We cannot therefore say that the hissadars managed to obtain effective possession over any extra area of land even in 1903.
13. Mention may now be made of suit No. 38 of 1915 of the Court of the Assistant Collector First Class, Ranikhet Division. This was a suit by the hissadars of the village and was for the recovery of the lapsed holding of one Pundev, a khaikar. This suit was decreed and it is said that if the village was a pucca khaikari village, the lapsed holding should never have gone to the hissadars, but should have gone to the remaining body of khaikars, for, as we mentioned before in our order dated 24th February 1937, if there was any principle indisputably settled in the case of these khaikari villages, it was that on the death of a khaikar without direct heirs the lapsed holding reverted to the whole community of khaikars and not to the hissadars. We view with some suspicion this litigation of 1915. The judgment of the learned Assistant Commissioner began with the observation that the village was admittedly, what is called popularly, the kaohoha khaikari village. The defendants to the suit were Bhandev, a collateral of Pundev, Ram Kishan, a hissadar of the holding who supported Bhandev, and Jivanand, son of Kishna, who for all we know might be a descendant of Bachi Ram about whom so much has been said before. No khaikar seems to have been impleaded as a defendant in the suit, and the adjudication that the plaintiffs were entitled to the lapsed holding was obtained in the absence of the community of khaikars. Some evidence has been given after remand to show that in spite of this litigation the khaikars are in possession of this holding as well. This holding consists of an area of 53-15/16 nalis, and although the evidence of the plaintiffs' witnesses might not be very reliable, the utmost that can be said is that the khaikars did not assert their right when Pundev died. From this fact alone, however, the status of the village should not be changed nor should the privileges of the other khaikars be prejudiced. Stowell has pointed out at p. 83 that the khaikari villages have always been and still are the object of constant attack by the hissadars anxious to effect an entry and break down their privileged position, and at p. 90 he suggests that the mere fact that a hissadar has effected an entry into the village and got some khudkasht possession should not on principle affect the status of the remaining khaikars so far as the remaining lands are concerned. He says that there is no equity in holding that a whole body of under-proprietary cultivators should be reduced to an inferior position merely by a hissadar getting possession of one holding, and if a zamindar has bought out one of his under-proprietors, there is no justification for the conclusion that all the other under, proprietors should be reduced to the status of occupancy tenants. These observations apply with full force to the circumstances of the present case, and we hold the view that from the result of the litigation of 1915 alone the status of the village should not be reduced to a kachcha khaikari village.
14. Some support was sought by the defendants from the fact that village Khururi is a hamlet of village Chaura and that the latter village is admittedly a kachcha khaikari village, but it is quite clear that the two villages have a different hukumnama (Record of Eights) and were measured with distinct and separate boundaries in the year 1880. They are quite separate entities ever since the time of Beokett's Settlement and, according to the map of the amin, the abadis of the two villages are at a distance of about 1500 yards, They were not assessed separately up to the year 1845 A.D. probably, but since shortly after that they have continued to be assessed separately and the incidents of Chaura should not be made necessarily to apply to Khururi. In pucca khaikari villages there is usually a ghar-padhan, as mentioned by Stowell, but it does not follow therefrom that if there is no ghar-padhan in a village, (and it is conceded that there is no such ghar-padhan in Khururi), the village is necessarily a kachoha khaikari village and we are not prepared to hold against the plaintiffs on this ground.
15. We have discussed above all the findings of the various Subordinate Courts in the present case, and we have also considered the arguments that were advanced before us on those findings, and we can see no justification for arriving at a conclusion contrary to the one arrived by the learned District Judge before remand. We therefore dismiss this appeal with costs.