1. This is an appeal by the plaintiffs against the judgment of the District Judge, reversing the judgment of the Subordinate Judge, Sambalpur. The plaintiffs are the descendants of one Nidhi Gountia, who was admittedly the Gountia of the village of Kermali within the ambit of the defendant's zamindari of Borasambar. The plaintiffs' case is that Nidhi Gountia held the village on a Thikadari tenure and that by way of a family arrangement had allotted the 'sir' and 'bhogra' lands of the village to his sons; that the lands described in Schedule B of the plaint had been allotted to his son, Maheswar; and the lands described in Schedule C had similarly been allotted to his son, Gangadhar. Plaintiffs 1 and 2 and plaintiffs 3-6 are, respectively, the descendants of Maheswar and Gangadhar. The lands described in Sch. D were, according to the plaintiffs, allotted to three other sons of Nidhi, who are not concerned with the present dispute, and those properties are not in suit. The plaintiffs' case is that the grant of the village in Thikadari right was made in perpetuity to an ancestor of the plaintiffs and was the family property of the plaintiffs. On Nidhi's death, his eldest son, Gangadhar, was appointed Gountia and, on his death, his son Ratnakar, succeeded to the office of the Gountia. Iswar, son of Ratnakar, was the Gountia against whom the first defendant, the zamindar, brought a suit in ejectment for non-payment of rent, and obtained a decree. In execution of this decree the zamindar ejected the Thikadar and took possession of the village, including the lands in suit. The plaintiffs, therefore, filed a suit for being restored to possession of the suit lands by ejecting the defendant therefrom. The following genealogical tree explains the relationship of the parties.
| | | | | |
Gangadhar Ramchandra Maheswar Narayan Laikhan Baban
| | _____|________ | | |
Ratnakar Damodar | | Obintamoni Giridhari Daitari
| | Harikrishna Chuda Moni
Iswar | |
| | | | __________|________
Mala Nils Dhira Hara | |
P.3 P.5 P.5 P.6 Tirtha P.1 Nrupa P.2.
2. The defendant-zamindar contested the suit and averred that the village was held by the Thikadars on periodical leases of five years duration, and that the Thikadar was liable to ejectment for non-payment of Thika Jamma, by custom and by the terms of the lease under which he held. He further denied the alleged partition Of the lands between Nidhi and his sons, and it is his case that any such arrangement, even if true, is not binding on the zamindar and would come to an end with the termination of the lease.
3. The learned Subordinate Judge, in a very exhaustive and illuminating judgment, held that the lease in favour of Nidhi was not a terminable lease, as alleged by the defendant, and came to the confusion that it was a grant to the family in perpetuity. He held that Nidhi's sons acquired interest in the leasehold-properties as members of a joint Hindu family and that the grant having been made to the family, the interest of the coparceners is not affected by the aecree against Iswar, the last Thikadar. He further held that the alleged custom that non-payment of rent would result in a forteiture of the tenancy, entitling the landlord to take possession of the leasehold, had not been proved. And relying on a Full Bench decision of the Patna High Court he held that the right of re-entry claimed by the landlord on the termination of the lease had not been made out. He accordingly decreed the plaintiffs' suit for possession of the B and C schedule lands.
4. On appeal to the Court of the District Judge, these findings were reversed on the ground that the incidents of the tenure relied upon by the trial Court were equally consistent with the tenure being a terminable and periodical lease of a limited duration, and the learned District Judge came to the finding that the plaintiffs had failed to show that the village was settled in perpetuity with Nidhi or his ancestors. In arriving at this finding the Court of appeal was largely, if not solely, influenced by the Settlement Report and an order of Mr. Priest, who was the Settlement Officer in charge of the zamindaries at that time, and further held that the plaintiffs had failed to prove that there was any nucleus of joint family property, with which Nidhi had obtained settlement of the village. The findings of the trial Court were therefore, set aside and the plaintiffs' suit was ordered to be dismissed. It is against this judgment that the plaintiffs have now come up in second appeal.
5. The plaintiffs examined one Balmukund Gountia, an old man of about 80 years of age, and filed a copy of an order dated 12-12-1888 of Mr. H. Priest, the Settlement Officer, marked Ex. 1, and a copy of the Khatian of the village, Kermali, prepared at the settlement by Mr. Hamid. On the side of the defendant, an employee of the defendant was examined as his sole witness. In this state of the evidence, it is idle to seek for proof of the origin of the tenancy and the nature of the grant has to be determined by the history of similar tenures in the estate, the surrounding circumstances, and the presumptions of law that arise in such cases. It is common ground that prior to the British annexation of the District of Sambaipur the Gountias claimed the right of hereditary succession, though the zamindars did not recognise any proprietary right of the Gountias in the villages held by them. It was, however, decided soon after the British annexation that the gountias should be given proprietary rights in their villages, but owing to the disturbances which followed in the wake of the Mutiny and the consequent delay in the resettlement of the District, the policy of converting the village headmen into proprietors underwent a change and the position of the village farmers was allowed to continue undefined, though they were granted proprietary rights in their own farms. The right of the zamindar, however, was largely curtailed and legislative action was taken in 1888 to protect the lessees whereby the tenure was to be heritable, though not transferable, and the annual rent payable to the zamindar was left to be determined by a Revenue Officer. This was incorporated in the Central Provinces Land Hevenue Act, as Section 65A, by the Central Provinces Act XVI (16) of 1889, This section was in the following terms;
'The Settlement Officer may enquire into the claim of any person holding from a proprietor a village or a part of a village, as Thikadar, Gountia or farmer and may, with the previous sanction of the Chief Commissioner, provide in the terms of settlement, for the protection of such Thikadar, Gountia, or farmer against arbitrary enhancement or ejectment.
Provided that the protection of a Thikadar, Gountia or farmer shall not be provided for under this section unless he or those from whom he has inherited was or were in possession of the village at the last settlement of the local area, in which the village is situate, or unless it is proved to the satisfaction of the Settlement Officer that he or those from whom he has inherited has or have established the village, or substantially proved at his or their own costs.'
It will be observed that the enquiry conducted by Mr. Priest was shortly before this provision was placed, on the Statute book. The rights of the Gountia, whatever they were, had not crystallised into legal existence and, for the first time, an attempt was made to recognise their rights by way of protecting them against arbitrary enhancement or ejectment by the landlord.
6. It should not, however, be understood that the claim of the gountias to proprietary rights in their villages was ever negatived. In fact, in a proclamation issued on 13-10-1862, soon after the Sambaipur District was transferred to the Central Provinces, it was notified that 'proprietary rights would be conferred on all Gountias who might be found, on enquiry, to be entitled thereto'. Further,
'all gountias on whom such proprietary rights might be conferred would be proprietors (Maliks) of the villages and would have a heritable and transferable right thereto.'
The terms of the proclamation were confirmed by the Chief Commissioner, Sir Richard Temple, at a Durbar held by him at Sambalpur on 9-3-1863. It will be seen, therefore, that the Government Of the day impressed on the gountias that they were to obtain a right of proprietorship, with all its incidents and privileges, in contradistinction to a mere right of farm or management. Later, the policy of Government underwent a change, in that it conferred a heritable and transferable right to hold in perpetuity, free of assessment, the 'bhogra' land only. To give effect to this policy enquiries into the claims of the gountias were commenced in July, 1863. The procedure adopted at the enquiry was this. The gountia was sent for and his statement taken down as to how the village came into his possession; in corroboration of which statement he called two or three witnesses. And after that it was declared that the proprietary rights of the village were conferred upon him. Hardly any of the gountia's relatives, co-sharers, under-holders, etc., knew that proprietary right enquiries were made; but a short while afterwards the co-sharers came to know what had been done and representations were then made to the Commissioner, which were followed by references to the Chief Commissioner who eventually ruled that:
'when a single gountia has hitherto managed the village without accounting to his relativesfor profits or losses, the proprietary tenure nowconferred will rest on him only; but where other members of the family have hitherto shared the profits and losses of the Gountia they will now share the proprietary tenure........'
But it appears from Russell's report on the settlement conducted by him between 1872 and 1876 that there were several instances in which the co-sharers had omitted to put forth their claims in the first instance from various causes, such as ignorance, apathy, deceived by the gountias with false assurances that their names had been recorded in the proprietary right misl and so forth. There can be no doubt, however, that among the gountias of the 'Kulta' caste the younger sons had received equal shares with the eldest, according to private distribution, and the rule of primogeniture which was later introduced into the Central provinces Land Revenue Act, was then unknown among the 'Kulta' families. The claims of the co-sharers in the Gountia's 'bhogra' were, therefore, definitely recognised as early as 1864 and were left untouched by the enactment of Section 65A in 1889. In the case of zamindaries it was ruled by the Chief Commissioner that it was undesirable to make detailed enquiries into subordinate rights in these estates and in the absence of such enquiries it was impossible to define the relations of the zamindars with their gountias and raiyats.
7. When the settlement of Sambalpur District was undertaken by Mr. Nethersole, between the years 18'85 and 1889, Mr. Priest was put on special duty as the Zamindari Settlement Officer and was commissioned to hold enquiries regarding the revision of 'Takoli' and the rights of the Thikadar and other subordinate holders in the Borasajmbar and Fuljhar zamindaries of Sambalpur District. In his letter, dated 6-6-1883, to the Commissioner, Chhattisgarh Division, he describes the procedure followed by him at these enquiries. To quote his own words:
'In each case the Gountia was examined in detail, the state records were referred to, and in all cases of doubt two or more witnesses were examined. In preparing my records, however, I have only included in them such facts as told directly on the point which I had to decide. In judging of this enquiry and of my work in these zamindaries generally it should be borne in mind that I had no skilled assistance of any kind. The manager was engaged on other and important duties, and my one clerk had enough to do in copying and, completing the necessary statements.'
The Officiating Commissioner, Chhattisgarh Division, in his letter to the Commissioner of Settlements commenting upon Mr. Priest's report, says:
'I regret it is impossible to enter into detailed criticism of the cases in which Mr. Priest proposes to give protected status to these founders of villages; because, having adopted the general principle that they should all receive it, he has not given detailed information about them.'
In the memorandum that Mr. Priest prepared on the Borasambar zamindari, there are certain introductory remarks of that officer, which have been relied on, and in fact have been used, by the lower appellate Court, as the only basis for arriving at the conclusion that Nidhi's tenure was only a periodical lease of five years duration. The passage in question is as follows:
'This zamindari has been under Government management since November 1885. It consists of 383 villages, of which 4 are managed direct, 86 are held rent-free while the remaining 293are held by Thikadars' on leases of five years duration. None of the villages were sub-settled in 1875.'
The value to be attached to this introductory remark is, however, considerably whittled down by what follows in para. 2 of the Memorandum under the heading: 'Grant of Protected Status'. To quote:
'For facility of reference I have, however, abstracted in the annexed statement C all those cases where I have recommended the grant of this status, and a brief record of the reasons for my recommendations has been added for each village.'
8. It cannot therefore be claimed, as has been done by Mr. Purohit, learned counsel for Respondent, that the all-too-brief note of Mr. Priest contains a detailed or full account of the history of the tenure, or that it is conclusive of the rights of the parties. Mr. Priest himself observes:
'The right to continue to hold a village so long as a fair rent is paid is, after all, scarcely a privilege, but rather a well-founded equitable claim.'
Whether the right of the gountias was only an equitable claim, or had matured into a legal right will be discussed later, in the list of gountias recommended for the grant of protected status, village Kermali is mentioned as one belonging to the Thikadar Nidhi and the reasons for recommending the grant of protected status are embodied in a single sentence which reads as follows : 'The state records show that this gountia has held for at least 33 years and has made improvements'. It will be observed that Mr. Priest has based his recommendation only on the evidence afforded by the State records and did not investigate into the claim put forward by the then Thikadar. To argue from this laconic statement that the tenure was only a periodical lease would be inconsistent with the remarks made against other tenures in the same list. For instance, in item 25, against the village of Bandhu Bahal, the remark is that:
'the village has been held by the present Gountia, and his family for several generations, while the evidence shows that he has improved it.'
Against item 3, Batlerma, the remark is that 'the records show that this village has been held by the present gountia and his ancestors for three generations'. Against item 4, Jampalli, the reason given for recommending the grant of protected status is that 'the village was founded by the ancestors of the present-holder whose family has held and improved the village during many generations'. The list prepared by Mr. Priest was, however, regarded as inadequate by the Chief Commissioner, who added to the list 23 gountias who had uninterruptedly been in possession for 20 years or longer, and conferred the protected status on them. And this list is given at p. 630 of the Settlement Report. The final order of the Chief Commissioner does not contain any remark that the gountias on whom protected status was conferred held on periodical leases or otherwise. While, therefore, the note of Mr. Priest might be generally true, i.e. that the Thikadars held on leases of five years duration, it can by no means be conclusive of the rights in any particular instance.
9. After all, it should be remembered that Settlement Reports, however valuable they may be in giving a history of the areas coming within the operation of the Settlement, are by no means conclusive of matters requiring judicial determination and they cannot, therefore, be taken as proofof title or division of shares. It has been repeatedly laid down by the Judicial Committee that it is an error to suppose that the proceedings for the mutation of names are judicial proceedings, in which the title to and the proprietary right in immovable properties are determined. They are nothing of the kind, they are much more in the nature of fiscal enquiries instituted in the interest of the state and for the purpose of ascertaining which of the several claimants for the occupation of certain denominations of immoveable property may be put in occupation of it, with greater confidence that the revenue for it will be paid. Orders in mutation proceedings are not evidence that the successful applicant was in possession as sole legal owner in a proprietary sense, to the exclusion, for example, of all claims of other members of the family, as co-owners, or for maintenance or otherwise, as revenue authorities have no jurisdiction to pronounce upon the validity of such a claim, See 'Nirman Singh v. Rudra Pratap Narain Singh', 53 Ind App 220. That was a case under the Oudh Land Revenue Act and the person recorded in thecolumn of Lambardar claimed the property to be exclusively his as against his coparceners who claimed a partition. The judicial Committee observed:
'It is a little less than a travesty of judicial proceedings to regard the two orders (of the Extra Commissioner of Bahraich and Mr. M. L. Ferrar, Deputy Commissioner) as judicial determination, expelling 'proprio vigore' any individual from any proprietary right or interest he claims in immoveable property.'
Further down in the same report, the Board observed :
'If, however, the Court of appeal meant by the language they have used that these orders were evidence that Lall Bahadur Singh was in possession, as the sole legal owner in a proprietary sense, to the exclusion of the claims of other members of the family as co-owners, or for maintenance or otherwise, they, in their Lordships' view, were entirely mistaken'.
10. In a later case reported in 'Martand Row v. Malhar Bow', 55 Ind App 45 the Board observed that the official reports regarding the nature of any estate are valuable and in many cases the best evidence of facts stated therein, but opinions therein expressed should not be treated as conclusive in respect of matters requiring judicialdetermination, however eminent the authors of such reports may be. This was a case from the Central Provinces and the report on the zamindaris in the Central Provinces submitted to the Government of India in 1883 by Sir Richard Temple, came under review. Referring to the classifications of zamindaries, made by the Special Officer, the Board observed that it would be strange if they were all found to be of the same kind with a difference only in degree. In the latest case of 'Durga Prasad v. Ghanashyam Das', (1940) 2 Mad L J 228, the Judicial Committee reiterated their former pronouncement in 'Nageshwar Baksh Singh v. Ganesha', 47 Ind App 57, that a definition of shares in Khewat and other revenue papers can be regarded only as a very slight indication of title. It is not the function of the officer who complies such papers to decide questions of title. We are, therefore, unable to deduce from an isolated statement of Mr. Priest that Nidhi held, the village on a precarious tenure terminable at the end of five years, to the exclusion of the other members of his family.
11. The final report prepared by Mr. Fuller, Settlement Commissioner of the Central Provinces, in 1891 on the settlement operations conductedunder Mr. Nethersole's supervision, makes the point even clearer. In paragraph 104 of the report the following passage regarding the position of the village Thikadars is to be found:
'In other districts where zamindari estates had, at the previous settlements been settled in detail, a considerable proportion of the men, found in possession of the villages, were protected by the grant of inferior proprietary rights. Owing probably to the absence of detailed investigation in Sambalpur, no such rights were conferred and the relations of the zamindars to the village gountias were left to be determined by the Courts of law........On the other hand, theThekadars could urge that the grant of periodic leases was, according to the custom of the country, little more than a mere form; that such leases had been held by the Khalsa gountias who had been admitted not only to the right of uninterrupted possession, but also to the right of proprietorship in their 'bhogra' lands; that their villages in many cases had been established by their ancestors and had been in their families for generations, or had been practically created by the outlay of large sums on their part.'
12. At this Settlement under the orders of Government,
'enquiries were made into the circumstances of every Thikadari Gountia in zamindaries and 'protected status' had been awarded in deserving cases where the Thikadar had either held from a date previous to the former settlement, or had himself settled the village, or spent money in making substantial improvements. The recent amendment of the Land Revenue Act gives, in Section 65-A, a legal basis to these proceedings. The incidents of protected status are given in Clause (xi) of the wazib-ul-arz'.
13. The zamindari wazib-ul-arz for the district of Sambalpur was published in January 1893 and the relationship between the gountias and co-sharers is defined as follows:
'1. No co-sharer in a Gountia or Muafi village can claim to have his share partitioned and separated. The raiyat of a village, in which the sharers have made private partition among themselves, can always claim to pay his revenue direct to the Lambardar Gountia instead of to the co-sharer.'
14. In paragraph 15 of the wazib-ul-arz, under the heading 'XV-Protection of Thikadar' -- the incidents of a protected status granted under Section 65A of the Central Provinces Land Revenue Act, are laid down as follows:
'(a) The tenure shall be heritable, but not transferable by sale, gift, mortgage or dowry. It cannot be partitioned and (saving any arrangement to the contrary now actually in force) it devolves on one member only of the Gountia's family.'
(b) A protected Thikadar-Gountia, whether holding under a written lease, or by parole agreement, shall be entitled to a renewal of his lease on its expiry, on his agreeing to farm his village at a fair and equitable rent.
(e) An annual payment on the 'bhogra' land of the Thikadar-Gountia will be leviable instead of Nazarana.'
15. It is therefore clear that any partition amongst the co-sharers of a Thikadar, which had already taken place is expressly saved by Cl. (a) of paragraph 15 of the wazib-ul-arz. The restriction on transfers applies to tenures only and the rule regarding devolution of tenures on one member of the Gountia's family applies to the tenureas such. So far as the 'bhogra' lands of the Thikadar are concerned, the zamindar is entitled only to an 'annual payment' instead of hazarana. These provisions were later placed on the Statute book by an amendment of Section 60A, by Section 3 of the Central Provinces Land Revenue Act of 1898 (Act XII of 1898). The question, therefore, is, having regard to these provisions, whether the conferment Of protected status effected any change in the tenure of the Thikadar or in his relationship with the zammdar, on the one hand, and his co-sharers on the other, and whether the loss of the tenure to the Thikadar would necessarily involve the ejectment of the cosharers from the 'bhogra' land, Which had been allotted to them prior to the grant of the protected status.
16. Mr. Purohit, in an able address from the Bar, contended that the conferment of the protection certificate converted, or had the effect of converting, the tenure into an impartible estate and the law of primogeniture would regulate the succession. The property consequently belonged to Nidhi alone howsoever it was acquired by him or by his ancestors; & the interests of his coparceners, whatever they might have been, came to an end When Nidhi accepted the protected status. This view point has been the subject of discussion in several cases before and I need only refer to a few reported decisions of the Nagpur Judicial Commissioner's Court and of the Patna High Court.
17. In 'Pagwa v. Budhram', 10 Nag L R 64 the effect of the grant of a certificate of protected status under Section 65A of the Central Provinces Land Revenue Act was considered. In this case, the plaintiff's father, Fathari, was granted a protection certificate in 1891 when Pathari was joint with his brother Sakhru, the father of the defendant Fugwa. The dispute arose with regard to the purchase of village Chipridih from the savings of income derived from the Thikadari village of Parsathi. It was held that the mere fact of the certificate being issued in the name of Pathari is not conclusive of the question as to whether it enures to the benefit of the family, which he then represented before the Settlement Officer, or for his own personal benefit. Where a lease is given to and accepted by a person in a representative character, it is not open to the lessor to deny title to the other members of a joint Hindu family. The true test, as was laid down in 'Subbiah v. Chellamma', 9 Mad 477, is whether it was brought under cultivation by family or self-acquired funds, and the 'onus probandi' lies upon those who allege the latter. If family funds were utilised for the improvement of the village, then as between the members of the family of the lessees, it was joint property. It was pointed out in the Nagpur case that there was nothing in the law to prevent partition upto 1898, and if there had been a partition before 1898 it would have been valid. The amended Section 65A clearly recognised the possibility of a Thikadari village being held under an arrangement in the nature of a partition at the time of declaration and also the possibility of there being more than one person whose claim has to be enquired into and recognised if the statutory conditions are fulfilled. Property which is joint property and enjoyed as such does not cease to be joint property merely because a subsequent statute does not recognise the partition. Referring to the wazib-ul-arz of Mr. Nethersole's Settlement in Sambalpur district, the Court held that
'it cannot be seriously argued that these restrictions on the right to partition have taken away from the co-sharers in the Sambalpur Khalsa villages all rights of property and conferred them on the Lambordar Gountia.'
18. In 'Khedu Singh v. Bhagwan Singh', AIR(11) 1924 Nag 163, a protected Thikadar sued forexclusive possession of a village recorded in hisname against the other memoers of his family,who were co-sharers in the Thekka. It was heldthat the grant of protected status did not makeany change in the rights of the joint-holders of alease 'inter se', except to make the tenure impartible where the lease might have been partible before. If the manager of a joint Hindu familysecures a lease out of family funds but takes itin his own name, he is the sole lessee and the solerecorded lessee, as far as the proprietary right isconcerned, and also the tenure is impartible, butthe other members of the family are the jointowners of the lease with him and entitled to jointpossession of the village. In this case, the defendants had forcibly taken exclusive possession ofone of the leasehold villages and the plaintiffssued to eject them, it was held that the Thikadarcould be restored to joint possession and that hewas not entitled to exclusive possession. In 'Jaswant Singh v. Mt. Jasoda', 13 Nag L R 1, thequestion was whether the Thikadar who was granted protected status had acquired the rightto cut trees and appropriate them to his own usewhen he had no such right before the grant ofthe protection certificate. It was held that themere grant of protected status did not confer onthe Thikadar any such right. Reliance was alsoplaced on the case reported in 'Rajendra Singh v.Madan Singh', 10 Cut L T 62, where the statusof the gountia of village Bariha Pukka Pani inBorasambar Zamindari fell to be considered. Itwas observed that the order made in the enquiry byMr. Priest did not form the root of title of thegountia, but that it was an item in the chain ofevidence upon which the defendants could rely.It was also held that the only result of Section 65A ofthe Central Provinces Land Revenue Act was thatthe rights of the members of the gountia's familywere dormant, but ready to spring into existenceas soon as the protection was removed. So long asthe protection was there, the other members ofthe family could not assert their title to the estate.When that protection was removed, the propertybecame ordinary coparcenary property.
19. Strong reliance was, however, placed by the respondent on 'Bhagwan Singh v. Darbar Singh', 55 Ind App 150, 'Narup Raja Singh v. Bhabani', 37 Ind Cas 107 and on an unreported case 'Sadananda Singh v. Chintamoni Nayak', in First Appeal No. 19 of 1939. In the first of these cases which arose under Section 109 of the Central Provinces Land Revenue Act of 1917, it was held that the Act recognises that the leasehold interest of a protected Thikadar though impartible, may nevertheless be the joint property of the Thikadar and his family. Section 109 of the Central Provinces Land Revenue Act of 1917 expressly saves the right of the members of the Thikadar's family who are entitled to be maintained out of the income of the village, to make any arrangement for the joint or divided management and enjoyment of the village or part thereof. This remedy is no doubt given to the members of the family in lieu of the right to sue for partition, of which they have been deprived in consequence of the Thekka being made impartible by statute. This case, far from supporting the contention of the respondent, really favours the appellant inasmuch as Sub-section (4) of Section 65 of the old Act which governs this case, also leaves unaffected any arrangement made prior to the passing of the Act of 1898. In the second case reported in 37 Indian Cases 107 the only point decided was that the grant of a protected status did not prevent the gountia from relinquishing his rights. In that case it was conceded that a gountia could not sub-let his rights and it was accordingly assumed that he could not create in the village in dispute any tenure of a permanent character which will hold good after his lease came to an end. The question as to whether an arrangement was made before the introduction of the amended Section 65A did not arise. The third case relied upon by Mr. Purohit is the unreported decision, in 'First Appeal 19 of 1939 (Pat) relating to this very village where the rights of the three sons, by his second wife, of Nidhi, viz; Chintamoni, Giridhari, and Daitari, who divided from Nidhi, were considered. The division among these sons of Nidhi was admitted by the zamindar who is the respondent in this case. Manohar Lall, J., came to the conclusion, on the evidence adduced in that case, that Mr. Priest's report a copy of which was exhibited in the case, and the Settlement Khatian prepared by Mr. Dewar, were 'no evidence that the original settlement was a permanent settlement with this family.' His Lordship was also not satisfied with the evidence that Nidhi partitioned the 'sir' lands among his sons, and accordingly upheld the contention of the Zamindar that he was entitled to the 'sir' lands. This case, if I may say so with respect, does not decide any principle and cannot be relied on as a precedent. A decision is useless as a precedent unless it involves the determination of a principle. The foundation of a precedent is that the legal rule applicable to any particular case is fixed and settled from the beginning and the decision of a case is only a deduction from the general legal rule to the particular circumstances before the Court. A Judge is not necessarily influenced by the deductions of other tribunals. It is to the stable general principle that he owes his allegiance in all circumstances. It follows that no individual suggestion contains any further authority in itself. I cannot, therefore, see my way to accepting the authority claimed for this decision as binding upon us in this Court as the decision confines itself to the evidence recorded in that case and is otherwise not-binding as not being inter partes.
20. I, therefore, propose to examine the evidence adduced by the parties before us and come to my own finding as to the nature of the tenancy that was created over a century ago. Ext. 1 is an extract from the report of the Settlement Officer, Mr. Priest. It contains a statement of Nidhi, who was then 60 years old. His statement reads:
'I have been gountia of this village for 40 years or perhaps 50. I have dug 4 tanks; in two of them water remains all the year round. I have planted 20 small mango trees. There are three Kuts of 'bhogra and 12 of raiyati in my village.'
This statement was made on 12-12-1888 and Nidhi claimed to have been in possession of this village as gountia since 1838. The gountia of Malmunda who was examined said that Nidhi was a gountia of many years standing and that there were Khutas in the village which, he believed, were dug by the 'present' holder. The statements of these two witnesses, read together, lead us to hold that the grant was made to an ancestor of Nidhi and that Nidhi was in enjoyment of the village ever since he was a boy of 10 years of age. It should not be imagined that Nidhi could have entered into a contract by way of a Thekka of this village, when he was 10 years of age. His witness makes the point clear by referring to the 'present holder', clearly implying that the grant was made to an ancestor of Nidhi. The order of Mr. Priest does not refer to this evidence and is based entirely upon the State records which show that ' 'this gountia' has held at- least for 33 years and has made Improvements'. Mr. Priest's reference to 'thisgountia' also points to there having been a gountia, previously. The plffs. also examined, as has already been mentioned, one Balmukund Gountia as P. W. 1, a man wno was nearly 80 years old, and who knew the family intimately. His evidence is that Nidhi got the village in perpetuity and it has been, acquired by his ancestors, that Nidhi made considerable improvements and excavated about six. Khutas at a cost of Rs. 15,000/- to Rs. 16,000/-. This evidence is consistent with Nidhi's statement, made in 1888 referred to above. The witness further deposes that the division between Nidhi and, his sons took place 50 or 04 years ago, i.e. about the year 1887. This witness was present when. Nidhi divided the 'sir' lands amongst his sons, and says that the division was of the lands only and not by fractional share of the Thikadari right. He goes on to say:
'Nidhi remained the Thikadar. He did not retain, any share in the 'bhogra' lands, but kept the thikadari right, He had other considerable properties.'
The lands which Gangadhar had obtained at this partition were subsequently allotted to his son Damodar, through whom plaintiffs 3-6 now claim the right, though Gangadhar retained the thikadari right to himself. Lastly he adds that the members who got the lands by partition were to pay their dues to the Thikadar and not to the Zamindar. It was settled at the partition that, the Thikadar would arrange all affairs in the village.
21. The facts established are: (1) that the grant of this village was made about a century age to an ancestor of the plaintiffs; (2) that considerable improvements had been effected by successive holders of the village; (3) that the descent has been from father to son for at least four generations: (4) that the village was formerly a 'muafi' village belonging to a deity and was subsequently, resumed; (5) that the history of similar tenures in and around the locality shows that these grante were made for clearance of jungle and settlement of village; (6) that the holder has, by custom, and later by statute, been protected in his possession; (7) that the descendants of the grantor have never exercised the right to eject or to enhance the rent;(8) that the claim of the gountias in the district that the gountiyayi tenure is in the nature of a grant in perpetuity was being put forward for over a century, but that no decision could be taken by Government owing to the disturbed conditions in the district, as a result of the rebellion organised by Surendra Sal.
22. In view of these considerations, particularly where the origin of the tenancy is unknown, the history and mode of enjoyment of the tenure will determine its character and it is fatuous to look for proof of title. When each one of the partis to the original transaction has passed away, and it becomes impossible to ascertain what were the circumstances which caused the original grant to be made, the policy of the law is to secure, as far as possible, quiet possession to people who are in apparent lawful holding of an estate and to assume that the grant was lawfully made. As was observed by Viscount Sumner, in 'Mohd. Muzaffar-al-Musavi v. Jabbeda Khatun', 57 Ind App 125:
'The presumption of an original in some lawful title which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence..... The matter is one of a presumption, based on the policy of the law, but even considered as an inference from proved facts, the lease presumed is a thing which may well be regarded as likely to have happened. At the same time, it is not a presumption to be capriciously made, nor is it one which a certain class of possessor is entitled to 'de jure.''
The Court must be satisfied that a title such as is presumed, was in its nature practicable and reasonable and capable of being presumed without doing violence to the probabilities of the case. It is the completion of a right, to which circumstances clearly point, where time has obliterated any record of the original commencement, in a similar case before the Judicial Committee, reported in 'Ramranjan v. Ram Narain', 22 Ind App 60 the facts found were that the lands were originally dense jungle, infested with tigers, and that tanks and other improvements had been executed by the efforts, and at the expense and with the labour of the defendants and their ancestors. Their Lordships of the Judicial Committee were satisfied that the presumptions in favour of a fixed and permanent Ghatwali tenure arising from long-continued possession of the respondents and their predecessors, at a uniform rent, were sufficient to overcome the mere title of the appellant as zamindar. Their Lordships observed that the appellant had really proved nothing beyond his title, as zamindar of the taluq within which the villages were situated, and held that there was no reason to presume that by the purchase of the zamindari the appellant's ancestors acquired any rights to set aside the rights then existing and exercised by the respondents' predecessors. On the contrary, the presumptions arising from possession are to the contrary effect. These being the principles of law applicable to cases where the origin of a tenancy is lost in the mist of antiquity, it is legitimate to infer a permanent tenancy from long-continued possession as it is the policy of the law to uphold long uninterrupted possession.
23. There is a fasciculus of cases of several High Courts in India as well as of the Judicial committee laying down the principles which would justify the inference of a cermanent grant. The principle involved in these cases may broadly be stated to be that where the origin of the tenancy is unknown and its inception is lost in antiquity, the principle of lost grant has been invoked by the tenant and from the conduct of the parties and the surrounding circumstances the Court has been asked to presume that the tenancy was a permanent one. The second principle is that of equitable estoppel against the landlord showing that the lease was a terminable one. It is not necessary for me to refer to these cases as I am supported in my view, by the observations of Harries, C. J., in a case between the present respondent and the Thikadar of another village in his zamindari, in the case reported in 'Sadananda Singh v. Madan Mohan', 18 Pat 509. Referring to the position of the Thikadars in Sambalpur District his Lordship observed:
'The Thikadars, Gountias, or farmers in Sambalpur district hold an interest very similar to that of a permanent tenure.'
I have therefore no hesitation in arriving at the conclusion that the tenure at its inception was of a permanent character, and unless the landlord could show that one of the incidents of the tenurewas the right to eject the Thikadar for non-payment of rent, not only from his Thika tenure but also from his 'sir' lands, he cannot resist the plaintiffs' claims.
24. The respondent relied upon custom and the 'terms of the lease' for the right which he seeks to assert and failed to prove either of the grounds urged. Undue stress ought not to be laid on thedescription of the tenure as a perpetual lease, in the pleadings and in some of the judgments quoted in the Courts below. The suit transaction was admittedly oral and could, at the inception, have borne no particular description. The contractual relation created was in the nature of a perpetual tenure rather than the creation of relationship of 'landlord' and 'tenant' as we understand these expressions. The position was rather really that of a 'grantor' and 'grantee' and not of a landlord and tenant; and the law of forfeiture on non-payment of rent is not applicable in the absence of proof of a definite contract to that effect. There is no proof in this case that the appellants were ever let into possession of the 'sir' lands by the respondent, or that his ancestors were ever in possession of any of these lands. The learned appellate Court however fell into an error in holding that all the rights that Nidhi had were those mentioned in Section 65A of the Central Provinces Land Revenue Act and that the plaintiffs could not claim any right other than those mentioned in that Section. The learned District Judge also held that the arrangement, if any, between Nidhi and his coparceners was not recognised by the zamindar, and therefore the right of the younger branch of Nidhi would be extinguished with the ejectment of the Thikadar. This interpretation of Section 65A ignores from the Act 'any arrangement to the contrary in force at the time of the declaration'. Even in the cases of default in payment of Government revenue, Section 107 of the Act provides that every such defaulter shall be entitled to retain possession and shall be liable to pay rent for such land, as if he were an absolute occupancy tenant, at such rent as may be fixed by the Deputy Commissioner. The policy of the Act in respect of 'Sir' lands is clearly against the finding of the learned District Judge. The right to eject a Thikadar for default in payment of Thika Jamma has been the subject of decision in the Full Bench case reported in '18 Pat 509', referred to above, and it has been held that the landlord has no such right against a protected Thikadar under Section 65A (Sub-section 7). The decree obtained by the respondent against Iswar is consequently not consistent with the Act. The decree has not been filed in the case, and it is impossible to hold that Iswar was sued in a representative capacity as the manager of a coparcenary so as to bind the co-sharers -- the plaintiffs in this case. My finding, therefore, is that the plaintiffs are not bound by the decree obtained by the respondent against Iswar and that their dispossession is illegal.
25. The Court of first instance accepted the case of partition set up by the plaintiffs and held that their right to hold had been left untouched by the grant of a protection certificate to Iswar and that Iswar was not sued by the zamindar in a representative capacity. The appellate Court has, unfortunately, recorded no finding on this question of fact beyond observing that 'it may be that Nidhi by way of maintenance gave away some of the 'sir' lands of the village to his younger sons.' We are not satisfied that there has been a proper discussion of the evidence relating to this aspect of the plaintiffs' case. In the Settlement record prepared by Mr. Dewar in 1906, as well as in the later Settlement records, the plaintiffs and their co-sharers have been recorded as possessing definite plots of land in their own right. These entries amply bear out the case of the plaintiffs. D.W. 1 has not been able to give any evidence bearing on the point as he frankly admits that he knew Iswar only and did not know any of the other members of the family, but he refers to Iswar as the 'lambordar gountia' thus bearing out the statement of P. W. 1 that the members of Nidhi's family whogot lands by partition were to pay their dues to the Thikadar. It is, however, not for this Court to canvass the evidence as it is essentially a question of fact, and as this is the crucial point in the case we have arrived at the conclusion that this ease must go back to the lower appellate Court for recording a finding on the point. If the alleged partition preceded the grant of protected status to Nidhi, the right of the plaintiffs to hold the suit lands in their own right would be left unaffected by Section 65A. If, on the other hand, the partition was subsequent to the Act (XII) of 1898, the partition would be contrary to the provisions of Section 65A. The lower appellate Court should now discuss the evidence and come to its own finding in the light of these remarks.
26. This appeal is accordingly allowed and thecase remitted to the Court of the learned District Judge, for a fresh disposal in the light of the observations made above. The costs of this appeal will abide the result.
27. I entirely agree. I am very pleased with the able and exhaustive manner in which my learned brother has dealt with this case. It we reserved judgment, it was not because we had any difficulty in arriving at this conclusion, after hearing the learned counsel for both parties at length, but because hi view of the conflicting orseemingly conflicting decisions which had been the fruitful source of litigation in Sambalpur, we though it proper that we should settle the principle invoked in such disputes, once and for all. In entire agreement with the reasonings of the judgment that take their complexion from historical retrospect, so nicely summarised by my learned brother, I should lay down the following principles, always to be kept in view, in dealing with the disputes arising out of Thikadari leases, any decision to the contrary notwithstanding. The principles are: (i) That the Thikadari leases, either permanent or temporary, but renewed or renewable from time to time, are, like any other property, capable of being possessed by a coparcenary; (ii) That the joint family estate in such leases can row, either if they are acquired with the joint family funds, or with joint family labour, or is allowed to be treated as joint family property by the acquirer; (iii) The declaration of protected status does not effect any change in its character so as to debar acquisition of joint family right in it or to divest any pre-existing or subsisting right in them enuring to the benefit of the members of the joint family; (iv) Section 65A, in saving the pre-existing arrangements with regard to the Thikadari tenures, saves not only partition of the tenure, if any, but also joint or separate enjoyment of the 'Sir' and 'Bhogra' lands appertaining to the tenure, or any other emoluments arising therefrom; (v) The prohibition against partition only attaches to the tenure, as such, namely, the right to collect rents and the privilege of representing the tenure before the landlord and the liability to pay the Thikadari rent to him; (vi) As a result of this prohibition, in case the Thikadari tenure, as such, is forfeited on account of nonpayment of the rent, the tenure as such lapses, but not to the detriment of the rights that had already been acquired prior to the enactment of Section 65A of the Central provinces Land Revenue Act, 1898, as applied to Sambalpur; (vii) It is a mistaken notion that the arrangement, referred to in the Section, must have been arrived at before declaration of protected status, the relevant time being before the enactment of Section 65A, as it now stands; and lastly (viii) It is a mistaken notion as well that the 'sir' and 'bhogra' lands also revert to 'he zamindar, or in other words, to the lessor, on forfeiture of Thikadari tenure, as, according to the Sambalpur Tenancy Law, simultaneously with the forfeiture of the tenure, the right of occupancy grows in such lands in favour of the tenure-holder.
28. In such circumstances, the latter is bound by any arrangement as to right to or possession of the 'sir' lands of the joint family members and the Thikadar, 'inter se', even though all the time that the arrangement was in force the landlord stood completely out of it.
29. With these observations, I agree that theappeal shall be allowed and the case should beremitted back to the first appellate Court for disposal in accordance with law.