Charles A. Turner, Kt., C.J.
1. In 1796, the Board of Revenue reported to the Government that, while the mirasi right was not lost by a failure to cultivate, unless it arose from obstinacy or intrigue, the Government had a right (as had also the mirasidars), when the mirasidar failed to cultivate, to call in strangers to cultivate.
2. In December 1796, Mr. Place was directed to require each mirasidar to declare, in writing, the extent of ground he was willing to enter into engagement with the Government to cultivate, previously informing the mirasidars that it was the intention of Government to bestow the surplus or spare land they could not cultivate on new mirasidars.
3. In a lengthy minute on mirasi right, submitted by Mr. Place in 1799, he expressed his concluson that a property in the mirasi land vested in the mirasidar so long as he did or could cultivate it and paid the dues to Government, and that, when he did not or could not cultivate his lands, when he withheld the dues of Government, or was disobedient to its authority, such part as he neglected, or in the latter case the whole, escheated to Government, who might confer it on whom it pleased.
4. In their Fifth Report to Parliament in 1812, the Select Committee, while recognizing the heritable and transferable property enjoyed by a mirasidar in mirasi lands, reported that ' it had been the practice of the Governments to allot also to the payakari certain portions of the lands of the mirasidars, when, either from inability, from- want of hands or from any other cause, this was necessary. '
5. In the inquiry made by the Government into mirasi right, before the introduction of the raiyatwari settlement, Mr. Ellis stated it was the duty of the mirasidar to cultivate his full proportion of the varaput lands* according to the share he held in the village, that the wilful neglect or refusal to do so is a breach of his contract, necessarily entitling the State to provide for the maintenance of its revenues by other means, and that the mirasidar did not forfeit his mirasi right by discontinuance of cultivation, but that, if he did not cultivate the land himself, he must provide for its cultivation by granting it to payakaris, and that, if he did not do so, the State had the right to employ payakaris either for the current year or for a fixed, though not indefinite number of years, and perhaps to resume his mirasi swatantrams (fees) in proportion to the extent of land he had neglected to cultivate, though this, he admitted, would be considered a harsh measure, and would not be resorted to except in cases of extreme contumacy.
6. Mr. Sankarayya was of opinion that, while the mirasidar enjoyed a right of property in his mirasi lands, yet that, a paramount right to the territory over which his dominion extended vested in the Sovereign, and therefore, if the mirasidar failed to cultivate, and loss thereon accrued to the State, the Sovereign enjoyed and exercised the right to cause the lands to be cultivated, and issued cowles for that purpose.
7. From a consideration of these and other authorities, the opinion I have formed, and, I believe, expressed in previous decisions in this Court, is that, where a mirasidar ceases to cultivate assessed lands within his mirasi estate, or neglects to cultivate culturable waste, the Government is at liberty to issue pattas to those lands to any stranger who will undertake to pay the assessment. Where there has been a mere relinquishment of the revenue engagement by the mirasidar, he does not, as the Judge supposes, lose his mirasi right. He retains that right, and, in virtue of it, in some villages, is, by custom, authorized to collect, even from the raiyats under engagement to the Government, certain mirasi dues.
8. Of course, the mirasidar may so relinquish land held by him as to warrant, the inference that he has abandoned any mirasi right he possesses in it, but this, inference is not to be drawn from a mere relinquishment of the revenue engagement. Nor is it to be inferred, from the issue of pattas to strangers by the State, that the Government has claimed a forfeiture of the mirasi right.. Since the introduction of the raiyatwari settlement, these pattas will, unless, reservation is made to the contrary, be construed to enure so long as the-raiyat pays to the State the revenue he has engaged to pay.
9. With regard to the case now before the Court, it is shown that the maniyakars (headmen), who, the Judge finds, represented the mirasidars, resigned some of the lands in 1865, some in 1866 and some in 1871.
10. In their application of 1865, the maniyakars prayed that the lands then resigned might be excluded for the current Fasli 1275 from the patta, on the ground that they were unable to cultivate them in that Fasli.
11. In their application of 1866, the maniyakars, expressing their inability to cultivate that year the lands mentioned in the application, prayed simply that those lands might be excluded from the patta.
12. It is not shown in what terms they relinquished a revenue engagement for the lands they ceased to cultivate in 1871.
13. In the Court below, it was not pleaded that the relinquishment was intended to have effect only for a year. That plea is urged in this Court, and,, as to the lands excluded from the patta in 1865, derives colour from the terms of the application.
14. It is not denied that, in pursuance of the applications of the patta-holders, the lands to which those applications referred were excluded from the pattas issued in 1865, 1866 and 1871, respectively.
15. It is not asserted that, in any subsequent year, the mirasidars applied to have the lands re-settled with them and included in their patta, or that they cultivated or paid assessment in respect of them.
16. If they had desired to resume engagement for the lands of which they relinquished the engagement in 1865, they should have applied, in 1866, that the land might be re-settled with them and included in their patta,
17. No such application was made, and it was competent to the Revenue authorities to infer that the former pattadars, if they had intended to relinquish the engagement for one year only, and if it was lawful for them to do so, which may admit of doubt, had abandoned the intention, and relinquished the engagement altogether.
18. Such a relinquishment would not, as I have said, imply a surrender of their mirasi right, and, when, in virtue of that right, they applied for readmission to engagements, they were entitled to claim the benefit of the preference which is accorded to persons possessed of such interests under the rules known as the Darkhast rules. A Civil Court cannot, however, compel the Revenue authorities to make settlement with a particular person. In that matter, the discretion of the Revenue authorities is uncontrolled. It is, therefore, unnecessary to enquire whether the refusal to allow the mirasidars a preference was, in the case before the Court, justifiable, inasmuch as the mirasidars had abandoned their engagement, and so given occasion to the Revenue authorities to offer engagements to others. The mirasidars are not entitled to oust from possession the persons admitted to engage for the lands. The appeal fails, and must be dismissed with costs.
19. I agree to the dismissal of the appeal in this case.
20. It is found that the maniyakars represented the mirasidars in their application to the Collector to relinquish lands, and there is evidence to support the finding.
21. There were two sets of lands relinquished. The application in the one case was to be allowed to relinquish the lands for one year. The other was an unqualified relinquishment. In regard to the latter, from the fact of the relinquishment being followed by no attempt on the part of the mirasidars for several years to resume cultivation of the lands, I think the Collector might well infer that the mirasidars had abandoned their right in the lands, and that he might make them over to others.
22. In regard to the other set of lands, the application for relinquishment was only for one year. That is to say, the applicants desired to be freed from the liability of paying the Government charge for one year. Probably, the Collector would not be authorized to make such terms with them, but it does not appear that the application was rejected. Unless it was accepted in the sense in which the applicants made it, it was not accepted at all. Then, on nonpayment of the Government dues, the right to the land would be liable to forfeiture, and the Collector might proceed according to law to sell the lands. Until such procedure was taken, it is difficult to see how the mirasidars could have forfeited their right to the land, provided that they had only intended, by the application of relinquishment, to relinquish for one year. For the right of the Government is only a right to a charge on the land, and a right to forfeit, by due course of law, the title of the person holding the land who does not pay the charge.
23. But in the present case, I think there was evidence to support the finding, which the Judge practically arrives at, that the mirasidars had intended to relinquish altogether, and did, in fact, abandon the land to which the application for relinquishment of one year related. The application mentions the year to which it relates, but does not expressly limit the relinquishment to that year by words importing that the land will be taken up again after the expiry of that year. Since then, until the Collector made over the land to other persons, about 11 years afterwards, there was no cultivation, from which it may be fairly inferred that an out and out relinquishment had originally been intended.
24. If the Act was properly enforced against defaulters, these difficulties with Mirasidars could never arise.
25. I agree that the appeal should be dismissed with costs.
* Lands held in shares, also lands the share of the produce in which is receivable by the Government in kind, as distinguished from Tirvaipat (paying a money assessment) and Maniyam (rent fee)--Wilson.