Mitra and Ormond, JJ.
1. The chaukidari chakran lands March 22. in Tillage Basudevnagar, otherwise called Uchkaran in estate No. 1153 of the Birbhum Collectorate, were resumed by the Collector of the district under the provisions of Bengal Act VI of 1870, and were on the 6th December 1895 transferred to the proprietors of the estate as provided by Section 50 of the Act. A share of the parent estate was on the 27th June 1898 sold under Act XI of 1859 for arrears of land revenue and the plaintiff claims under the purchase.
2. The plea of the defendants is that by the transfer made on the 6th December 1895 the chaukidari chakran lands were separated from the parent estate and did not pass to the plaintiff by the sale of the parent estate.
3. The Munsiff, in whose Court the suit was instituted, gave effect to the plea of the defendants and dismissed the suit. The Subordinate Judge, on appeal, held that notwithstanding the transfer by the Collector the lands continued to be parts of the estate and passed to the purchaser by the sale of the parent estate.
4. The question in the appeal before us relates to the effect of the transfer by the Collector.
5. In the Decennial Settlement of Land Revenue in 1790, which was made permanent in 1793, thaniadari and lakhiraj lands were excluded, but chaukidari chakran lands were included in the assessment. Section 41 of Regulation VIII of 1793 declared chakran lands to be responsible for the public revenue assessed on an estate in common with all other malgitmri lands in the estate. The proprietors of estates had control over chaukidars as the lands held by the chaukidars were included within their estate and were considered to be parts of the estates. The Police Regulation XX of 1817 recognised the right of the proprietors.
6. In Joy Kishen Mookerjee v. The Collector of East Burdtean (1861) 10 Moo. I.A. 16 the Judicial Committee of the Privy Council held that lands held by chaukidars performing public duties and also private duties to proprietors must be held to be lands covered by Section 41 of Regulation VIII of 1793 and included in the estates settled with the proprietors. 'Within six years, however, of this decision, Bengal Act VI of 1870 was passed, and Section 48 of the Act directed the transfer by the Collectors of chaukidari chakran lands to the zemindar of the estate or tenure within which the lands are situated. The Act assumed, notwithstanding Section 41 of Regulation VIII of 1793 and the decision of the Judicial Committee in Joy Kissen Mookerjee's case, that chaukidari chakran lands were not liable for the payment of land revenue and were not parts and parcels of the estate settled with a proprietor.
7. The effect of these lands being resumed by Government and transferred to the zemindar under Bengal Act VI of 1870 was to detach them from the parent estate and to grant a new title in respect of these lands to the proprietor of the parent estate, who took the lands subject to those liabilities only, which are mentioned in the Act, viz. the payment of chankidari tax, &e;, (see Section 51 of the Act). Such lands thus came to be considered to be separate from other malguzari lands of an estate, which by the operation of the Settlement Regulation had already been transferred to the proprietor. If chaukidari chahran lands were considered to be integral parts of an estate settled with a proprietor, no further transfer would have been necessary. Section 41 of the Regulation was thus impliedly repealed in Districts or parts of Districts, to which Bengal Act VI of 1870 was made applicable.
8. As soon as a transfer takes place under Section 50 of the Act the land vest in the proprietor on a different right, i.e., a right under the transfer as distinguished from his right as a settlement-holder of the entire estate. It is immaterial whether the lands transferred find or not a separate place in the General Register of Estates kept under Bengal Act VII of 1876, when there is a separation in substance and separate payment of the assessed amount of revenue to the Panchayet. Sections 54 and 55 of the Act of 1870 make the matter quite clear. The realisation of the assessed amount takes place separately and in a separate way from ordinary land revenue, and the effect of a sale of the lands under Section 55 of the Bengal Act VI of 1870 is to vest them in the purchaser free from all other incumbrances, save and except the liability to pay the assessed amount payable to the Panchayet. Section 55 clearly contemplates that resumed chaukidari chahran lands have almost all the incidents of revenue-paying estates borne on the Collector's revenue roll. On a sale under Section 55 the proprietors of the estate and the proprietor of the resumed lands became different, the latter being then immediately separated from other malguzari lands. We do not see why the same consequences should not follow on the sale of the parent estate.
9. We are therefore of opinion that the decision of the Lower Appellate Court is erroneous and should be set aside, and we decree this appeal and restore the decision of the Munsiff with costs in all the Courts including this Court.