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Bukronath Singh Vs. the Government of India and - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1880)ILR5Cal389
AppellantBukronath Singh
RespondentThe Government of India and ;nilmoni Singh
Cases ReferredRajah Nilmoney Singh Deo v. The Government
Excerpt:
ghatwal tenure south of birbhum - nature of such tenure--sale of tenure--misdescription in proclamation of sale. - jackson, j.1. this is an appeal from the judgment of a division bench, in which the opinion of mr. justice markby as the senior judge prevailed over that of mr. justice r.c. mitter.2. the suit originally commenced in the court of a munsif, in the district of west burdwan; was afterwards transferred to that of the district judge, as it appeared to have been greatly undervalued. bukronath singh, the plaintiff, asked for a confirmation of possession and declaration of title in respect of mouzas dekhia and others, which he alleged himself to be holding as his jagir mehal, subject to, and in consideration of, the performance of certain public duties. it appeared that his father had, in like manner, held these mouzas; that the defendant, who was the zamindar, having an unsatisfied decree.....
Judgment:

Jackson, J.

1. This is an appeal from the judgment of a Division Bench, in which the opinion of Mr. Justice Markby as the senior Judge prevailed over that of Mr. Justice R.C. Mitter.

2. The suit originally commenced in the Court of a Munsif, in the district of West Burdwan; was afterwards transferred to that of the District Judge, as it appeared to have been greatly undervalued. Bukronath Singh, the plaintiff, asked for a confirmation of possession and declaration of title in respect of Mouzas Dekhia and others, which he alleged himself to be holding as his jagir mehal, subject to, and in consideration of, the performance of certain public duties. It appeared that his father had, in like manner, held these mouzas; that the defendant, who was the zamindar, having an unsatisfied decree against the father, had attached the mehal as the property of the judgment-debtor, and, notwithstanding the plaintiff's objection, caused it to be sold in satisfaction of such decree. The plaintiff alleged that he had not obtained the said mehal by inheritance from his father, who was not the owner thereof, and that it could not lawfully be sold in execution of a decree made against the deceased jagirdar. The Government, which really supported the plaintiff, was made a pro forma defendant.

3. The defendant Raja maintained that the mouzas in question were no jagir, but a part of his mal estates, which had been settled with the plaintiff's father in remuneration for services of a private character, and held at varying rates of rent, and he stated that the original Taruff Dekhia had been divided into two parts, one of which was now in dispute, while, as to the other, his 'mal' right had been conclusively established by a decision of the High Court.

4. The written statement of Government was to. the effect that the mouzas were police service lands and not alienable, and, therefore, the Raja having caused the sale without specification of the jagir character of the lands, and having bought them in execution of his own decree, had acquired no title; and that, although the mehal included lands held by tabedars or subordinate police officers, the plaintiff as sirdar jagirdar was competent to maintain the suit.

5. The suit came on for trial before Mr. Tweedie, the Judge of West Burdwan, who treated the Government as the real plaintiff, and he found that the tenure was both service and rent-paying; that the performance of the service gave the chief title to the lands; that the service was of a public and not of a private nature; that the tenure (or the plaintiff's interest in it) was not ordinarily saleable in satisfaction of a debt of his predecessor, and that the Raja in particular was disabled from purchasing. He, consequently, held that the plaintiff was entitled to judgment.

6. On appeal Mr. Justice Mitter came to the following conclusions:

(1) That, inasmuch as one-third share of the assets of the mouzas had been excluded from account in fixing the assessment at the Permanent Settlement, the Government had not to that extent parted with the ownership, and the jagirdar consequently held both under Government and under the zamindar.

(2) That the right of appointment was in the Government.

(3) That each successive holder took, not by inheritance, but as jagirdar under the condition of the grant.

(4) That the nature of a jagirdar's interest was, in all essential particulars, like that of a Birbhum ghatwal as defined by Reg. XXIX of 1874.

(5) That such interest, consequently, could not be sold on account of the debts of a predecessor.

7. Mr. Justice Markby, on the other hand, agreed with the Court below that the plaintiff did not hold as appointee of the Raja, but also held that no appointment by the Government would entitle an appointee to hold these lands; that no rule of law forbad the alienation of lands of which the holder owed some service to the Government; and that nothing prevented the Raja himself from becoming the purchaser.

8. A certain element of difficulty has arisen in this case from something like a conflict of decision between two Division Benches of this Court, with regard to the two divided parts of Taruff Dekhia. On the one hand, there is a judgment in Nilmoni Singh v. Bukronath Singh (10 W.R., 255) delivered by himself between these very parties, in which it was expressly held, that this tenure was not liable to be sold for the debt of the late jagirdar, the debt being an arrear of rent due from the mehal. On the other hand, there is a decision of the late Mr. Justice D.N. Mitter and Mr. Justice Ainslie, between the Raja and the other half jagirdar, that the right to appoint with a resulting title to enjoyment of the land was not in the Government but in the zamindar. This, it is true, is not the precise point for decision in the present suit, but it was regarded both by the Court of first instance and by Mr. Justice Markby as having at least an important bearing on the decision.

9. In these circumstances I feel bound to say that, as a matter of principle, this appears to me to have been a case in which a reference to the Full Bench would have been proper. For myself, however, as will appear from the view which I take of this case, the judgment in question is not a difficulty in my way. For the purposes of the present appeal, it seems to me immaterial whether the right to appoint the jagirdar of these mouzas exists with the Government or with the zamindar. I take it to be admitted that the plaintiff's father was, and that the plaintiff is, the duly appointed jagirdar.

10. The Raja, it appears, brought a suit against the father to recover possession of some lands quite unconnected with the jagir. He got a decree for possession, and costs amounting to Rs. 72, and it was in execution for these costs that the proceedings took place, which have given rise to the present suit.

11. The decree being against Beer Singh, and Beer Singh having died before execution had fully issued, Section 210, Act VIII of 1859 authorized an application to execute against his legal representative, and such execution would be permitted in the manner prescribed by Section 203. That section permitted attachment and sale of the 'property of the deceased person,' and it seems to me that the principal question which we have to consider is whether Mouza Dekhia and others were property of the deceased which had come into the plaintiff's possession. The jagir in question was not enjoyed by Beer Singh without conditions, nor was it a simple inheritance. The holder of it was bound to perform certain duties of a public nature. Mr. Justice Markby observes, that the character of these services was 'exceedingly indefinite,' but that is precisely what might have been expected. It was not the practice of the country, and of those times, to define exactly the nature of services to be rendered in consideration of a grant. Both parties, grantor and grantee, designedly left it vague and elastic. The grantor trusted that the superior power would make the conditions capable of extension in any direction required, and the grantee relied on the indolence or negligence of his superior to make the compliance with these conditions in general easy. The vagueness of the service required, therefore, is not to be taken as denoting insignificance.

12. The duties then were to be performed, and performed as the condition of holding the jagir which the Government had endowed by setting aside a third of the profits of the land, and no one could perform the duties unless he were appointed or approved.

13. Mr. Justice Markby admits that he did not perform them as appointee of the zemindar, and it seems to me impossible to escape the conclusion at which Mr. Justice Mitter has arrived (viz., that the ultimate right of appointment as of dismissal rested with the Government). In connection with this part of the subject, as we seem to be in some danger of neglecting or forgetting the ancient law of the country, I think it well to fortify myself by the authority of the eminent author of the Analysis of the Regulations, Mr. J.H. Harington.

14. In the judgment of the Division Bench on which Mr. Justice Markby relies, I find the following passage, which I assume to be in accordance with the evidence in the case: 'On examining the figures given in this statement it appears that no difference whatever was made between what are called jagir villages and the other villages of the estate; while no right is claimed for the Government except the right to exact a certain share of the produce as land-revenue. The conclusion, therefore, seems unavoidable that Government, after the Decennial Settlement, retained no interest in the land, except the right to receive rents from it as from all other lands not specially exempted. The fact that the Government officers encroached upon the rights of the Rajas by habitually treating these lands as if they belonged to the class of digwari jagirs, is no more evidence of their right than is the document set out by the respondent at page 127 of the printed book proof that the Government officers had a right to compel the jagirdars of Mouza Dekhia to furnish rations for their camp, though apparently they did so.'

15. In the present case, Mr. Justice R.C. Mitter gives it as the result of an examination of the settlement record, that the Government had set aside as the jagirdar's emolument one-third of the assets, which, accordingly, were not included in the jamma which was the basis of settlement with the zemindar.

16. Now let us turn to Mr. Harington--(3 Anal. 509). After mentioning Reg. XXIX of 1814, he goes on: 'Tenures of this description were mentioned generally in a note to the 2nd volume of this Analysis as held at a low rent by ghatwals or guards of passes. They exist to a considerable extent in all the billy districts on the Western Frontier of Bengal, and appear, for the most part, to have originated in assignment of lands for the protection of the ghats and villages near the hills. There is, however, a material difference in the tenures of ghatwals. Those of Surhat and Deogur in the district of Birbhum, to whom the provisions of Reg. XXIX of 1814 immediately relate have a defined and permanent interest in the lands which compose their respective mehals, and which consist of entire villages or more extensive tracts of land; whereas the sirdar and inferior ghatwals in the contiguous zemindari of Bishenpur have small and specific portions of land in different villages, assigned for the maintenance of themselves and of the paiks, and chowkidars, acting under them, of a nature analogous to the chakran assignments of land to village watchmen in other districts. The ghatwali tenure, however, as ascertained from the result of enquiries made by the Magistrate of Zillas Burdwan, Birbhum, and the Jungle Mehals, and communicated to the Court of Nizamut Adalat in the year 1816, differs essentially from the common chakran in two respects:First, that, being expressly granted for purposes of police, at a low assessment, which has been allowed for in adjusting the revenue payable by the landholders to Government, at the formation of the Permanent Settlement, the land is not liable to resumption, nor the assessment to be raised beyond the established rate at the discretion of the landholders; secondly, that, although the grant is not expressly hereditary, and the ghatwal is removeable from his office, and the lands attached to it, for misconduct, it is the general usage on the death of a ghatwal, who has faithfully executed the trust committed to him, to appoint his son, if competent, or some other fit person in his family to succeed to the office.' He proceeds: 'The above discrimination between the ghatwali tenure, which being an appropriation of land at a low jamma for a police establishment, may be considered within the 4th clause of Section 8, Reg. I, 1793, and the common chakran assessments in lieu of wages to zemindari servants, which have been annexed to the malguzari lands and declared responsible for the public assessment by Section 41, Reg. VIII, 1793, is taken verbatim from a letter written by order of the Nizamut Adalat to the Calcutta Court of Circuit on the 30th October 1816. It is probable that some specific provisions may hereafter be enacted for defining more exactly the rights of the ghatwals referred to. At present, however, those of Zilla Birbhum only are included in the enactments of Reg. XXIX, 1814.'

17. The terms of Reg. I of 1793, Section 8, Clause 4, are as follows: 'The jamma of those zemindars, independent talukdars, and other actual proprietors of land, which is declared fixed in the foregoing articles, is to be considered entirely unconnected with and exclusive of any allowances which have been made to them in the adjustment of their jamma, for keeping up thanas, or police establishments, and also of the produce of any lands which they may have been permitted to appropriate for the same purpose, and the Governor-General in Council reserves to himself the option of resuming the whole or part of such allowances or produce of such lands, according as he may think proper, in consequence of his having exonerated the proprietors of land from the charge of keeping the peace, and appointed officers on the part of Government to superintend the police of the country. The Governor-General in Council, however, declares that the allowances or produce of lands which may be resumed, will be appropriated to no other purpose but that of defraying the expense of the police; and that instructions will be sent to the Collectors not to add such allowances or the produce of such lands to the jamma of the proprietors of land, but to collect the amount from them separately.'

18. It seems to me, as it evidently did to Mr. Harington, that the reservation is one that would be within the meaning of this clause, and, therefore, it clearly cannot be said in this case, that the Government had no interest reserved, although it had bound itself to hold the reserved allowance applicable to certain purposes only, and it seems to follow most plainly that the reserved one-third, is held by the jagirdar directly from the Government as it forms no part of the zemindar's jamma.

19. But, as I have already said, it appears to me needless, for the purpose of the present appeal, to determine with whom the appointment lay. What is material is this, that the incoming jagirdar took the land, subject to either appointment or approval, and with an attached burthen of public duty. These two restrictions appear to me conclusively to show that the plaintiff did not hold these mouzas as 'property of the deceased judgment-debtor which had come into his possession,' but that he held them as a quasi public servant under precisely the same tenure as his father had held them, and the father's interest was strictly limited to his own life and performance of the functions. However slight the restrictions on succession, and in whosoever hands they rested, they appear to me sufficient to deprive the jagir of the character of simply heritable property.

20. I am, therefore, of opinion that the creditor acted without warrant of law in attaching, and that the Munsifs Court had no authority to sell, the tenure then in possession of the plaintiff as jagirdar, and that the plaintiff is entitled to be retained in possession thereof notwithstanding the sale. The claim which he preferred was, perhaps, less a claim under Section 246 of the repealed Code than an objection to the procedure adopted. But this is not very important. I have felt myself bound to base my judgment on the reason which I have just stated, although there is another and perhaps a shorter ground, viz., that the sale complained of has not passed the tenure of which the plaintiff is the holder. As to this latter question, I am in doubt whether it has been properly raised in the earlier stages of the case. It was not one of the issues framed, nor is there any reference to it in the judgment of the Court of first instance, until we find it taking its place as the first of several particulars in which the Judge applying the principles adopted in the judgment, and the finding on the several issues, considers the sale to be faulty.

21. The defendant-Raja, it is true, is not deserving of much consideration. He has sought by this proceeding to compass an end after which he has been striving for many years. He has in his written statement advanced allegations, which not only are absolutely untrue, but as to which he is distinctly concluded by the decisions arrived at in previous litigations of his own seeking. But I should not wish him to be able to say that his appeal had been lost upon an issue not raised in either of the previous hearings, and which, perhaps, might be more fitly raised in a suit on his part to obtain possession.

22. The plaint asks for a declaration of the plaintiff's title and for maintenance in possession. To so much relief I think he was entitled. I would, therefore, reverse the judgment of the Court below and restore that of the District Judge in so far as it gave him that relief.

23. The result is, that the judgment of Mr. Justice Markby will be reversed, and the decree of the Court below will be affirmed.

Ainslie, J.

24. The plaintiff's case is that he, as a jagirdar, performing public duties, holds a jagir, comprising Mouza Dekhia and other villages, under the Government; that the Raja of Panchkote, having obtained a decree for the costs of a certain suit against his (the plaintiff's) father, attached those villages in execution thereof; that he thereupon objected to the same being attached under Section 246, Reg. VIII, 1859, but the objection was overruled, and hence it has become necessary for him to establish his title by a regular suit.

25. The Raja denies the title of the Government to these lands, which he claims as appertaining to his perpetually-settled estate, and alleges that they were granted to the plaintiff's ancestor as a service tenure, and that they are liable to be sold to satisfy debts due by the plaintiff's father.

26. The subject of the present suit, is a portion of what originally formed one holding, which was divided in 1818 between Guru Churn Mozumdar and Dhurm Das Chuckerbutty.

27. The Raja has, undoubtedly, failed to establish the alleged grant for personal service.

28. It is established that the jagir is an ancient one of unknown origin.

29. There was, at the time when the British Government was first established a chain of ghatwali tenures extending from Bhagalpur southwards to Midnapur. The Bhagalpur ghatwalis have been the subject of much litigation between the Government and the Raja of Khurukpur, which terminated in favor of the latter. See the case of Raja Lelanund Singh v. The Government of Bengal (6 Moo. I.A., 101).

30. Their Lordships of the Privy Council came to the conclusion that the Khurukpur ghatwalis formed part of the permanently-settled estate of the Raja, and were included in the assessment, and that they could not properly to described as thanadari or police lands.

31. The Birbhum ghatwalis are the subject of express legislation (Reg. XXIX of 1814).

32. Those to the south of Birbhum were not dealt with in this way. The Government has left them unnoticed. One of these is the subject of the present appeal.

33. This was, undoubtedly, included in the Permanent Settlement of Panchkote, and the Raja is responsible to Government for due payment of revenue, and subject in respect thereof, to the stringent rules for the realization of Government revenue. It is immaterial for the purposes of this appeal, whether the revenue was assessed on the gross income of the lands or after a deduction of one-third. It seems to me that, inasmuch as the zemindar is responsible to Government for punctual payment of the revenue, he must, in the absence of any special law on the subject, have the same means for enforcing his demands against the sub-tenant as any other zemindars: and, therefore, if the tenant falls into arrears, he may recover rents by the same process that is available to other zemindars, and may, therefore, sell the tenure for arrears of rents accruing due thereon; and the fact that the tenant for the time being may be bound to render certain public services cannot interfere with his right to resort to sale for the recovery of his rents. He may, therefore, sell the tenure subject to its incidents, and not merely the personal interest of the indebted holder as an interest for life subject to-be determined by the action of the Government for failure to discharge the duties attaching to the holding of the land: and such right cannot be defeated by the death or dismissal of a ghatwal. The Permanent Settlement, while imposing certain obligations, conferred corresponding right, which, in the absence of any express agreement at the time or since, can only be curtailed by legislation. If this view is correct, it follows from it, in my opinion, that the tenure is equally saleable for other debts of the holder.

34. If he incurs debts, it makes no difference whether he applies the profits of the estate to paying them while he allows his rent to fall into arrears, or uses them to pay his rent while he allows other debts to accumulate. It seems to me, that the tenure is as much saleable in the one case as in the other, though there may be different consequences of a sale, according, as it may be, under the Rent Law or under the ordinary procedure or realizing decrees for money.

35. The fact that the Government thought fit to make special provisions for the Birbhum ghatwals and left those to the south unprovided for, shows that they intended to leave the latter to be governed by the general law of Bengal. If the provisions of existing Regulations were not expressly applicable to these, as they were declared by the preamble of Reg. XXIX of 1814 not to be to the former, why was the Regulation then restricted in its operation to Birbhum and never since extended.

36. That Regulation fully recognizes the zemindar's lights under the Permanent Settlement (Section 3), and gives him a guarantee for punctual payment of the rents due to him (Section 4), as the Government undertakes not only to pay surplus over revenue assessed of rents collected, but surplus of rents assessed, and by Section 5 any increased rents are to go to the zemindar. In consideration of this, the Government thought fit to make an especial rule for the succession to these lands, and though this has been held in Binoderani Sein v. The Deputy Commissioner of the Sonthal Parganas (7 W.R., 178) to give each successive tenant an estate unencumbered by his predecessor, this decision was expressly based on the words of the Statute. It has also been held in The Government v. Monohur Deo (W.R., 1864, pp. 39, 42), that a female can succeed, so that personal service is no part of the condition of the holding; and that this is not a necessary condition even in the Birbhum ghatwalis is evident from the provisions of Section 5 for recovering arrears by public sale as in the case of other lands held from the Government.

37. The fact of certain services being attached to the possession of the tenure in suit is, therefore, clearly no ground for holding that it is not transferable by sale. The fact that the Government can dismiss a ghatwal, and so cut off the descent, does not destroy the generally hereditary character of the holding, or make these lands, when included in the Permanent Settlement, police lands resumable by Government under Clause 4, Section 8, Reg. I, 1793. Whether any part of the rent, which may have been allowed to the ghatwal, and not included in the assets on which the settlement with the Raja was based, is a resumable allowance for keeping up a police establishment, is immaterial in this appeal. The lands were certainly not appropriated for the purpose of maintaining such establishment, for they were assessed for revenue; see the case of Lelanund Singh v. The Government of Bengal (6 Moo. I.A., 101), where the character of ghatwali tenures generally is discussed.

38. It has been doubted whether the order of the Magistrate of the 22nd August 1816, directing the Raja to appoint, after the dismissal of Rup Singh, is evidence that the power of appointment was with the Raja. The further proceedings of the Magistrate of the 30th March 1822, rescinding his earlier order of the 27th February 1822, and referring the parties (the ghatwal and his tabedars or subordinates) to the Civil Court for the settlement of their disputes as to the division of the land, seem to me to show that, at that time the Magistrate looked upon the jagirdar as not subject to his control in the matter of the appropriation of the jagir lands. And this supports the view taken by myself in the former case, and by Mr. Justice Markby in the Court below, in whose judgment I entirely concur.

White, J.

39. The appellants before us are the plaintiff in the Court below, and also the Government, whom the plaintiff made, what he calls, a pro forma defendant to his suit. The respondent, whom I shall call the Raja, is the principal defendant in the Court below. The suit is brought by the plaintiff for the purpose of being confirmed in the possession of nine properties, consisting of the whole of certain mouzas and of certain shares in other mouzas.

40. Two questions arise in this case: one, whether the lands in suit, when they came into the possession of the plaintiff, were liable to be sold in execution of a decree obtained by the Raja against the deceased father of the plaintiff; the other question is, whether the Raja, by virtue of the alleged sale, has acquired a title to the mouza in dispute under which he can oust the plaintiff.

41. The Court below has decided the first question in favour of the Raja, but the second one against him; and, consequently, relieved the plaintiff against the cloud upon his title occasioned by the sale and quitted him in the possession of the mouza.

42. The Judge says in paras. 41 and 42 of his judgment--'I find that the interest is saleable for the purposes aforesaid' (i. e., in satisfaction of a decree for a debt due from the plaintiff or his predecessor to the defendant), 'provided it be sold subject to the burden of the performance of the jagir services by the purchaser after he has obtained appointment to these duties at the hands of the Magistrate or his representative police authorities, and installation on the land by the same authorities. Applying the principles adopted is this judgment, and the finding on the several issues, to the particular sale, which in the special subject of interest in the present suit. I find that the sale is bad in the following particulars: the first of which is, that the Raja caused the tenure to be advertized for sale as if it were an ordinary estate, to which no burden of a service lien were attached.'

43. As regards the two questions raised in the case, I will first consider that which relates to the effect and operation of the sale, for, if that question is determined in favour of the appellant, it is unnecessary to pronounce a decision upon the other question.

44. The sale is made under a decree which the Raja had obtained on the 24th of July 1866 against the plaintiff's father and others, and which is to be found at p. 131 of the Paper-book. The decree awarded to the Raja, as his costs of suit, Rs. 72-6-6, with interest at 12 per cent. till realization. After execution-proceedings had been commenced for these costs and struck off several times, similar and further proceedings were instituted in 1874, which ultimately resulted in the disputed sale. The amount due under the decree had then swelled, with the costs of execution, to Rs. 228.

45. Now what was sold under the decree, and what passed by the sale? The sale-certificate, which is the usual primary evidence on these points, has not been produced by the Raja, and these questions must be answered by a reference to the decree and the sale-proclamation, which appear to be the only documents of title that have been put in evidence by the Raja.

46. The terms of the decree have just been mentioned. In the sale-proclamation, a document which issued on the 11th of June 1874, the present plaintiff is stated to be the judgment-debtor, which I presume must be intended to mean that he represents his deceased father, the judgment-debtor; for, except in this sense, the sale cannot in any way be supported, as the decree is not against the present plaintiff, and, therefore, does not warrant execution being taken out against him personally. The proclamation then states,--that the sale extends only to the 'right, title, and interest of the judgment-debtor;' and after enumerating the nine items of property, being the mouzas in dispute, describes the subject of sale as the right of the judgment-debtor to the amount of profits due to him after deduction of Rs. 550-7 as annual rent due on account of the mouzas aforesaid.

47. As regards these mouzas and their tenure, I think it is clear upon the evidence, first, that they were held by the plaintiff's father, and are now held by the plaintiff, subject not only to the payment of certain rent, but also to the rendering of certain services; secondly, that the rent is a reduced rent, because of the services which the holder is liable to render; thirdly, that the services are of a public nature, and such as the Government has an interest in the performance of, and that although the rent is payable to the Raja, the services are not of a private character or personal to the Raja, such as he can put an end to at his pleasure. Independently of the evidence in the case on these points, the Raja seems, as regards the nature of the services on which the mouzas are held, to be concluded by the result of some previous litigation which took place between himself and the plaintiff's father. Several years ago the Raja brought a suit against the plaintiff's father to resume the mouzas in dispute and recover khas possession, alleging that the services on which they were held, were private and personal to himself, and had been dispensed with or had ceased to be performed. It was found by the two lower Courts, that the services were not private or personal to the Raja but of a public nature. These decisions were affirmed by the High Court, and ultimately by the Privy Council; see Rajah Nilmoney Singh Deo v. The Government (6 W.R., 121; S.C., 18 W.R., 321).

48. In dealing with the question as to what passed by the execution sale, it is immaterial to consider by whom those services are enforceable, whether directly by the Government, or intermediately by the Raja, to whom the rent is payable; it is also immaterial, upon the question now before me, to consider whether the purchaser can enter into possession of the lands without being appointed by Government to perform the services.

49. The nature of the tenure by which the plaintiff holds, and his father before him held, the mouzas being such as I have described, is that tenure effectually put up for sale by the proclamation to which I have referred

50. The proclamation describes the tenure of the judgment-debtor as an ordinary rent-paying one, and ignores the important fact that it is a service tenure.

51. The misdescription of the holding is in a most material particular, and, having regard to the unsuccessful attempt which the Raja has made to resume the tenure, it is not too much to say that the tenure was wilfully misrepresented in the proclamation.

52. A purchase of the subject of sale as described in the proclamation did not, in my opinion, pass the tenure which the plaintiff has, or which his father had, in the mouzas in question.

53. The plaintiff, being still in possession of the mouzas and threatened with expulsion, may properly avail himself of the defect in the Raja's title founded on the misdescription of the subject of sale. He may, I think, justly say that whatever the Raja has bought he has not bought the right of myself or my father to the tenure which I have, or he had, in the mouzas.

54. The Government also, which is interested in the performance of the public services attached to the tenure, and whose presence on the record as defendant has not been objected to by the Raja, may properly oppose a sale which treats the plaintiff's tenure as a simple rent-paying one, and which, if held to pass the tenure, might be used hereafter as evidence that the tenure was discharged from the services to which it is undoubtedly subject.

55. It appears to me that the appeal may properly be disposed of on the point which I have mentioned; for both the plaintiff and the Government have in their respective pleadings objected in effect to the operation of the sale on the ground that the mouzas were sold without declaring the jagir tenure, or without specifying that they were service lands. And, moreover, the Court below has based its decree on the sufficiency of the objection.

56. Being of opinion that the lower Court was right in holding that the execution-sale, which took place in 1874, conveyed no title to the Raja under which he could turn the plaintiff out of possession, it is unnecessary to determine in this suit the other question which has been raised, and which was argued before us at great length, and as to which Mr. Justice Markby and Mr. Justice Mitter differed--viz., whether the interest of the plaintiff's deceased father in the mouzas was such that, when they came into the possession of the plaintiff, they were assets of the father, and, as such, liable to be attached and sold for his debts.

57. I would allow this appeal, and confirm the decree of the first Court.


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