1. The plaintiff instituted the suit out of which this appeal has arisen, for declaration of her mourasi mokurrari right to some lands and for khas possession of the same, and in the alternative for possession by receipt of fair and equitable rent and for mesne profits.
2. The plaintiff's case was that she held the lands in suit under the defendants Nos. 1 to 4 under a maurasi mokurrari lease granted to her by their predecessors, the former zemindar of the pergunnah and that the lands are described in the said lease as being paikan jaigir lands and as comprising an area of 82 bighas, but they have been found on measurement, at the recent survey and settlement, to be 130 bighas and odd, that the lands were the paikan land of Mouzah Chaitanyapur and were in the possession of certain paiks who used to hold them in lieu of wages and paid some peshkush rent and rendered service to the plaintiff or her predecessor, that the plaintiff had come to learn that the Collector had abolished the paiks and resumed the lands and settled the same with the defendants Nos. 1 to 4 and that the defendants Nos. 5 to 43 claimed to hold the lands under settlement obtained by them from the defendants Nos. 1 to 4. The plaintiff alleged that she had been dispossessed as the defendants denied her title and refused to pay the rents The Secretary of State for India in Council was impleaded in the suit as the defendant No. 44.
3. The plaintiff challenged the validity of the resumption proceedings and of the settlements made by the Collector in favour of the defendants Nos. 1 to 4 and of the settlements under which the defendants Nos. 5 to 43 claimed to hold under the defendants Nos 1 to 4
4. The defendant No. 44 pleaded that the disputed lands were paikan jaigir lands which according to the said defendant are chowkidari chakran lands and which were resumed by the Government and transferred to the zemindars, the defendants Nos. 1 to 4, under the provisions of the Chowkidari Act VI (B.C.) of 1870. The principal defendants, i.e., the defendants Nos. 1 to 4 took up the position that the lands were balagasti paikan lands, and as such were Police or thanadari lands which came within the purview of Clause 4, Section 8 of Regulation I of 1793. Only one other plea of these defendants is material at this stage, namely, that under the lease under which the plaintiff claimed she had no title to the paikan jaigir lands of Mouzah Chaitanya-pur, but only the right to collect the peshkush therefrom.
5. The resumption proceedings were not filed by any of the parties and were not before the Court. Both the Courts below held that the paikan jaigir lands of the village were not excluded but settled with the plaintiff's predecessor under the lease. The Subordinate Judge held that the lands may have been balagasti paikan lands, that they were not thanadari lands but were chowkidari chakran lands which had been validly resumed by the Collector as coming within the scope of Act VI (B.C.) of 1870, under Section 48 of which the Government has the right to resume the lands and to transfer the same to the zemindar of the estate within which the lands are situate and that under Section 51 of that Act the plaintiff had her title to the lands by virtue of the lease in favour of her predecessor. He dismissed the suit against the defendant No. 44 and decreed it against the other defendants declaring the plaintiff's title to the lands under the lease and ordering that she should get possession therein as against the defendants Nos. 1 to 4 by receiving rents from the defendants Nos. 5 to 43 and also awarding her mesne profits against the defendants Nos. 1 to 4. The defendants Nos. I to 4 thereupon appealed to the District Judge. The District Judge held that the plaintiff had failed to prove that the lands were the chowkidari chakran lands of the village and that the evidence in the case suggested that they are not such lands. He held that the resumption proceedings, such as they were, were entirely improper if the lands were chowkidari chakran lands and if the said proceedings were properly conducted the lands must have been something else than chowkidari chakian lands. He appears to have been inclined to the view though he has not expressly stated it that the lands were Police lands, and that small resumption proceedings of this nature are not unknown. He was, however, of opinion that it was immaterial what the nature of the lands was; for, whatever it was, the plaintiff was not affected by the proceedings that took place between the Collector and the defendants Nos. 1 to 4 and that the said defendants had no right to dispossess the plaintiffs as a result of the said proceedings. In this view of the matter the learned District Judge dismissed the said appeal.
6. The appellant who is one of the defendants and in whom the interest of all the defendants Nos. 1 to 4 is said to have now vested has preferred this appeal. The contention urged on his behalf is that under the lease on which the plaintiff rests her title the lands were not settled with her, but that she was only granted the right to collect the peshkush rent, and that the lands are Police or thanadari lands of the mouzah, and when they were resumed by the Government the plaintiff lost the right to collect the said peshkush rent. On this contention of the appellant two questions arise for consideration: first, what are the rights of the plaintiff under the lease in the disputed lands; and second, whether the lands are thanadari lands, and if so, how are the rights of those who held such lands under settlement from the zemindar affected on resumption by the Government. To deal with these questions it is necessary to refer shortly to some of the Regulations dealing with the subject. In Lord Kingsdown's judgment in the case of Joykish en Mookerjee v. Collector of East Burdwan 10 M.T.A. 16 : 1 W.R.P.C. 26 : 1 Suth. P.C.J. 542 : 2 Sar. P.C.J. 54 : 19 E.R. 879, the history of chakran lands was set out with remarkable lucidity and it was pointed out that the effect of the Decennial Settlement was to divide the chakran lands into the following two classes:
1st, thanadari lands which by Bengal Regulation I of 1793, Section 8, Clause 4 were made resumable by the Government; the Government taking upon itself the maintenance of the general Police force and relieving the zemindar from that expense; and 2nd, all other chakran lands which by Bengal Regulation VIII of 1793, Section 41 were whether held by public officers or private servants, in lieu of wages to be annexed to the malguzary lands, and declared responsible fpr the public revenue assessed on the zemindars independent talooks or other estates in which they were included in common with other malguzary lands therein.
6. The distinction between these two classes of lands was pointed out by the same Board in the earlier case of Raja Lelanund Sing Bahadoor v Government of Bengal 6 M.I.A. 101, 4 W.R.P.C. 77, 1 Sar. P.C.J. 505, 1 Suth. P.C.J 248, 19 E.R. 38, and the precise character of thanadari lands was described in the following passage in the judgment of their Lordships in that case:
The Police of the country was maintained by means of thanadars, or Police Officers, kept by the zemindar, and appointed and paid by them; but where no other provision existed for their maintenance, the expense was in effect defrayed by the Government, either by direct allowances to the zemindar, or by deduction from his jumma, or by excluding from assessment, or assessing below their value, lands appropriated to that purpose by the zemindar.
7. The two paragraphs which follow the passage quoted above describe the lands held respectively by persons under the name of chowkidars arid various other names and by ghatwals, and it is not necessary to quote them here.
8. Their Lordships then proceeded to point out that by 1792 the thanadars or public Police Officers appointed by the zemindars had been found very inefficient and the Government had appointed officers of their own to assist in keeping order, who had concurrent jurisdiction with those named by the zemindars and in that year the Government determined altogether to suppress the thanas or Police establishments and effect a redical change. Regulation LXXII of 1791 declared the zemindars responsible for the peace of the country and the thanadars and chowkidars were allowed to remain under their control. The inefficiency of the arrangement led to the promulgation of Regulations XLIX and L of 1792 by which the Police establishments maintained by land-holders were abolished and the Government took upon itself the duty of pre serving peace and preventing crime by means of a Police force of their own. The latter Regulation made provisions for the levying of a Police tax, and for obtaining information as to the nature of allowances made to the zemindars and of the lands held by them for maintaining thanadars and other Police Officers, and the Magistrates of the Districts were to enquire and report on these matters. These enquiries were not completed when Regulation I of 1793 was passed. In Section 8, Clause 4 of Regulation I of 1793, therefore, it was enacted that the jama declared permanent was exclusive of and unconnected with the lands or allowances for keeping up thanas or Police establishments, and that the Governor-General in Council had the power to resume the whole or part of such allowances or produce of such lands according as he thought proper. It was further declared in this clause that the allowances or the produce of the lands which might be resumed, would be applied exclusively to the defrayal of the expense of the Police, and that the amount that was to be thus collected was not to be added to the permanent jama, but was to be assessed and collected separately. As regards the class of lands to which this clause was to be applicable the Privy Council observed thus in the case of Raja Lelanund Sing Bahadoor v. Government of Bengal 6 M.I.A. 101, 4 W.R.P.C. 77, 1 Sar. P.C.J. 505, 1 Suth. P.C.J 248, 19 E.R. 38:
Nothing can be clearer than this--that the lands referred to, are lands which the zemindars had been permitted by the Government to hold free from revenue, or at a reduced revenue, for the purpose of keeping up thanadars; not lands which the zemindars had permitted other persons to hold free from rent, or at a reduced rent, or lands which such persons had a right to hold free from rent, or at a reduced rent and that any lands which were in the first predicament were to be reported to the Government by the Magistrate together with his opinion, whether it was consistent with equity that the whole or any part of the produce of such land should be brought to the public account; and further, that this provision relates and is confined to a class of officers whom the zemindar is no longer permitted to keep.
9. Regulation XLIX of 1792 was re enacted with alterations and amendments in Regulation XXII of 1793 the object being to place the Police exclusively in charge of officers who might be appointed to the superintendence of it on the part of the Government. Section 2 of the latter Regulation further enacted that the landholders and farmers of land who were before bound to keep up establishment of Police Officers, for the preservation of the peace, were required to discharge them and prohibited from entertaining such establishment in future. Regulation XXIII of 1793 re-enacted in slightly different words the provisions of Regulation I of 1792; Section 56 of Regulation XXIII of 1793 was in these words: 'The Collectors are to report all allowances that may have been made to the proprietors of land for keeping up Police establishments, either by deduction from their jumma, or by permitting them to appropriate the produce of lands for that purpose, or in any other mode which may not have been already resumed, with their opinion how far the whole or any portion of such allowances can with equity be resumed in consequence of the proprietors of land being exonerated from the charge of keeping the peace, as declared in Regulation XXII of 1793' Regulation XXIII of 1793 was repealed by Regulation VI of 1797, Section 2, Clause 1. Section 2, Clause 2 of this Regulation declared that the produce of the lands, and the allowances resumed or resumable uuder Section 8, Clause 4 of Regulation I of 1793 being still applicable towards defraying the expenses of the Police, were to be carried to the public account towards discharging the same as heretofore. It is unnecessary to proceed further with the subsequent Regulations; it is sufficient to say that the previous Police Regulations were repealed by Regulation XX of 1817 and that subsequent to Regulation VI of 1797 there is no Regulation which touches the question of thanadari lands
10. By Regulation XVIII of 1805 certain exceptions were made in the case of jungle mehals which were formerly included in Zillas Bheerbhoom, Burdwan and Midnapore but were formed into a distinct Zilla under that Regulation, and the prohibition to landholders from entertaining establishment of Police Officers was declared inapplicable to them, and special rules were prescribed for certain landholders, farmers or managers who were to be especially authorised by the Governor General in Council to entertain an establishment of Police. Some special rules were also framed by Regulation XIII of 1805 for the Police of Zilla Cuttack and some parganas which were formerly dependencies of Cuttack but were then included in Zilla Midnapore. It is not suggested, however, that the lands in suit are situate in any of the places to which these Regulations apply and it is not necessary to trace the, Subsequent history of these Regulations.
11. Section 36 of Regulation VIII of 1793 enacted that the assessment was to be fixed, exclusive and independent of all existing lakheraj lands whether exempted from the kheraje (or public revenue) with or without authority, whereas thanadari lands, by Section 8, Clause (4) of Regulation I of 1793 were included in the settlement though the assessment of the jumma which was declared fixed was to be considered entirely unconnected with and exclusive of any allowances which had been made in the adjustment of the jumma and of the produce of any lands which had been allowed to be appropriated for thana purposes. This difference has been clearly pointed out in the following passages in the judgment of the Privy Council in the case of Raja Lelanund Sing Bahadoor v. Government of Bengal 6 M.I.A. 101, 4 W.R.P.C. 77, 1 Sar. P.C.J. 505, 1 Suth. P.C.J 248, 19 E.R. 38:
The same provision with respect to chakran and lakheraj Iands which had been contained in the Regulation of 1789 are repeated in those of 1793, namely, that the chakran lands should be included in the settlement, and the lakheraj lands excluded from it.
Although both the lakheraj lands and the thanadari lands are reserved for further enquiry under these Regulations, there was obviously a great distinction between them with respect to the period at which the decision relating to them ought to be made.
The lakheraj lands were separate from the zemindari, and were excepted out of the settlement. The validity of the exemption claimed for them depended on the validity of the grant under which it was claimed. Very many of the grants were believed to be fraudulent; but each case was to depend on its own circumstances. The investigation of such circumstances might occupy a long time, and a discovery of grounds of suspicion might take place at any period. As these lands were not to be included in the settlement, no great inconvenience could arise from the delay.
But with respect to the allowances for a Police force made by the Government, whether in land or in money, the case was quite different. They were included in the settlement, and if any additional charge was to be thrown upon the landholder in respect of such allowances, it was necessary that it should be ascertained as part of the settlement. No difficulty in ascertaining the fact could possibly exist. The assessment had been very recently made, and the officers who has made it must, in every case, be perfectly aware whether any such allowance had or had not been made.
12. It is necessary to note here one of the arguments addressed to us on behalf of the appellants which is to the effect that thanadari lands had never been included in the settlement with the zemindar made underthe Permanent Settlement Regulation and in support of this argument reference has been made to Section 31, Clause (2) of Regulation II of 1819 which runs in these words: 'It is further hereby declared and enacted that all claims by the Revenue Authorities on behalf of Government to additional revenue from lands which were at the period of the Decennial Settlement included within the limits of estates for which a Permanent Settlement has been concluded, whether on the plea of error or fraud, or any pretext whatever, saving, of course, the case of lands expressly excluded from the operation of the settlement, such as lakheraj and thanadari lands, shall be, and be considered wholly illegal and invalid.' It is clear, however, that while both lakheraj and thanadari lands were excluded from the operation of the Permanent Settlement, lakheraj lands were neither assessed nor settled with the zemindar while thanadari lands were settled with the zemindar but excluded from the operation of the Permanent Settlement in the sense that the resumption and re-assessment thereof was reserved by the Government. This is clear from the passage in Lord Kingsdown's judgment in Joykishen Mookerjee v. Collector of East Burdwan 10 M.T.A. 16 : 1 W.R.P.C. 26 : 1 Suth. P.C.J. 542 : 2 Sar. P.C.J. 54 : 19 E.R. 879 quoted above and also from the judgment of the Judicial Committee in Secretary of State for India v. Kirtibas Harichandan Mahapatra 26 Ind. Cas 676 : 42 C. 710 at p. 722 : 42 I.A 30 : 21 C.L.J. 31 : 19 C.W.N. 65 : 2 L.W. 11 : 17 M.L.T. 1 : 17 Bom. L.R. 32 : 28 M.L.J. (P.C.).
13. By the repeal of the previous Police Regulations by Regulation VI of 1797 to which reference has already been made the provisions for making enquiries as a result of which resumption in connection with thanadari lands could be made were repealed. Section 2, Clause 2 of Regulation VI of 1797 provided that 'the produce of lands and the allowances resumed or resumable under Clause (4), Section 8 of Regulation I of 1793 being still applicable towards defraying the expense of the Police are to be carried to the public account towards discharging the same as heretofore.' The next Regulation relating to resumption and assessment, namely, Regulation II of 1819, which was passed to carry out effectively the object of the Resumption Regulations of 1793, namely, Regulations XIX and XXXVII of that year and of the corresponding provisions enacted in subsequent years, that is to say, to resume the revenue of lands held free of assessment under illegal or invalid tenures and for defining the right of the Government to the revenue of lands not included within the limits of estates for which a settlement had been made, could have nothing to do with resumption in connection with thanadari lands; so also the other Regulations that were subsequently passed in furtherance of the same object notably Regulations IX and XIV of 1825 and III of 1828. In Harrington's Analysis of the Laws and Regulations, Vol. I, page 575 the state of affairs in 1807-8 after the abolition of Police tax by Regulation VI of 1897 is described and it is shown that the expenses for Police establishment were far in excess of the produce of lands which had formerly been appropriated to the expense of Police establishments and the allowances that had been made for the same purpose, and it is also stated that 'the revenue of the resumed thanadari lands was very inconsiderable.' All these point strongly to the conclusion that resumption in. connection with thanadari lands properly so-called was concluded within a short time after the Permanent Settlement and the zemindars were not allowed to enjoy the produce of such lands or allowances granted in respect of them to the detriment of the public revenue for any considerable length of time afterwards. It is true that there have been attempts at resumption on the footing of lands being thanadari lands from time to time afterwards, but it is noticeable that such attempts have often proved abortive. The Privy Council in the case of Joykishen Mookerjee v. Collector of East Burdwan 10 M.T.A. 16 : 1 W.R.P.C. 26 : 1 Suth. P.C.J. 542 : 2 Sar. P.C.J. 54 : 19 E.R. 879 held though not as a proposition of law but upon the evidence that was on the record in that case that 'the lands of that description had already been resumed by the Government.' In a more recent case again, namely, that of Ranjit Singh Bahadur v. Kali Dasi Debi 40 Ind. Cas. 981 : 44 C. 841 at p. 853 : 44 I.A. 117, 25 C.L.J. 499 : 21 C.W.N. 609 : 32 M.L.J. 565 : 15 A.L.J. 390 : 19 Bom. L.R. 462 : (1917) M.W.N. 459 : 6 L.W. 101 : 2 P.L.W. 1 : 22 M.L.T. 489 (P.C.) the Judicial Committee observed: 'As to chakran lands of the former class, they were by Bengal Regulation I, Section 8, Clause 4 made resumable by Government, the Government relieving the zemindar from the duty of maintaining a Police establishment. These thanadari chakran lands were, infact, shortly afterwards resumed and became Government lands, the title of the zemindar being extinguished by such resumption.' In quoting the above o bservations I do not suggest that they are conclusive on the question as to whether there are any thanadari lands which still remain unresumed. They have nevertheless some bearing on the question of probability. The appellant claims under a settlement from the Collector on the lands having been resumed and he was entitled to prove despite all this that the resumption took place on the footing that the lands were thanadari or that the proceedings relating to the resumption were such as were sanctioned by the Regulations or were in accordance therewith and he could have shown by other evidence as well that the lands were thanadari lands; but this he has failed to do.
14. My conclusion then is that it has not been proved that the lands were thanadari lands, that it is extremely improbable that they were such lands and, on the other hand, it was extremely likely that they belonged to the second category of lands mentioned in Lord Kingsdown's judgment in Joykishen Mookerjee v. Collector of East Burdwan 10 M.T.A. 16 : 1 W.R.P.C. 26 : 1 Suth. P.C.J. 542 : 2 Sar. P.C.J. 54 : 19 E.R. 879. The District Judge, in my opinion, was right in thinking that the question is immaterial for in either case the zemindar had title to the lands as being included in the settlement and that by resumption and re settlement with the zemindar the right of the planitiff in the lands, if she had any under the lease, was not affected in any way. It is unnecessary to express any opinion on the question whether the resumption was valid or justified in view of the provisions of Act VI (B.C.) of 1870, that is to say, on the question whether the requirements of the definition of chowkidari chakran lands as given in that enactment have been satisfied so as to entitle the Collector to resume the lands. What I have said, I think, is sufficient to answer the second of the two questions which arise upon the contentions put forward on behalf of the appellant.
15. As regards the other question, namely, what are the rights of the plaintiff under the lease granted to her predecessor by the zemindar, the terms of the lease must be first adverted to. The lease purports to effect a settlement of two entire mouzahs viz , Chaitanyapur and Rangmalia, the former consisting of 638 bighas 14 cottahs and the latter of 1184 bighas 7 cottahs of land, that is to say comprising a total area of 1823 bighas 1 cottahs of land at a mokarari jama of Rs. 25 per year. At the end of the lease there is the following clause: 'There are 82 bighas of paikan jaigir lands in the said Mouzah Chaitanyapur. You shall not interfere with the same but shall continue to realize the peshkush jama in respect of the same.' It has been argued that the zemindar had no right to those lands and that, therefore, the lessee was not given any rights therein, except the bare right to realize the peshkush. It has been contended that this peshkush was payable by the paiks to the Government and the lessee was merely to collect the same. I have already stated that I am unable to hold upon the terms of the Regulations and in view of the authorities to which I have referred that the zemindar had no right to the lands or that they had been excepted out of the settlement of the Pergunah withhim and that for that reason he could not confer any rights in the lands upon the plaintiffs predecessor. It is clear from the specification of the area and the boundaries in the lease that the entire Mouzah Chaitanyapur in which the lands are situate was leased out to the plaintiff's predecessor. At the time of the demise the lands were in the occupation of paiks or those who were supposed to answer to that name the object of the clause was that the lessee was required not to interfere with them in any way. The clause only provides for the protection of those people as they were entitled to enjoy the lands on discharging the duties which they were supposed to perform and on payment, of the peshkush rent which had been imposed on them. I hold, therefore, in agreement with the view taken by the two Courts below that the lands in suit were included in the demise.
16. These findings are, in my opinion, sufficient to entitle the plaintiff to the decree in the terms in which it has been passed by the Courts below. The question whether in consequence of the events that have happened the plaintiff is liable to bear a share of the extra burden that has been imposed on the zemindar, that is to say, the appellant before us, and if so what is the extent of that share is one which is foreign to the scope of the present suit, and has been rightly left open by the District Judge for determination in a suit properly framed for that purpose, which may be hereafter instituted by the zemindar if he is so advised.
17. The contention urged on behalf of the appellant, in my opinion, fails, and the appeal must accordingly be dismissed with costs.
William Ewart Greaves, J.
18. I agree.