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Sri Raja Kirtibash Bhupati Hari Chandan Mahapatra Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
Decided On
Reported in9Ind.Cas.688
AppellantSri Raja Kirtibash Bhupati Hari Chandan Mahapatra
RespondentThe Secretary of State for India in Council
Cases ReferredSurannanna Devappa Hegde v. The Secretary of State
chawkidari act (vi b.c. of 1870) - what land subject to act--zemindari of killah sukindah-chawkidari act, if can be extended to the zemindari--limitation act (xv of 1877), schedule ii, article 14--setting aside order without jurisdiction. - woodroffe, j.1. the plaintiff is the raja of sukinda, the owner of a considerable tract of land in district cuttack, bounded on the north and the west by the tributary mehals, the defendant, the secretary of state, has recently sought to introduce into a portion of the plaintiff's lands the provisions of the chowkidari act (vi of 1870, b.c.). the plaintiff contends that the act cannot be applied in his estate and if it can the proceedings taken do not justify the order of transfer which the collector has purported to make under section 48 of that act. his suit, therefore, seeks a declaration that the lands purported to be so transferred are not chowkidari chakran lands within the meaning of the act; that the collector has no power to transfer the lands or to assess the same; that all.....

Woodroffe, J.

1. The plaintiff is the Raja of Sukinda, the owner of a considerable tract of land in District Cuttack, bounded on the north and the west by the Tributary Mehals, The defendant, the Secretary of State, has recently sought to introduce into a portion of the plaintiff's lands the provisions of the Chowkidari Act (VI of 1870, B.C.). The plaintiff contends that the Act cannot be applied in his estate and if it can the proceedings taken do not justify the order of transfer which the Collector has purported to make under Section 48 of that Act. His suit, therefore, seeks a declaration that the lands purported to be so transferred are not chowkidari chakran lands within the meaning of the Act; that the Collector has no power to transfer the lands or to assess the same; that all proceedings taken by him in this connection are illegal; as also an injunction restraining the defendant from interfering with the plaintiff's land and for other relief.

2. The facts relating to the first head of argument are as follows: In 1765, the Dewany of Bengal, Behar and Orissa was granted to the Bast India Company. Orissa, then, meant the District of Midnapore only. Other portions were at that time under Mahratta Rule. In Bengal temporary Settlements were made until 18th September 1789, the date of the Decennial Settlement. On 25th November a similar Settlement was made as regards Behar and on 10th February 1793, as regards Orissa which then, as I have stated, meant Midnapore. Under Regulation I of 1793, passed on the 1st May 1793, the Decennial Settlement was made permanent. On 14th October 1803, the track of country south of the Suvarnarekha river, which was Orissa proper, came under military occupation of the British. Colonel Harcourt took possession and he and a Civil Officer, Mr. Melville, were appointed Joint-Commissioners to settle affairs in the country thus taken from the Mahrattas. On the 22nd November of the same year engagements called kaulnamahs were entered into between these Commissioners and certain Feudatory Rajas. The plaintiff alleges that he was one of these. But this is denied in so far as the giving of a kaulnamah is concerned. The form of these kaulnamahs which were given to some 23 Rajas was as follows: The Commissioners grant and sign a kaulnamah in favour of the Raja fixing the annual pesh-kush payable by the Raja and engaging that no further demand should be made (see Exhibit 10). This pesh-kush is the name given to the quit-rent imposed by the Mahrattas on the Khandaits or feudal chieftains who inhabited the Western mountains and Eastern marshes, called the Western and Eastern Rajwara respectively, which bounded the central cultivated strip conquered by the Moghuls in 1580, and, therefore, called the Moghul-bundy. ON 17th December 1803, the treaty of Deogaun was made between the East India Company and the Mahratta Maharajah Raghoji Bhonslay. Under that treaty a cession of territory was made to the Company. The plaintiff's case on this is that that cession excluded territory which had already been dealt with by the Commissioners on 22nd November 1803, and, therefore, according to him, excluded the lands of Sukinda in respect of which a kaulnamah or acknowledgment in the nature of a treaty engagement is alleged to have been given.

3. The position taken by the plaintiffs is that in so far as these Rajas were concerned their rights and liabilities in connection with their estates must be determined on the basis of grants then made and subsequently recognised by Legislation and that the nature of the grant prohibits the application to his estate of the provisions of the Chowkidari Act, which is also by its terms inapplicable to such estate. It has, however not been questioned that as stated in Mr.D.J. McNeel's report of 1866 on the village watch of the lower provinces of Bengal, that through the rights of powerful Khandaits or feudal chieftains to hold their estates at a fixed quit-rent in a semi-independent condition was recognised by the Government, eleven chieftains including the Raja of Sukinda were brought within the Moghul-bundy. The result of this is that Sukinda is not in any way independent bat a part of British territory and subject in full to the British Government. It is, however, contended as I have stated, that its position in such territory is peculiar in this respect that subsequent legislation cannot affect that estate if such legislation is in fact excluded by the terms of the alleged kaulnamah by virtue of which it is said to be held. To cite the words of the plaintiff's memorial to the Government of Bengal of 30th April, 1907, 'No legislation could be done before the date of the treaty of Deogaun. So, while the Regulations of the Bengal Code affect the whole of Orissa they could not override the terms of the treaty engagements made prior to the treaty of Deogaun. Accordingly, legislative sanction was given to the treaty engagements made with the proprietor of Sukinda by enacting Section 23 of Regulation XII of 1805. This exempted the Sukinda Estate from the operation of the other portions of that Regulation which lay down the procedure to be followed in making the Revenue Settlement of Orissa.' It was further contended that 'that Regulation related only to that portion of Orissa which had been ceded by the Mahrattas to the East India Company in full sovereignty and' not to those portions in respect whereof treaty engagement had been made.'

4. The Regulation referred to was one for the settlement and collection of Revenue in Cuttack and which confirming the declarations made by the Commissioners to the zemindars, extended the Regulations in force in Bengal with certain modifications and exemptions to Cuttack. Section 33 of the Regulation states that the Commissioners had granted sanads (not kaulnamahs) to certain zemindars, viz., the zemindars of Dhurpura and Muddapore and to the plaintiff entitling them to hold their estates at a fixed jama in perpetuity and confirmed those sanads. Therefore, the revenue payable by the plaintiff cannot be altered in 1870 the Bengal Chowkidari Act was passed. In 1897 the Government determined to extend the operation of the Act to such parts of Orissa to which it might be applicable. On 25th May 1899 a notification was made extending the Act. Proceedings were commenced by the Collector in respect of part of the plaintiff's property and on the 29th November 1902 the Collector made the order complained of transferring 126 mans, 13 gunts and 4 biswas of land and assessing Rs. 119-3-2-1/2 pies as the assessment payable.

5. Learned Counsel who appears for the appellant states that his client has no objection to contribute to the support of the Police and has in fact offered to pay Rs. 125 for that purpose, nor does he argue that the Legislature cannot make him liable to pay a tax for such purpose, but he contends that his lands cannot be touched and that no transfer can be made under the provisions of the Chowkidari Act of any portion of his estate.

6. The first matter to be determined is whether he holds under the kaulnamah he sets up. This is denied. No kaulnamah has been produced as the original is said to have been destroyed by fire. The lower Court has not accepted this explanation. The story which has been told of its production at the time of a boundary dispute between Sukinda and Keunjhor is improbable as it would throw no light whatever on any question which could then have been raised. I see no reason to differ from the lower Court's estimate of the evidence on this point. It is, however, stated in the first three Editions of Aitchison's Treaties (1st Edition, pages 191, 292, 2nd Edition, page 114, 3rd Edition, pages 126, 127) that a kaulnamah similar to that granted to the Raja of Kanika was given to the Raja of Sukinda. The' Collector's register states the same. In the last Edition (page 316) of Aitchison it is stated that Tcaulnamohs were granted to certain named Rajas (not including Sukinda)' and to fen others unnamed. The Circum stance that the earlier Editions of Aitchison and the Collector's register state that a kaulnamah was given to the Raja of Sukinda is at first sight a strong piece of evidence in favour of the plaintiff bat the game evidence which establishes this, discloses circumstances which negative the actual grant of such a kaulnamah. The attested copy of the list of Rajas produced from the Collectorate shows the documents executed and correspondence passed. It is a singular circumstance that whilst details of the documents are given in respect of all the other Rajas (except Mourbhanj who was dealt with separately) there is no mention of any document having been executed in the case of the Raja of Sukinda. Nextly, Section 33 of Regulation XII of 1805 is very strong evidence against the plaintiff. That section recites that a sanad had been granted to the Raja of Sukinda and two others This is the case. But, admittedly, the two other Rajas who are placed in the same position as the plaintiff received no kaulnamah. Farther, there is no reason why a sanad should have been given if the plaintiff's predecessor had received a kaulnamah. The style of the two documents is quite different. The kaulnamah is in the nature of a treaty engagement. The sanad is in terms which obviously suggest a lower status on the grantee than was possessed by the recipient of the kaulnamahs.

7. Mr. Maddox in his report on the Survey and settlement of Orissa states that the position occupied by this Raja and those of Darpan Madhupur was inferior to that of the Sea Coast Rajas and the fact that, as has been pointed out, Section 33 of Regulation XII of 1805 confirms the sanad granted to the Rajas of Darpan, Sukinda and Madhupur while Section 35 confirms the settlements concluded with Aul, Aujang and others and adds that one shall also be concluded with Kanika and Khurda which are of a similar description shows that the three first-named estates were considered to be on a different footing from the others. It has been sought to meet this point by referring to a sanad which was granted to the Raja of Kanika who admittedly had a kaulnamah. But there is nothing in this. For, as appears from the sanad itself it was given in respect of a different property from that in respect of which the kaulnamah was given. These two properties which were differently situated, were held on different terms. It is true that Exhibit No. 7, the letter of the Commissioner of 3rd June 1905, states that copies are available of kaulnamahs, but it is obvious that what is meant is that copies had been found of one or other kaulnamah and that, as it was stated that a copy in similar terms; had been given to the Sukinda Raja, a copy of such kaulnamah was in this sense available. Further, the letter of the Commissioner shows that his opinion was that the name of Sukinda was either added by mistake to the copy kept in his office of another kaulnamah referred to by Aitchison or that the status of the zemindar was subsequently discovered to be inferior to the other zemindars whose kaulnamahs were confirmed and, therefore, his kaulnamah was not confirmed but a document of a different nature, viz., a sanad similar to those given to Darpan and Madhupur was eventually given to him. The Subordinate Judge has found that the plaintiff's ancestor never obtained any such kaulnamah as he alleges and I agree with such finding.

8. It is then argued that even if there was no kaulnamah the plaintiff's lands could not be resumed and transferred. For it is contended, firstly, that Section 33 of Regulation XII of 1805 exempted him from the operation of this Regulation; secondly, if the plaintiff is affected by the Regulation generally, Chowkidari Act is inapplicable for Section 33 prevents any enhancement of the jama; thirdly, the defendant must show that the engagement which was made with the plaintiff was made under the same conditions as governed the Permanent Settlement in Bengal where, though chowkidari chakran lands were made liable for the revenue of the whole estate of which they formed part, they were not themselves assessed with revenue; and, fourthly, that there are no chowkidari chakran lands on the plaintiff's estate within the definition of Act VI of 1870 and, therefore, that Act is inapplicable to the plaintiff's estate. As regards the first point, it is clear that Regulation XII of 1805 applies to Sukinda subject to the special provisions contained in Section 33 of that Regulation. The second argument assumes that in substance if not in form the jama has been increased. If there were chowkidari chakran lands on this estate, as that term is defined in the Act, and such lands had been excluded in settling the revenue, then it could not be properly said that operations under the Act had the effect of altering the jama and so contravening Section 33, Regulation XII of 1805. For, in such a case, ex hypothesi the chakran land was never assessed with revenue though it was liable to be sold for non-payment of the revenue of the whole estate which it formed part, and the zemindar while contributing to the punchayti fund a sum for the maintenance of the police duties performed by the original tenant would have received the land and half the assessed rent as compensation for the loss of the personal services rendered by the former tenant. In such a case it could no more be said that the jama had been increased than it could be said of the Bengal estates where the Chowkidari Act is in force. But it has been thirdly argued that at the date of the plaintiff's settlement no chowkidari chakran lands were taken into account and excluded from consideration in the assessment of revenue.

9. Under Section 41, Regulation VIII of 1793 chakran lands were declared not meant to be included in the exception contained in Section 36. The whole of these lands were annexed to the malguzari lands and declared responsible for the public revenue assessed on the zemindaries in which they were included. These chakran lands were, however, not assessed with revenue and Were not taken into account in assessing the revenue on the estate of which they formed a part. That being so, the introduction of the Chowkidari Chakran Act did not, as regards lands so settled, affect in any way the terms of the original settlement. This is not, however, the case here. Prior to the sanad, granted by the British Government the plaintiff held his estate under the Mahrattas at a fixed rent. There was no settlement of the estate by that Government which confirmed by Section 33, Regulation XII of 1805, the sanads granted by the British Commissioners which themselves confirmed the terms on which the estate was held under the Mahrattas. In any case, there is nothing to show that the chowkidari chakran lands were excluded from assessment when the estate was settled or confirmed by the British Commissioners. The plaintiff paid a fixed sum for the whole estate including the chowkidari chakran lands if there were any. And so we find Mr. McNeel stating in his report on the village watch (page 62) chowkidari jagirs exist in the dependent pesh-kush mehals but they have never been measured or recorded. The Government has probably no right to resume them, as their value was certainly in no way taken into account in fixing the quit-rents of the mehals.' Now, when we consider the definition given in the Act of chowkidari chakran lands, it appears to me to be clear that such chowkidari jagirs, if there be any, do not come within the definition of Act VI of 1870. That Act, in Section 1, defines the words 'chowkidari chakran lands' to mean lands which may have been assigned, otherwise than under a temporary settlement, for the maintenance of the officer who may have been bound to keep watch in any village and report crime to the police, and in respect to which such officer may be, at the time of the passing of the Act, liable to render service to a zemindar. It has been argued for the respondent that it does not matter when or by whom such lands may have been assigned; whether at the date of the original settlement or the day before the putting into operation, in the particular case, of Act VI of 1870 or whether by the State or the zemindar. This contention is, in my opinion, clearly unsound. The words 'otherwise than under a temporary settlement' obviously refer to a settlement by the Government and the party who is pointed to as assigning the land is also the Government, such assignment taking place at the date of the settlement. I am of opinion that the chowkidari chakran land which is subject to the operation of the Act is land Assigned by Government at the date of settlement (such settlement not being a temporary one) and which has, therefore, been taken into account though excluded from assessment in the settlement of the land revenue assessed on the whole estate of which it forms part. And this view is consistent with the terms of the Regulations dealing with the settlement of revenue. For it is only by virtue of the reservation or exclusion of such lands in computing the revenue payable on a permanently settled estate that they become properly liable to subsequent resumption and assessment under the provisions of the Chowkidari Act, In the present case, even assuming that the grant of the sanad was a settlement by the British Government as distinguished from a mere confirmation of a previous settlement under the Mahrattas, such settlement did not assign and did not exclude from assessment the chowkidari chakran lands if any and if there be any such land they are not lands of the character which come under the operation of Act VI of 1870, B.C., and cannot be resumed, transferred and assessed. I may here further point out that a large number of chowkidari lands are without doubt of quite recent creation owing apparently to the opening out of jungle lands.

10. I hold, therefore, that the Government had no power to proceed under the Chowkidari Chakran Act in respect of the land in suit. It has been contended that the lands in suit are not chowkidari chakran lands within the meaning of the Act, because (1) such lands mean those which were included, as in Bengal at the time of settlement, in the malguzari land of the zemindar and which, though liable to be sold as part of the estate for default of payment of Government revenue, were not assessed with any revenue; (2) such lands mean lands which have always been held by chowkidars and not lands which have from time to time been changed or resumed, and (3) the holders of such lands must have done dual service both as watchmen performing police duty and as servants of the zemindar. I have dealt with the first point. It is unnecessary in this view of the case to deal with the points raised on the evidence that these lands did not come within the definition because the holders were private servants of the Raja and performed no police duty and because, as is alleged, the lands were changed and resumed at will by the Raja who created the jagirs and appointed chowkidars. I desire, however, to point out that it is for the respondent to establish that he is entitled to interfere with the estate of the appellant. No Commission was issued under the Chowkidari Act. But some inquiries are said to have been made by the village punchayets. Their inquiries are not evidence. If there is no Commission, then, if the action of the Collector is questioned it is for the respondent to give evidence in the cause that the lands he seeks to deal with are chowkidari chakran lands within the meaning of the Act. He has not supplied evidence of this but has sought to rely on certain alleged admissions made by the Raja in answer to certain requisitions made by the Collector which, so far as I have been able to ascertain, were not authorised by any provision of law. But, if reliance is placed on these alleged admissions, they must be accepted as a whole, that is with the statement of the appellant that they were not (for the reason specified and by reason of the inclusion of raiyati holdings) chowkidari chakran lands within the meaning of the Act. Further, the total quantity of the jagir lands shown on the plaintiff's list on which the respondent relies differs from that of the lands assessed and transferred by the Collector.

11. It was for the defendant to show that he was entitled to resume and assess the plaintiff's land and this he has failed to show.

12. It has, however, been contended on behalf of the respondent, that none of the objections to which I have referred can be relied on, as the suit is barred, under Article 14 of the Limitation Act. That Article does not apply where the order in question has been passed without jurisdiction as is the case here. For, if the land was not chowkidari chakran land within the meaning of the Act VI of 1870 the Collector had no more right to resume and assess such land than he would have in the case of any other portion of the estate of the plaintiff. But even if the case were one not of jurisdiction I should have felt a difficulty in acceding to the argument that the suit was barred having regard to the case law which appears to establish that the Article refers to orders and proceedings of a public functionary to which by law is given a particular effect in favour of one person or against another subject, in the regular course, to a further judicial proceeding having for its object to quash them or set them aside Thivaji Yesji v. Collector of Ratnagiri 11 B. 429 and cases following this decision.

13. The result, therefore, is that the judgment and decree of the lower Court are reversed and the appeal and suit decreed in the terms of the first three prayers of the plaint. Further, the plaintiff's possession of the lands in suit as against the defendant is confirmed. The plaintiff is entitled to his costs of suit and of this appeal.

Caspersz, J.

14. The substantial question to be answered in this appeal is--Are the lands of the plaintiff-appellant before this Court, chowkidari chakran lands within the meaning of Section 1 of Bengal Act VI of 1870? Such lands are 'lands which may have been assigned, otherwise than under a temporary settlement for the maintenance of the officer who may have been bound to keep watch in any village and report crime to the police, and in respect to which such officer may be at the time of the passing of this Act liable to render service to a zemindar,' The plaintiff is the zemindar of the lands in suit. They have been transferred to him, by the Collector of Cuttack, in accordance, or in apparent accordance, with the provisions of Part II of the Act. The validity of this transfer is challenged by the plaintiff who in the suit giving rise to this appeal, sought to have it declared that, by reason of his special title, the lands in question were wrongly dealt with and assessed as chowkidari chakran lands.

15. The plaintiff is the zemindar of Killah Sukinda and is entitled to hold that estate at a fixed jama in perpetuity, his sanad to that effect having been confirmed by Section 33 of Regulation XII of 1805. He relies on that sanad which, however, he, calls a kaulnamah, and, in the alternative, on the confirmatory 33rd Section of the Regulation and he asserts that his jama cannot be increased by the addition of the sum, Rs. 119-3-2 1/2, assessed by the Collector on the lands in suit.

16. The Subordinate Judge has dismissed the suit. The arguments in appeal have travelled over the ground indicated by the subjects have mentioned, which I shall discuss in their order.

17. The conquest of Orissa in the year 1803 is matter of history. Killah Sukinda is one of the hill mahels lying between the Tributary States on the west and the level country, known as the Moghul-bundy on the east. The entire country, including Killah Sukinda, came under the administration of the East India Company, as appears from Regulation IV of 1804, with effect from the 14th October 1803, though the Treaty of Deogaun with the Mahrattas was not signed till the 17th December of that year. For the plaintiff, reliance is placed on the kaulnamah, dated the 22nd November 1803, granted by the Board of Commissioners, to the Raja of another Killah on the sea-coast, called Kanika, and on an identical kaulnamah, tearing the same date, granted to the Raja of Killah Narsingpore. Subjoined to these two instruments are some office notes to the effect that similar' acknowledgments were given to certain other Rajas and zemindars, among them being the Raja of Killah Sukinda. Such office notes cannot bind the Government; see Collector of Masulipatam v. Cavaly Vencata Narainapah 8 M.I.A.529 : 2 W.R. 61. Moreover, the list of Rajas appended to the ekrarnamah of the same date executed by the Raja of Kanika, though it mentions the Raja of Sukinda, at the very end of the list, does not give the details of the documents executed, and correspondence passing, as was done in the case of the other Rajas. I am, therefore, of opinion that no kaulnamah was ever granted to Sukinda and no ekrarnamah was taken from the Raja of that Killah. The oral evidence as to the loss of the plaintiff's kaulnamah is vague and unsatisfactory; the fact is clear that his ancestor had a sanad only, and that the Kanika sanad related to the zemindaries (outside that Killah) which were not included within that political unit. Sukinda was never a Tributary State; it is in the Regulation District of Cuttack; see, In the matter of Bichitranund Dass v. Bhugbut Perai 16 C. 667. The plaintiff's assertion of a special title, based on the office notes I have mentioned, is untenable. The arguments on this part of the case have absorbed much time and to very little purpose.

18. But the plaintiff's position as a permanent zemindar, in virtue of his sanad and kabuliyat dated the 25th January, 1804 confirmed by Section 33 of the Regulation (XII of 1805), is as strong as if he had been granted a kaulnamah, that is to say, for the purpose of showing that his jama was fixed in perpetuity. Sukinda was one of the three mahels specifically dealt with in Section 33; and by Section 36 of the Regulation. 'All Regulations relating directly or indirectly to the settlement and collection of the public the Province of Bengal, which are not superseded by the foregoing rules, are hereby extended to the Zillah of Cuttack.' Learned Counsel has invited our attention by way of analogy to the reservation contained in Section 8, Clause 4, of Regulation I of 1793, which says that the jama declared permanent was exclusive of, and unconnected with, the lands or allowances for keeping up thannas or police establishments. The lands in suit are not thanadari lands, but it does not follow that because thanadari lands in Bengal were reserved in the year 1793 far later resumption and assessment., lands, not thanadari, were not reserved in Orissa in the year 1805. Then, Section 41 of Regulation VIII of 1793 has been cited. It enacted: The chakran lands or lands held by public officers and private servants in lieu of wages are also not meant to be included in the exception contained in Section 36. The whole of these lands in each province are to be annexed to the malguzari lands, and declared responsible for the public revenue assessed on the zemindaries, independent taluks or other estates, in which they are included, in common with all other malguzari lands therein.' This means that all such lands, though chakran in character, were not to be deemed lakheraj lands which were excluded from settlement.

19. It was observed by the Privy Council in Joykishen Mookerjee v. The Collector of East Burdwan 10 M.I.A. 16 : 1 W.R. 26 'cases of this description must, as it seems to us, depend mainly, if not wholly, for their decision upon the question, what was the tenure or character of the lands at the time of the Decennial Settlement, and how they were dealt with in that settlement.'

20. But, assuming that the lands in suit were chowkidari chakran lands in the year 1805, I do not think they are protected by Section 41 of Regulation VIII of 1793. Such lands would pass with the estate on a sale of the zemindari, but, they could not have been assessed with land revenue, because no detailed assessment was then made of the lands of Killah Sukinda, and the Legislature can, as by Bengal Act VI of 1870, impose a separate demand which is no part of the permanent jama fixed in respect of the Killah. It is conceded that the plaintiff is paying Road and Public Works Cesses in addition to his permanent jama.

21. The next contention of learned Counsel is that the procedure followed by the Collector in transferring the lands in suit to the plaintiff did not conform to the requirements of the Act. Section 49 provides that 'all chowkidari chakran lands shall be transferred in manner and the subject as hereinafter mentioned to the zemindar of the estate or tenure within which may be situate such lands.' The following sections deal with the assessment of such lands, before they are transferred, and it is clear that the village punchayet must conduct the necessary inquiries the result of which may be contested by the zemindar before, and not after, the assessment has been approved by the Collector, who, after according his approval, embodies his order transferring his land in the form given in Schedule C annexed to the Act. That Schedule contemplates a precise specification of the lands by boundaries and area, together with a covenant that the zemindar shall hold the same subject to a certain annual assessment payable to the chowkidari fund of the village. Ordinarily, there should be a transferring order for each village because each village (or group of villages) must have separate punchayet and a separate fund. The neglect of this plain provision of the law has led to some complications in this part of the case.

22. It appears that the punchayets of the village comprised within the estate of the plaintiff made their inquiries and assessed the lands after the introduction of the Act, which event took place on the 25th May 1899. Previously, the police had been maintaining a register of appointment of chowkidars, and a revised register was commenced from the 22nd March 1900. It is obvious that the chowkidars so registered must have been remunerated for their services by the enjoyment of chakran lands of some kind. The plaintiff also maintained a register of chowkidari and other jagirs, called Deshata Jagir Register from and even before, the year 1878, and we find that in 1885 the Manager of the Sukinda Estate then under attachment, passed various orders on the petitions of certain chowkidars. In the same year, some chowkidari-jagir lands were surveyed by the estate officers: this was in supersession of former surveys. Similarly, the dual control is evidenced by the register of village chowkidars kept up by the police under Regulation XX of 1817, which indicates that chowkidars were under police supervision in the year 1889.

23. Such was the position when the punchayets assessed the chowkidari chakran lands and, as appears from the papers, revised their jamabandi. Time was granted, on several occasions, to the plaintiff to put in his objections to the jamabandi, more especially, to the alleged inclusion of raiyati lands within the jagir areas. Ultimately, the plaintiff's am mukhtar preferred detailed objections in respect of 24 villages, on the 30th September 1901, the list being headed: 'Memo., Schedule of lands given as jagir, to the chowkidars of Killah Sukinda by the former Raja and land found to be in excess according to the measurement of the Tax Punchyets, and mouzahs in which there were no jaigr lands originally but now the punchyets have measured such lands in them.' On this some action seems to have been taken, for, on the 17th March. 1902, the plaintiff secured an adjournment in order to file his objections to the revised jamabandi. On the next date, the 7th April 1902, the plaintiff preferred a petition in which he, for the first time, set up his title under the 'kaul kararnama,' and prayed for the stay of the assessment proceedings pending disposal of his appeal to Government regarding his title. He also mentioned that excess lands, amounting to 9 mans, 17 gunts, 11 biswas, had been wrongly included among the chowkidari jagirs. Proceedings, however, went on. On the 28th June 1902, the kanungo's report was put up to the Collector, and it appears that the kanungo, having examined the papers of the plaintiff's office, accepted the jamabandi made by the plaintiff (with a slight modification) and the assessment (based on that jamabandi) amounting to Rs. 238-6-5 a moiety of which was payable by the zemindar. An inquiry was then started as to the boundaries of the lands. On the 2nd November 1902, the boundaries having been supplied, the Collector approved the assessment and directed that form C be issued. The date of the transferring order is the 28th November 1902, and it says: 'The boundaries of the said lands are set forth in the Schedule herein under and the quantity is 126 mans, 13 gunts 4 biswas.

24. This area (126 mans odd) exceeds the area, 122 man, 3 gunts, 2 biswas, specified in the paper called jamabandi bhian of chowkidars,' signed by the plaintiff's am-mukhtars for the year 1309 which corresponds with 1902. But the difference in the areas, namely, 4 mans, 10 gunts, 2 biswas or (say) four acres, is explained on a comparison of the five circle areas and the quantities of land formerly allotted to each chowkidar. Thus in the case of circle No. 1 plaintiff's paper shows eight chowkidars holding 23 mans, 21 gunts, 9 biswas and the Collector's nine chowkidars holding 26 mans, 21 gunts, 9 biswas the difference (3 mans) being due to inclusion of land held by dismissed chowkidar, Govinda Baliar Singh.

25. It be may presumed that the figures in plaintiff's jamabandi bhian were examined by the Kanungo and that the Collector, acting under Section 50, 'revised and approved' the report which was based on the figures supplied by the punchayets. The fact remains that the land, 126 mans odd of the annexures to the form C are the same as those mentioned in the schedule to the plaint. These are the lands of which the plaintiff has taken possession and over which he asserts his paramount title. There does not, therefore, seem to be any doubt as to the situation and identity of the lands. The suit is to obtain a decree in respect of these same lands which ex hypothesi are those included in the Collector's transferring order. The irregularity involved in proceeding according to the circle unit with the chowkidars as sub-units, instead of the village unit, is not fatal. It has, moreover, been condoned by the plaintiff both before and after the date of the transferring order.

26. I resume the history of the case from the 28th November 1902. The plaintiff adhered to his objection with regard to the chowkidari chakran lands. He ejected the chowkidars, refused to pay the assessment on their jagirs: prayed for stay of the sale about to be held under Section 55 of the Act: memorialised Government and the Lieutenant-Governor; and, finally, deposited the money demanded under protest.' But, although the plaintiff's conduct throughout shows that the real dispute related to the other questions of title and principle, there was still some uncertainty with regard to the survey plot numbers of the jagirs: these details were required for the purely clerical process of filling up the various columns of the Collectorate registers. To this end a parwana (order) was issued to the plaintiff on the 3rd November 1905, and there is a report, dated the 11th January 1906, of the Deputy Collector on the subject. From this report it seems that some few jagirs remained to be located, but this was a matter raised by the Collectorate officers and not by the plaintiff who, with his legal adviser, Mr. Das, relied on the kaulnamah to secure a total exemption from the assessment.

27. The legitimate conclusion, therefore, appears to be that, though the jagirs were dealt with en bloc and not mouzahwari, as intended by the Act, the procedure of the Collector was in substance correct and has misled no one: rather, the plaintiff accepts the transfer of the lands but asserts that they are not chowkidari chakran lands within the definition given in Section 1 of the Act.

28. I now come to what I regard the substantial question to be' answered in this case. Are the lands transferred to the plaintiff and taken possession of by him chowkidari chakran lands, that is, were they assigned otherwise than under (which, I take to be, in the course of) a temporary settlement, for the maintenance of village watchmen who may have been bound to keep watch in the village and report crime to the police, and in respect of which they may be at the time of the passing of the Act (the 19th October 1870) liable to render service to the plaintiff

29. There is no precise evidence directed to the position of the Sukinda chowkidars in the year 1870, but from what I have already observed, it admits of very little doubt that the plaintiff and the police all along exercised a dual control over the village watchmen. The semi-military paiks without service lands were gradually superseded by the chowkidars who enjoyed jagirs, and, I believe, that from the year 1879 the paiks had no connection with the police, as deposed to by witness, Kali Charan Prusti. It is evident, and the fact has not been controverted, that the plaintiff revised the jagirs and allotted lands to the new chowkidars required from time to time as the jungly parts of the Killah came under cultivation and new hamlets were established. The material portions of the evidence have been placed before us, and I am satisfied that the greater part of the lands in suit consisted of new jagirs, as to which there cannot possibly be any doubt that they were not assigned, that is, by the State, for the maintenance of the village watchmen in the year 1805. It is necessary to go back to that year because the plaintiff's Killah was permanently settled by Section 33 of Regulation XII of 1805, and no other settlement was, or could have been made, subsequently. It is conceivable that if a Commission had been appointed, under Sections 58-61 of the Chowkidari Act, the original jagirs might have been traced, but that obvious procedure was not adopted by the authorities. The result is that all the lands dealt with by the Collector must be deemed to be in one category and not to satisfy the definition of chowkidari chakrun lands. The presumption arising from the registration of the watchmen under Regulation XX of 1817 has been amply rebutted by the evidence on the side of the plaintiff. The watchmen registered by the police might still have been in the enjoyment of private chakran lands. There was no register of paiks: none was required under Regulation XX of 1817.

30. The real issue in this dispute has been obscured by the plaintiff's insistence on his superior position under the terms of his supposed kaulnamah, but on the substantial question whether the lands are chowkidari chakran or not I have no hesitation in finding in his favour.

31. The learned Vakils for the defendants have argued that the suit is barred by the one year rule of limitation in Article 14 of the second Schedule of Act XV of 1877. A suit to set aside any order of an officer of Government in his official capacity must be brought within one year of the date of the order. The order of the Collector transferring the chowkidari chakran lands to the plaintiff was passed on the 28th November 1902. The plaintiff's suit was instituted on the 9th May 1906, and it is barred if the rule be applicable. But the order in question was a mere nullity because it dealt with lands which were not chowkidari chakran lands. It was ultra vires, and did not require to be set aside. See Bijoy Chand Mahatab Bahadar v. Kristo Mohini Dasi 21 C. 646 followed in Narendra Lal Khan v. Jogi Hari 32 C, 1107 : 2 C.L.J. 107. In this view of the matter, it is unnecessary to consider what kind of orders ape contemplated by Article 14 and the case of Surannanna Devappa Hegde v. The Secretary of State for India 24 B. 435 but the inclination of my opinion is to regard an order as within that Article if it is any order of a Government officer passed with jurisdiction and communicated to the person affected.

32. For these reasons, I am of opinion that the decision of the Subordinate Judge cannot be sustained, and I agree that the plaintiff's suit and this appeal must be decreed with costs, in terms of the judgment of my learned brother.

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