Shiam Krishna Dar, Member
1. The only question for determination before the Board in these two appeals is whether the reaps, are the proprietors of 752 kanals, 11 raarlas of land in Khewat no. 1 & 119 kanals 15 marlas of land in Khewat No. 7/1 of village Sarsoah, Tehail Ramnagac in the province of Jammu.
2. The reaps, claim proprietary right under a grant dated Baieakh 1, 1949, made by Raja Ram Singh in favour of Wazir Mohar Singb, the ancestor of reaps. Alternatively they claim right under an order of His Highness dated Har 3, 1974 & under a decree of revenue Ct. dated Poh 23, 1986.
3. The applts. on the other hand urge that the grant of Baisabh 1, 1949, was ooly limited to the assignment of Govt. revenue & did not confer any proprietary rights on the resps. They further plead that they were the original founders & Malguzars of the village, Sarsoah who, foe generations, had been paying the Govt. revenue, at first in cash to His Highness & subsequently in kind to the resps. after that Govt. revenue was assigned to the resps. by the grant of Baisakh 1,1949, & as original Malguizars the aplts. are entitled to proprietary rights in the land.
4. The trial Ct. in both cases have found in favour of the aplts. & in one case the Dist. J. also affd. that finding in appeal. But the H. C. in a second appeal is one case & in a first appeal in another, has come to an opposite conclusion & it has, therefore, become neoegaary for the Board to examine the controversy afresh & to come to its own independent findings.
5. The early history of the village is not is dispute. It was founded & brought under cultivation by the applts' ancestors & they used to pay Govt. revenue direct to His Highness & this state of affairs continued upto the year 1949. As a result His Highness was recorded in village records as holding the proprietary interest in the village & the applts. or their ancestors were recorded as occupying the position of Malguzars.
6. Some time prior to 1949, this village was included in the Jagir of Raja Ramsingh who on Baisakh 1, 1949, granted a Patta to Wazir Mohar Singh, the ancestor of the reaps, relating to it. The terms & conditions upon which the Jagir was held by Raja Ramsingh or of the Patta in favour of Wazir Moharaingh are not before the Board, But in this litigation it has been assumed by all the Cts. that the grants made by Raj' Ramsingh to Moharsingh only gave to the grantee a right to collect the Govt. revenue & did not confer on him any proprietary right & it is not possible for the Board, at this stage, to read the grant in any other manner so as to confer any proprietary interest in favour of the reaps.
7. After the grant of 1949 came into existence the applts'. ancestors stopped the payment of Govt. revenue in cash & under an arrangement made with Wazir Mohar Singh they have been paying him & his successors a share of the produce of the land. The true nature of this arrangement is a matter of controversy between the parties. The resps. allege that the applts' ancestors wf re unable to pay Govt. revenue, they therefore, surrendered their rights as a Malguzar & agreed to hold the land as tenants under the resps. on payment of a share of the produce as rent. The applts. on the other hand repudiate any surrender of their rights & they assert that by agreement the payment of revenue from cash was changed into kind.
8. During the settlement, which was in operation in the year 1969, the revenue authorities investigated the nature of the applts. & the repps.' interest in the laud; & mainly relying upon the resps' version of the arrangement mentioned above Which, however, was not supported by any reliable evidence, they ordered on ASSUJ 11, 1969, by mutation No. 10 that the reaps.' name be recorded as Malguzars of the village. And in due course this mutation order was given effect to in village records & in accordance therewith the reaps. were shown as Milguzura of the village, & these entries continued till 1993 when by a subsequent mutation order, hereafter mentioned, the previous mutation order was CANcelled.
9. During the operation of the said settlement certain general orders of His Highness were also in force relating to Tehails of Ramnagar & Basooli by which it was provided that proprietary rights in these Tebails be recorded ordinarily in the name of his Highness but if any special case arose under a grant conveying proprietary rights to the granttee it should be submitted for the sanction of His Highness.
10. In pursuance of these orders, a case of Dewan Bishen Singh, in which the grant did not in express terms convey proprietary right to the grantee reached His Highness & was disposed of by him as a spacial case. The Revenue authorities, however, did not treat it as a special case & taking it as a prececent for other oases & in order to secure uniformity they submitted four other cases to His Highnees including the ona relating to village Sarosah now in dispute recommending the recording of proprietary rights in the name of the grantees.
11. On Har 3, 1974, His Highness accepting the recommendation made to him in the circumstances, mentioned above, passed the following order :
'The Revenue Minister, indicating the nature of these four cases to be alike & agreeing with the opinion of the settlement Comr. has in one report recommended for the entry of proprietary rights in the names of the jagirdars & maufidars. The matter has been coned. Although there is no specific mention of proprietary rights in the Sanad granting jagirs & maufis but, in view of the special circumstances on spot & the old practice, the recommendation of the Settlement Comr. & the Revenue Minister & agreed to by the Chief Minister are hereby sanctioned. The filed be returned lor compliance.'
12. On 10-1-1927, the applts. moved His-Highness to cancel the mutation no. 10 of 1969. Upon this motion an enquiry was ordered & by an order of the Revenue Minister dated 15th Baisakh, 1988, which was confirmed by the Cabinet, the mutation No. 10 was cancelled & by mutation order no. 53 dated 7th Har, 1993, the reaps ' name was expunged from village recorda as Malguzari of the village & the applta.' name was substituted in their place, & the reaps.' appln. in revn against the order of the Revenue Minister was dismissed by His High. ness' Commands dated 17-19-1931.
13. During this last enquiry it was found that the applts. had not agreed to surrender their Malguzari rights in favour of the reaps. & that the mutation order No. 10 of 1969 proceeded upon wrong assumption of facts, & was illegal & unjust & could not & did not confer any Malguzari right on the resps. which notwithstanding the order continued to subsist in favour of the applts.
14. The reaps, now contend that the order ofHia Highness, dated Har 3, 1974, by its own forceconferred upon the resps. proprietary interest inthe land in suit, irrespective of the validity andforce of the mutation order No. 10, dated 11thAssuj, 1969, & the subsequent revocation of themutation order no. 10 by mutation order No. 53of 7th Har, 1993, cannot o per rite in law or in factas a revocation of the grant which had comeinto existence in favour of the reaps, by virtue ofthe order dated Har 3, 1974.
15. The resps. argue that on the date when the said order was made the proprietary interest of the village in dispute was vested in His Highness, & it was open to His Highness to divest himself of his proprietary interest in favour of any person at his pleasure. The original grant in favour of the resp. might not have conferred any proprietary right but it was open to His Highness to interpret it as conveying proprietary rights. And it was further open to him to direct that His Highness' name might not ba recorded as proprietor & the name of resps. be substituted in its place. The interpretation put by His Highness upon the grant may or may not be binding but the direction given by His Highness as to removal of his name as proprietor & substitution of the name of resps. in its place operates as a Crown grant & confers an absolute & indefsaaible title on the resps. which cannot be challenged in any Court.
16. In ordec to interpret the order of His Highnees, dated, Har 3, 1974, the surrounding circumstances & the intention of His Highnese have to be taken into consideration. His Highness was not considering at that time the question of any fresh grant. He was dealing with four cases in which previous grants had been made & had been in existence for a long number of yeara & their terms were interpreted by revenue authorities & were submitted for hia consideration with their recommendation. In accepting the recommendation of the revenue authorities, he was giving his approval to their act as the highest revenue authority in the land but he was not exercising in any manner his sovereign powers to make a fresh, grant in favour of his subject which had not existed before or to surrender the Crown rights by a fresh grant which had not been alienated previously.
17. The reaponsibilty of interpreting the terms of a grant ultimately rests upon the civil Ct. & it is not possible to regard His Highness in interpreting the terms of grant as exercising the jurisdiction on a civil Ct. The responsibility of making a Crown grant rests upon the Govt. or upon His Highness in exercise of his governmental function. And it is not within the province of Revenue & Settlement authorities to make Grown grants, or to dispose of Crown rights & privileges in land. The Revenue & Settlement authorities in making the recommendation to His Highness were only exercising the jurisdiction of maintaining correct Revenue records. According to Revenue records existing at the time of making the recommendation, His Highness was not receiving any revenue or Govt. dues from the land in dispute which the resps. were receiving in fact. In order to make these recjrds correspond with facts existing at the time, the Revenue & Settlement authorities were of opinion that the proprietary interest in the land could not be shown in the name of His Highness but could more properly be shown in the name of the resps. In the interest of a correct record which may correspond with actual facts existing at the time, the recommendation was made by Revenue & Settlement authorities & was assented to by His Highness.
18. The entry of proprietary interest in Revenue records is good enough for revenue purposes but it is not sufficient by its own force to create or extinguish proprietary rights in persons affected by the entry. And the order of removal of a man's name from proprietary column of revenue records oven when accompanied by a conseuting statement does not divest him of his proprietary interest in the land unless it is possible to found a valid grant upon the consenting statement. In the three reasons given by His Highness for removal of his name & substitution of resp.'s came in proprietary columns of Revenue record, there are no words of express grant & it is not possible to infex from them an implied grant because there was no intention to make one.
19. No doubt His Highness the Ruler is vested with a sovereign jurisdiction in all matters relating to the State but it id open to him to separate his jurisdiction in several matters & to exercise it separately. And it is a question of a fact in each case what particular jurisdiction he is exercising. In making the order of Har 3, 1974, His Highness was only exercising the jurisdiction of the highest Revenue & Settlement; authority & it is not possible to read this order in form or in substance as a Crown grant of proprietary interest in land in favour of the respondents.
20. It was contended before the Board that the Settlement authorities, during the operation of the settlement, are vested with large powers including the powers of civil Cts. in certain class of cases & any order made by settlement authorities, in exercise of these powers, operates as the decree of a competent Ct. It was further argued that as the determination of the Govt. revenue of the land is one of the objects of the settlement, the determination of the proprietary interest of the Govt. in the land alao falls within the jurisdiction of Settlement authorities. And if an enquiry is made by Settlement authorities in this matter, their decision operates as a decree which would confer or extinguish the proprie.taty rights. Assuming these contentions to be correct, the problem still remains whether the enquiry made by the Settlement authorities, which resulted in the order of His Highness, was a judicial enquiry by which proprietary interest of the Govt. was determined or it was only administrative enquiry in exercise of the jurisdiction of maintaining correct records. And in the opinion of the Board, the sounder interpretation of the proceeding is that the order in question was not a decree of the settlement Ct.
21. During the operation of Mutation O. No. 10, dated Assuj 11, 1969, the resps. instituted a suit for recovery of rent 'against some of the applts. & obtained a decree dated Poh, 20, 1986, from the Ct. of the Wazir Wazarat, Udhampuc. In this also the applts. had contested their liability to pay rent & had pleaded that they were Malguzars liable to pay only revenue & the demand for rent made from them was in the nature of a demand for revenue but these contentions were overruled. The resps. now contend that this decree confers upon them proprietary rights by the rule of res judicata & the applta. oa the other hand maintain that the decree was without jurisdiction as the revenue Ct. had no jurisdiction to decide the question of proprietary title which had been raised & the decree only affected a portion of the land in suit & some of the applts. only. The Revenue Ct. was not competent to decide the present suit & it is not possible to treat its decree as a decree of a Ct. of competent jurisdiction or as a decree inter partes, in regard to all the applts.
22. The result is that the resps. cannot be held to have acquired proprietary rights either by the grant of Raja Ram Singh, dated Baisagh 1, 1949 or by the order of His Highness dated Har 3, 1974, or by the revenue Ct. decree of Poh 20, 1986, & the mutation Order 63 of 7th Har, 1993, cannot be successfully challenged & must stand.
23. The Board will, therefore, humbly advise His Highness that both these appeals be allowed & that the judgments & decrees of the H. C. be set aside & that of the trial Cts. & of the first Ct. of appeal be restored. But in the circumstances of the case, the parties will bear their own costs in all the Cts.