Sir John Wallis:
In this, as in the case of Sir Charu Chandra Ghose v. Kumar Kamakhya Narain Singh (AIR 1931 PC 5.)in which judgment has just been delivered, the main issue is as to the correctness of an entry in the khewat or Record-of-Rights of the Ramgarh zamindari prepared under the provisions of the Chota Nagpur Tenancy Act, 1908. S. 84 (3) of that Act imposes on parties challenging such an entry the burden of proving by; evidence that it is incorrect.
The suit is brought on behalf of the minor Raja of Ramgarh for a declaration that the defendants have no right to the minerals in the villages hold by them and for an injunction and damages. The claim for damages has been withdrawn. The defendants denied that they derived title from the plaintiff or his predecessors-in-title, and alleged that the themselves were the owners of the villages and of the subjacent minerals.
In the khewat the defendants' tenure is entered as jagir held under the Rajah of Ramgarh resumable after the family of Fateh Singh, the supposed grantee, becomes extinct without any heirs being loft at an annual rent of Rs. 1,387-1-9, and cesses amounting, at the time of survey, to Rs. 2,112-6-0. If this entry is correct, the plaintiff must be regarded as the proprietor of the villages and the defendants as holding under him, and it is well settled that as between zemindar and jagirdar the zemindar must be regarded as the owner of the minerals.
It is, therefore, incumbent on the defendants to show that the entry is incorrect. Apart from the statutory presumption arising in this case, there is a general presumption that the land in a zemindari is the property of the zemindar, and held under him. In the two cases from this zemindari which have already come before the Board there was evidence that the defendant tenure-holders were the original proprietors of the suit villages, and it was not shown that they had come to be held from Ramgarh zemindars as jagirs. They were, therefore, held to have been correctly entered in the khewat as shamilat taluks, that is to say, taluks of which the talukdars were the proprietors though liable to pay the Government revenue to the zemindar of Ramgarh instead of directly to Government. In the present case the Subordinate Judge held that the defendants had established this and dismissed the plaintiff's suit; but the appellate Court were of a contrary opinion, and gave the plaintiff a decree. In their Lordships' opinion the defendants have wholly failed to prove their title and have no answer to the plaintiff's suit. The plaintiff and the defendants are members of the same family, and it is not questioned that, if the defendants were junior members of the family the natural inference would be that this was a khorposh or maintenance jagir granted to them by the head of the family. It is said however that the defendants are the senior branch of the family and that it ought to be inferred that they do not hold these villages under grant from the Ramgarh Raja, but merely pay him the Government revenues for an estate which their ancestors acquired by force of arms.
Their Lordships are unable to agree with this contention, and are of opinion that the fact that the defendants are descended from a senior branch of the family is insufficient to rebut the presumption that the lands which they hold in the zemindari are held from the zemindar as khorposh or maintenance grants.
It is common ground that the zemindari was acquired by Bagdeo Singh, the junior brother of Singdeo Singh, from whom the parties to this suit are descended.
The following genealogical table is taken from the Subordinate Judge's judgment :
The zamindari descended in the line of Bagdeo Singh to Mukund Singh, who was dispossessed by the East India Company in 1772, when Tej Singh, from whom the present zamindar is descended, was installed in his place. Tej Singh traced his descent from Ajab Singh, the junior brother of Kirat Singh, from whom the defendants are descended, and was selected because he had gone over from Mukund Singh, in whose service he had been, and joined forces with the company in driving him out. According to tradition the two brothers, Singdeo Singh and Bagdeo Singh, were Rajputs who came from another part of India and conquered Ramgarh, and it was only natural that, when the junior brother, Bagdeo Singh, acquired the zamindari he should have made provision for the descendants of his elder brother. The senior brother, Singdeo, or his descendants, might, of course, have acquired an independent zamindari of their own ; but there is no evidence that they did so, and the presumption arising from the inclusion of the defendants in the Ramgarh zemindari is that they did not.
Except as to the two villages of Dharguli and Chalkusa in the Rampur Pergana the defendants have really no case. As regards these two villages, it is said for the defendants that the annual rent of Rs. 1,387-1-9, shown in the khewat, arises out of the other villages belonging to the defendants, which are all in the Pergana Markacho, and that the entries in the khewat in which this sum appears as including the assessments on Dharguli and Chalkusa, are incorrect, as they are lakiraj or revenue-free properties which were acquired independently by the defendant's predecessors, and never formed part of the Ramgarh zamindari. The Subordinate Judge has taken this view, and has found that the defendants have proved by their Exs. F and B that these villages do not belong to the Ramgarh Raja, but are the revenue-free property of the defendants.
Assuming however in the defendants' favour, as there appears to be some reason for thinking, in accordance with the evidence, that the defendants are right in saying that the rent of Rs. 1,387-1-9 arises from the villages in the Markacho Pergana, and that the villages of Dharguli and Chalkusa in the Pergana of Rampur do not bear any assessment, still, Ex. F, the defendants' own exhibit, shows clearly that these two villages were formerly assessed to revenue as part of the Ramgarh zamindari. As is well known, the Mogul rulers were in the habit of keeping accounts of the actual as well as the khanil or standard jama of the villages as to which they had made temporary settlements of the revenue, and this system was continued by the East India Company. Ex. F, described as
"Settlement Register of Pergana Ramgarh from 1760 to 1790"
shows that these two villages were entered in the name of Maninath Singh, who was the Raja of Ramgarh in 1790, as proprietor. It shows also that these two villages had formerly been assessed to revenue in the time of Bishun Singh, the Raja who died in 1763, but that in the time of Raja Maninath Singh they were entered in the accounts without any jama being shown against them.This goes to show that prior to the time of Tej Singh, Dharguli andChalkusa formed part of the Ramgarh zamindari.
and that the Ramgarh Rajahad the same proprietary rights in them as in the rest of his zamindari. Ifthis be so, it does not appear how a subsequent remission of land revenue,whether authorized by the Government or not, could affect the proprietaryrights of the zamindar.It is stated by Major Sifton, the Settlement Officer, in his order dealing with Dharguli, that Fateh Singh and Bechu Singh belonging to the defendants' family, were two of the principal lientenants of Tej Singh, when he invited the Company's assistance and defeated Mukund Singh and obtained the gadi. Tej Singh may well have rewarded them by a grant of other villages in addition to their Markacho estate and by allowing them to hold such villages without paying jama. So long as they paid their own jama to Government according to the terms of their patta. zamindars were at liberty to collect or not to collect the jama payable to them by those holding under them, as the jama or land revenue had been alienated to them for the duration of the settlement, but they could not by further affect the Government's right to its land revenue. Therefore at the decennial settlement of 1790, Government could either have reassessed these villages and included the assessment in the assets with reference to which the zamindar's jama was fixed, or have left them unassessed or lakiraj, in which case the zamindar was prohibited by the terms of his patta from assessing them.
In their Lordships' opinion these considerations are material with reference to the other document on which the defendants rely, Ex. B, Mr. Dallas's sanad of November 1791, remitting the revenue of Dharguli and Chalkusa and two other villages which are not the subject of this suit.
"(Seal of) Mr. George Dallas, Madarul Muham principal manager) of the East India Company, the best of traders, under Emperor Shah Alam, the Victorious (illegible).
"To the brave Thakur Fateh Singh and Thakur Bechu Singh. May you live in comfort. I had called you giving you assurances. Thereupon you had sent Thakur Bechu Singh and Babu Medni Singh to me, as ordered by me. Both of them appeared before me. Both of them settled the entire landed property as it was ordered by me and submitted the settlement papers to me. Therefore I am highly pleased with you, as you have carried out my orders, and I have come to know well that you are great well wishers of the Company. Bearing this in mind, taking into consideration your loyal services and being pleased with you, I remit the rent of the four Chhajan (?) villages, which belong to you, in favour of you and your children. No one should, in future, ever make a claim in respect of the rent of those four villages.
"Mauza Dharguli-1, Mauza Sariya-1.
"Mauza Bagdo-1, Mauza Jalkusa-1.
"The 7th Aghan Badi, 18, (torn) Sambat, corresponding to 4th November (torn) 91."
The appellate Court have held this document to be genuine but invalid, as infringing the rights of the zamindar under the patta of 1790. Their Lordships are unable to share this view. They find it difficult to believe that the Collector, merely because he was pleased with Fateh Singh and Bachu Singh for following his advice in coming to a settlement with their ryots and in consideration of their former services, would have taken upon himself to remit land revenue to which the zamindar was entitled under his patta. It appears to them much more likely that, as contended before the appellate Court, these villages were treated as lakiraj and left unassessed at the decennial settlement. In that case, more especially if no grant of exemption by Government was forthcoming, the Collector may well have felt himself authorized by virtue of the authority vested in him, either to resume the revenue and assess the villages, or for the reasons mentioned in the sanad, to regularize the existing situation by making, on behalf of the Government, a formal remission of the land revenue.
It is however, in their Lordships' opinion, quite immaterial for the purposes of the present case, whether or not Mr. Dallas granted the alleged remission, and whether or not he had authority to do so. The remission by the Government of its right to the land revenue of these villages could in no way affect the Ramgarh Raja's proprietary rights in these villages or his right as against tenure-holders under him to claim the ownership of the minerals in them. In their Lordships' opinion the appeal fails and should be dismissed and they will humbly advise His Majesty accordingly. The appellant must pay the respondent's costs of the appeal.