Case: Jibon Chandra Sarma Doloi Vs. Anandi Ram Kalita &amp; Others

fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands. In respect of the former he confirmed the grants revenue-free. In respect of the latter he simply confirmed the grantees in possession subject to the payment of Mr. Scotts favourable rates until Captain Bogles enquiry was terminated and final orders passed in that behalf.10. It is curious that though the enquiry of Captain Bogle went on for many years it was not formally completed till the year 1860. By that time the instructions issued by the Government of India at the commencement of the enquiry were lost sight of. No report was submitted to the Government by the enquiring officer and final orders of the Government of India were not obtained on the question whether the holders of brahmottar and dharmottar lands were to hold their lands at the rates fixed by General Jenkins. In consequence holders of these lands have ever since continued to hold at half rates without any formal decision by the Government of India having been reached in that behalf. Subsequently the holders rights to continue to hold the lands at the said rates have been recognised and their holdings have been declared to be heritable and transferable by the Government of India in 1879.11. This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.12. The history of this tenure is similarly stated in the Government Gazette relating to Assam as well as by Baden-Powell (vol. III, p. 406 following).13. At this stage it would be necessary to refer to the relevant provisions of Regulation 1 of 1886. It is called the Assam Land and Revenue Regulation of the said year. Section 3(g) of this Regulation defines land holder as meaning any person deemed to have acquired the status of a land holder under S. 8; while S. 8(1) provides, inter alia, that any person who has, before the commencement of this Regulation, held immediately under the Government for ten years continuously any land not included either in a permanently settled estate, or in a revenue-free estate, and who has during that period paid to the Government the revenue due thereon or held the same under an express exemption from revenue, shall be deemed to have acquired the status of a land holder in respect of the land. That takes us to S. 9 which provides that a land holder shall have a permanent heritable and transferable right of use and occupancy in his land subject to the provisions contained in cls. (a), (b) and (c) of the said section. It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]7. It appears that prior to the conquest of Assam under the previous regime the predecessors in interest of the then owners of Nisf-khiraj estates held their lands revenue-free and called themselves lakhirajdars.It appears that the instructions issued by the Government were not fully carried out by General Jenkins. Instead of treating all lakhiraj lands as being on the same footing and liable to assessment the General drew a broad distinction between debotter lands which were appropriated to temples and lands known as brahmottar or dharmottar, that is to say lands devoted to some religious purpose not being temple lands.This summary of the history of these lands which is to be found in the introduction to the Assam Land Revenue Manual shows that Nisf-khirajdar of the present day "is ordinarily a person whose lands were claimed by his ancestors revenue-free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose". It appears that the word Nisf-khiraj was invented for the first time in 1871 and it applied to all estates which paid half the ordinary revenue rates. This word was presumably invented to avoid confusion caused by the use of the word lakhiraj which had been applied to them prior to 1871.It is unnecessary to refer to the said exceptions. It would thus be clear, and indeed it is not disputed, that the transferor Bardeuries who held the lands in suit fall under S. 8(1)(a) and became land holders under S. 3(g). The inevitable consequence of this position is that S. 9 applies to them and their rights in the lands in their occupation are statutorily recognised to be permanent, hereitable and transferable. This statutory position is consistent with the declaration made by the Government of India in 1879, and in view of this clear statutory position it would be difficult to sustain the plea that the lands in question are burdened with the special condition that they can be transferred only to Bardeuries and not to any strangers outside the group. As the High Court has found, and that is no longer is dispute, these lands are described as brahmottar lands in revenue records and to the said lands and their holders the statutory provisions of the Regulation to which we have just referred applied; therefore, it is impossible to escape the conclusion that by virtue of the relevant statutory provisions of the Regulation the lands must be deemed to be heritable and transferable without any restriction. This aspect of the matter was completely ignored by the trial court and the appellate court and so the High Court was right in correcting the error which had crept into the concurrent decisions of the courts below.14. Besides, the High court was also right in holding that in a case of this kind where the appellant urged that the lands could be alienated only to a specified class of persons, the onus was on the appellant and not on the respondents to prove the contrary. Failure to put the onus on the appellant introduced a serious infirmity in the approach adopted by the courts below in dealing with this question. That was another infirmity in their decision. It is also clear that the evidence adduced by the appellant in support of his case to which reference has been made by the first two courts is entirely unsatisfactory, and, even if it is believed, in law it would be insufficient to sustain the plea that there was a limitation on the transferability of the lands in question. We are also satisfied that the declaration granted by the District Court was futile. Therefore, in our opinion, the view taken by the High Court is absolutely correct and the grievance made by the appellant against the validity of the said conclusion cannot be sustained.