dedol-hf/india-case-legal-rag huggingface dataset:
Agent for the petitioners: 1. N. Shroff.
Agent for the respondents: P.A. Mehta.
PETITIONER:
SUKHDEV SINGH
        Vs.
RESPONDENT:
MAHARAJA BAHADUR OF GIDHAUR
DATE OF JUDGMENT:
02/05/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MUKHERJEA, B.K.
AIYAR, N. CHANDRASEKHARA
CITATION:
 1951 AIR  288            1951 SCR  534
ACT:
Ghawali tenures--Nature and incidents--Government  ghatwalis
and  Zemindary  ghatwalis--Difference--Zemindar's  right  to
sub-soil minerals--District Gazetteers--Evidentiary value.
HEADNOTE:
Though  there are several instances in which  Government
ghatwalls  were included in the zemindary of other  persons,
yet  where no clear evidence is forthcoming as to  the  true
character of a ghatwali, the fact that the tenure is includ-
ed  within a zemindary and is covered by the  jama  assessed
upon  it  should turn the scale in favour of the  party  who
alleges  that  it is a tenure which is  dependent  upon  the
zemindary.
   The  mere fact that the ghatwali was shown to  be  under
the  Collector cannot alter the character of  the  ghatwali,
i.e., if it was a zemindary ghatwali, it could not become  a
Government ghatwali merely because it was stated to be under
the Collector.
    A  zemindar is presumed to be the owner  of  underground
rights  in  the tenancies created by him in the  absence  of
evidence that he ever parted with them.
    A statement in the District Gazetteer is not necessarily
conclusive,  but  the Gazetteer is an official  document  of
some value, as it is compiled by experienced officials  with
great care after obtaining the facts from official records.
(History and incidents of ghatwali tenures discussed).
JUDGMENT:
CIVIL APPELLATE JURISDICTION. Civil Appeal No. 29 of 1950.
   Appeal  against  the Judgment and Decree dated  the  10th
October,  1945,  of the High Court of  Judicature  at  Patna
(Manohar  Lal and Das JJ.) in Appeal No. 64 of 1942  arising
out of decree dated the 28th February, 1942, of the Subordi-
nate Judge at Monghyr in Suit No. 10 of 1941.
    Amarendra  Nath  Sinha (Samrendra Nath  Mukherjee,  with
him) for the appellants.
    Lal  Narain  Sinha (R.C. Prasad, with him) for  the  re-
spondent,
535
    1951. May 2. The judgment of the Court was delivered by
    FAZAL  ALI  J.--This is an appeal from  a  judgment  and
decree of the High Court of Judicature at Patna, affirming a
judgment and decree of the Subordinate Judge of Monghyr in a
title suit brought by the plaintiff-respondent.
    The plaintiff, the Maharaja of Gidhaur, who has succeed-
ed  in  both  the  courts below, is  the  proprietor  of  an
impartable  estate known as Gidhaur raj in the  district  of
Monghyr.    The  ancestors  of  the  defendants  1st   party
originally  held a 4 annas share in a ghatwali tenure  known
as Mahal Dumri Nisf Katauna T. No. 325, and subsequently  by
private partition they were allotted mouza Dumri with its 47
tolas  which are detailed in schedule I of the  plaint.   In
execution  of a mortgage decree obtained by one Chethru  Rai
against  the  ancestors  of  defendants  1st  party,   their
interest, to which reference has been made, was purchased by
the  Maharaja   of   Gidhaur  in the  name  of  one  of  his
employees, and the latter took delivery of possession of the
property on the 19th April, 1904.  On the 13th August, 1903,
the   ancestors  of  the  defendants  1st  party  filed   an
application  for setting aside the sale which was  dismissed
by the executing court and the appeal from the order of  the
executing  court was dismissed by the High Court as well  as
by  the  Privy  Council.   After  certain  disputes  in  the
criminal  courts,  the  defendants  second  party   alleging
themselves to be the lessees of the defendants first  party,
obtained  a mining license in 1937 from  the  sub-divisional
officer of Jamui, and the District Magistrate apprehending a
breach  of the peace, started proceedings under section  144
of the Criminal Procedure Code, which ended in favour of the
defendants   first  and  second  parties  and  against   the
plaintiff.
The plaintiff's case is that, emboldened by the order in
the  proceedings under section 144, the  defendants  started
working  mines in the tolas mentioned in schedule II of  the
plaint and extracted a considerable
  536
  quantity of mica and hence he was compelled to   institute
the present suit.  In this suit, after reciting   the  facts
to  which reference has been made he prayed  for a  declara-
tion of the subsoil rights with regard to  the entire  Mahal
Dumri and for recovery of possession  of the mortgage  lands
situated  in  the  tolas specified in  schedule  11  of  the
plaint.  He also prayed for mesne  profits and  a  permanent
injunction  restraining  the  defendants  first  and  second
parties from extracting  mica or other underground  minerals
from the lands  mentioned in schedule II of the plaint.  The
grounds  on which these reliefs were claimed are  summarized
in  paragraph 12 of the plaint in these words :-
"That  the plaintiff submits that he being the 16   annas
proprietor  of Dumri Nisf Katauna has got  an   indefeasible
right  and title to all the underground  minerals  including
mica situate within the said talukas.  The plaintiff further
submits  that  all the titles and  interest in  the  said  4
annas mokrari shares of the  ancestors of the defendant  1st
party  having  been   acquired by  plaintiff's  ancestor  by
auction  purchase in  1903, the defendant 1st party have  no
sort  of right  and interests in the mica and other   under-
ground   minerals nor the defendant 2nd party  have  derived
any lawful right under leases alleged to have been   granted
in  their favour by defendant 1st party, the   plaintiff  in
law  is  entitled  to get a declaration of  his   title  and
possession with respect to all the underground right includ-
ing mica  ........."
The  suit  was  contested by defendants  Nos.  1  to  11
(defendants 1st party), but, as the trial judge has  pointed
out,  the real defendant was defendant No. 1, father of  the
appellant.   The  case of this defendant was that  the  four
annas interest in village Dumri was a ghatwali tenure grant-
ed to the ancestors of the defendants first party by  Muham-
madan rulers to guard the hill passes in the taluka, and the
grant  under  which they held was affirmed  subsequently  by
Captain Browne, a representative of the East India  Company.
The  defendant No. 1 further contended that the mineral  and
subsoil rights were vested in him as the holder of
537
the ghatwali tenure, and that the plaintiff had acquired  no
right  by  his  auction-purchase in  1903  inasmuch  as  the
property in suit being Government ghatwali tenure was inali-
enable  and consequently the auction-purchase  was  invalid.
Lastly, it was  contended that this defendant and his ances-
tors had been exercising rights of possession over the mines
and  minerals  for more than 12 years prior to the  suit  in
assertion  of their ghatwali right and to the  knowledge  of
The  plaintiff  and his ancestors and had thus  acquired  an
indefeasible  right by adverse possession to the  mines  and
minerals in suit, especially those in the lands specified in
schedule II of the plaint.
The  Subordinate Judge decreed the suit,  holding  among
other things that the disputed tenure was a zamindary  ghat-
wali tenure that it was not inalienable, that the  plaintiff
had been in possession of the property since he purchased it
in  1903 until the order of the District Magistrate made  in
1038, that the plaintiff as the proprietor of the Mahal  was
entitled  to the mineral and subsoil rights and  that  under
the  mortgage-sale only the surface right had passed to  the
plaintiff.  The findings of the Subordinate Judge were  sub-
stantially  upheld  on appeal by the High Court,  with  this
modification that, while agreeing with the Subordinate Judge
that  the subsoil rights remained with the  proprietor,  the
High  Court also held that even if the defendant No.  1  was
assumed to have had the subsoil rights, those rights  passed
at the mortgage-sale of 1903 and therefore in any event  the
plaintiff was the real owner of the subsoil.  On the plea of
adverse  possession  raised in defence, the finding  of  the
High  Court  was that there was no clear evidence  that  any
mine was worked on behalf of the lessees of defendant No.  1
and  that  at the utmost the evidence adduced  in  the  case
showed that there had been some isolated acts of  possession
during recent years, probably since 1935 onwards, and there-
fore the plea could not be upheld.
    The two main points urged on behalf of the appellant  in
this appeal are :--
538
(1) that the finding of the courts below that the  ghat-
wali tenure held by the defendants first party was a zamind-
ary  ghatwali  and not a Government ghatwali, could  not  be
sustained and that in fact it was a Government ghatwali  and
therefore  the property was inalienable and no title  passed
to the plaintiff; and
    (2)  that in any event, the plaintiff's suit was  barred
by  limitation under articles 142 and 144 of the  Limitation
Act.
The  first point does not appear to us to be  free  from
difficulty,  and  since its determination depends  upon  the
proper  construction of several old documents, we heard  the
parties  at  considerable length, notwithstanding  the  fact
that  the  courts  below have concurrently  found  that  the
tenure  in  question is not a  government  ghatwali.  Before
dealing  with  the  merits of the  controversy  between  the
parties,  it is necessary to understand what is meant  by  a
"ghatwal" and what is a ghatwali tenure, and for the purpose
of correctly apprehending what these expressions stand  for,
it  is  sufficient  in our opinion to  quote  the  following
passage  from the decision of the Patna High Court  in  Rani
Sonabati  Kumari v. Raja Kirtyanand Singh (1), in which  the
subject  of ghatwali tenures has been very elaborately  dis-
cussed :--
    "Literally a ghatwal means a guard of the passes and the
term  'ghatwali tenure' was applied by the Moghuls to  lands
assigned  at  a low rent or free of rent  for  guarding  the
mountain  passes and protecting the villages near the  hills
from the depredations of lawless hill tribes.  These ghatwa-
li tenures are to be found for the most part on the  western
frontier  of Bengal and particularly in the areas  known  as
Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur, and  the
Santal Parganas.  The ghatwals varied in rank and the  inci-
dents  of their tenure varied in different places.  In  some
cases  they  were owners of large estates,  some   of  these
estates  being more or less of the nature of   semi-military
colonies  .........  In some cases the
(1) I.L,R. 14 Patna 70.
539
ghatwalis  were created directly by the ruling power,  while
in other cases they were created by  the landlords or zamin-
dars  for  the  purpose of protecting  their  zamindary  and
tenantry  and to enable them to have a small force at  their
command  and  to discharge the obligations they owed to  the
ruling  power.    Sometimes  the  owners-of  large  ghatwali
estates subdivided and re-granted the lands to other tenants
who besides paying small rents held their lands on condition
of rendering certain quasi police and military services  and
providing  a  specified number of armed men  to  fulfil  the
requirements  of  the Government or of the zamindar  as  the
case might be."
    A  Government ghatwali is thus a tenure created  by  the
ruling power in favour of a person who is required to render
ghatwali  services to it, whereas a zamindary ghatwali is  a
tenure  created  by a zamindar for ghatwali services  to  be
rendered  to him. It is quite plain that the reason why  the
appellant  is  anxious to establish that the  tenancy  is  a
Government  ghatwali is that a Government ghatwali has  been
uniformly  held  to be inalienable.  On the  other  hand,  a
zamindary ghatwali may be alienated with the consent of  the
zamindar, and, where local custom permits, even without  his
consent.   From the reports of cases relating  to  zamindary
ghatwalis,  it appears that by the passage of time the  con-
sent  of  the  zamindar has ceased to be a  matter  of  much
significance,  and  is generally presumed when it  is  found
that the alienation has been made without any objection from
the zamindar.  As to the extent of the power of  alienation,
the  following  observations of the Privy  Council  in  Kali
Prasad v. Ananda Rai (1) are pertinent :--
    "When  once it is established that the ghatwal  had  the
power  of alienation, as before stated, that power forms  an
integral portion of his right and interest in the  ghatwali,
and there is no evidence whatever to limit it to an  aliena-
tion for his own life and 'no longer."
(1) 15 I.A. 18,
540
In  order to determine the true character of a  ghatwali
tenure,  it  is usually necessary to refer to the  grant  by
which  the  tenure was created.  It the  present  case,  the
appellant  relies  upon exhibit C (1), which is  a  ghatwali
sanad granted in 1776 to the ancestors of the appellant  and
which runs as follows :--
    "Know  ye  the  Chaudhuris,  kanungoes,  zamindars   and
mutasaddis of mauza Dumri Ghat (illegible) pargana  Gidhaur,
Sarkar Monghyr comprised in the province of Bihar.
    The perquisites of ghatwari in all the rahdaris in mauza
aforesaid,  have  now been granted to  Kunji  Singh,  Jangal
Singh, Ragho Singh and Manorath Singh, ghatwars of the  said
mauza,  in accordance with what has been in vogue  from  old
time,  with effect from the commencement of 1184 fasli.   It
is desired that they should allow the said ghatwars to enjoy
the perquisites of the ghatwari in all the rahdaris  accord-
ing to old custom. It will be the duty of the said  ghatwars
to  be ever ready in discharging the duties of the post  and
guarding  the  ghats and chaukis of their  elaqa  by  making
rounds  day and night. If murder, mischief,  theft,  highway
robbery and sudden night attack be committed in their elaqa,
they will be held liable therefor and will be dismissed from
their  post.  Treat this as peremptory and act according  to
what is written.
    Dated  the  5th Ziqada of the 18th year  of  the  August
reign corresponding to 1184 Fasli."
    This sanad was granted by Captain Browne, who was deput-
ed  by  the East India Company to restore order in  a  tract
known as Jungle Terai, a vast waste and hilly country as its
name signifies, lying to the south of Bhagalpur and west  of
Rajamahal  Hills. This document was construed by a Bench  of
the  Patna  High  Court  in  Fulbati  Kumari  v.  Maheshwari
Prasad(1),  and,  as has been pointed out by  Dawson  Miller
C.J. in that case,-
     "  It is not a grant of land but an authority  to  the
persons named to collect as formerly ghatwari of
 (1) A.I.R. 1923 Patna 453.
541
ghatwali fees or tolls from those using the roads and passes
which the ghatwals undertook to protect."
When  we compare this sanad with other  ghatwali  sanads
granted by Captain Browne, some of which are found discussed
in reported cases, the contrast becomes very marked. In some
of  the other documents-- for example in the document  which
was  the  subject of the decision of the  Privy  Council  in
Narayan Singh v. Niranjan Chakravarti (1), and of the  Patna
High  Court  in  Rani Songbati Kumari  v.  Raja   Kirtyanand
Singh(2)  the grant was in respect of a very extensive  area
of land and there were also words used to indicate that  the
services  were to be rendered directly to the ruling  power.
The  mere fact, therefore, that the sanad in this  case  was
granted  by Captain Browne cannot be held to be decisive  of
the nature of the tenure, because it seems to have been part
of  the duties assigned to him to confirm and recognise  old
titles. As was pointed out by Dawson Miller C.J., the  sanad
should be  read along with the record of certain proceedings
before  the  Dewani  Adalat of Ramgarh, which  show  that  a
tenancy comprising 8 annas in mauza Dumri was granted by the
zamindar of Gidhaur to 2 persons, one of whom was the  ghat-
wal  mentioned in Captain Browne's sanad, with the  sanction
of Captain Browne. In the present case, a document of  1708,
which was the proceeding of the original court and which was
before the learned judges who decided Fulbati's case(3)  has
not  been produced, but we have before us a  judgment  dated
the  18th  March, 1799, of the appellate court in  the  same
proceeding.   This  judgment recites that the  case  of  the
ghatwals was that they had been for 3 generations in posses-
sion  of half of village Dumri, but in the year  1187  fasli
(1780  A.D.) the zamindar of Gidhaur wanted to raise  "reve-
nue"  or  rent  but they refused to accept a  new  patta  or
kabuliyat  at  an  enhanced rent.  Subsequently,  the  court
ordered the zamindar to grant a patta, but the zamindar  did
not  do  so  and forcibly dispossessed  the  ghatwals.  They
thereupon prayed that
(1)  51 I.A. 37.       (3) A.I.R. 1923 Patna 453,
(2)I.L.R. 14 Patna 70.
70
542
the  zamindar may be ordered to grant them a patta  and  re-
ceive  the kabuliyat at the old rent.  The appellate  court,
to which the zamindar had appealed, upheld the decree of the
first court ordering the patta to be granted.  This document
shows firstly that the ghatwali tenure in respect of half of
Dumri had been in existence for a generations prior to 1780,
i.e.,  it must have come into existence long before  Captain
Browne's  sanad,  and secondly that it was  held  under  the
zamindar; otherwise, it was not necessary that the  zamindar
should  grant a patta and the ghatwal should execute  a  ka-
buliyat in his favour.
    We have also before us a document (exhibit 1) which as a
report  of one Khadim Muhammad Ataullah, an employee of  the
East India Company, incorporating certain statements made by
the then zamindars of Gidhaur showing that they had been  in
possession,of  the zamindary for nearly 700 years  and  that
"the  milkiat  zamindari,  Chaudhri  and  Kanungoi  of   the
pargana  .....   had all along been  in  their  possession."
This  document shows that Gidhaur was an  ancient  zamindary
and  the zamindar also performed the functions chaudhri  and
kanungoi. The last mentioned point is of some  significance,
because the sanad of Captain Browne was addressed to chaudh-
ris, kanungos, etc.
   In the case of Fulbati Kumari (1), to which reference has
been  made,  there  was an extract quoted  from  the  Bengal
District Gazetteer, volume XVII, at page 168, which runs  as
follows :--
"About  1774  the lawless state of this tract  led  the
British  to place it in charge of Captain James Browne,  who
settled  the estates with the ghatwals with two  exceptions.
These  two  exceptions  were Dumri and  Mahesri  which  were
settled directly with the proprietors, the story being  that
the  ghatwal tenure holders fled at the approach of  Captain
Browne  their reputation as dacoits and brigands  being  too
strong for them to face a Government officer without fear of
the  consequences.   In the case of Dumri however,  the
(1) A.I,R. 1923 Patna 453.,
543
ghatwals finding that in their absence a settlement had been
made of their tenure, returned and obtained a sanad settling
it  with  them under the Raja of Gidhaur.   Of  the  estates
settled  with  ghatwals only two are now held by  their  de-
scendants,  viz.  Tilwa and Kewal.  The others  have  passed
into  the  hands  of the Maharaja of  Gidhaur,  Chetru  Rai,
Akleswar Prasad and others of Rohini."
The  statement in the District Gazetteer is  not  neces-
sarily conclusive, but the Gazetteer is an official document
of  some value, as it is compiled by  experienced  officials
with  great  care after obtaining the  facts  from  official
records. As Dawson Miller C.J. has pointed out in  Fulbati's
case (1), there are a few inaccuracies in the latter part of
the  statement quoted above, but so far as the earlier  part
of it is concerned, it seems to derive considerable  support
from the documents to which reference has been made.
    The counsel for the appellant greatly relied on the fact
that Dumri ghatwali is mentioned in Captain 'Browne's "India
Tracts"  as one of the ghatwalis placed under the  Collector
of  Jungle Terrai districts. It appears that this point  was
not  raised before any of the courts below, nor was  Captain
Browne's treatise placed before them.  There is thus consid-
erable  force in the objection raised on behalf of  the  re-
spondent that he has not had sufficient opportunity to study
the matter and place relevant materials before this court to
enable  it  to determine what meaning and  value  should  be
attached to Captain Browne's statement. But apart from  this
objection, it seems to us on the evidence as it stands, that
the  inference  sought  to be drawn  from  Captain  Browne's
statement  is not fully justified for the following  reasons
:--
    1. The mere fact that the ghatwali was shown to be under
the  Collector cannot alter the character of  the  ghatwali,
i.e., if it was a zamindary ghatwali, it could not become  a
Government ghatwali merely because it was stated to be under
the Collector.
(1) A I.R. 1923 Patna 453.
544
    2.  As  Collector of Jungle  Terrai  districts,  Captain
Browne  appears to have had control not only over the  ghat-
wals  but also over the zamindars within the  area  adminis-
tered by him.
    3.  The observations made by Captain Browne with  regard
to  the  Jungle Terrai ghatwals and their  relation  to  the
zamindar  hardly  support the view urged on  behalf  of  the
appellant.
Referring to the Jungle Terrai ghatwalis, Captain Browne
states in his book as follows :--
    "All the Jungle Terry gautwalls were formerly subject to
the  several Rajahs, to whose territories their  Gautwallies
belonged;  they  paid a slight tribute in  token  of  feodal
obedience,  and were bound to oppose all invasions  (princi-
pally from the south) to attend their Rajahs when  summoned,
with all their followers in arms, and to be responsible  for
every  violence and irregularity committed in their  respec-
tive boundaries:their followers are still bound by the  same
feodal  ties  to them, and have lands for  feodal  services;
nothing can be conceived more absolute than the authority of
these  chiefs  over their vassals; the fear of  death  even,
when seized on in war, is not sufficient to force from  them
the  discovery  of any secret respecting  their  chief,  his
family, or property."
    Again,  Captain Browne's description of the zamindar  of
Gidhaur is to the following effect :--
    "The  Raja of Guidore was formerly of great extent,  but
the  conquests  made from it by the Rajah  of  Bierboom  and
Comgar Cawn, and the independency which these wars gave  the
Gautwalls  an  opportunity  of assuming,  have  reduced  the
present  Rajahs Gopal Singh, and Durrup Singh, to follow  an
ebb,  that they can scarcely recover sufficient  consequence
to be of any political weight whatever."
    On the whole, it appears that the ghatwals of Dumri were
hardly  men  of such consequence as to break  off  from  the
zamindar and set themselves up as independent chiefs.
545
    There are two other items of evidence which seem to have
an  important bearing on the question.  In the first  place,
the  appellant's  tenure  was included  within  the  Gidhaur
zamindary  in the Permanent Settlement, and secondly, it  is
shown  in the Record of Rights as istemrari  mokrari  tenure
under  the zamindar of Gidhaur. In the case of Raja Lelanund
Singh  Bahadoor v. The Bengal Government (1) where the  Gov-
ernment set up a claim to resume the ghatwali in the zamind-
ary  of Khuruckpore for the purpose of  revenue  assessment,
the claim was negatived by the Privy Council, and one of the
grounds  upon  which  the decision was based  was  that  the
ghatwali lands were part of the zamindary and were  included
in the Permanent Settlement of the zamindar and were covered
by  the  jama assessed on that zamindary.  There can  be  no
doubt that prima facie the fact that the tenure was included