dedol-hf/india-case-legal-rag huggingface dataset:
ra, the High Court at p. 86 observed :-
    "It  appears that there is considerable variety  in  the
tenures known under the general name of Ghatwali in  differ-
ent parts of the country.  They all agree in this that  they
are  grants of land situated on the edge of the hilly  coun-
try, and held on condition of guarding the ghats or  passes.
Generally,  there seems to be a small quit-rent  payable  to
the  Zamindar in addition to the service rendered, and  with
the view of marking
(1) (1865) 3 W.R. 84.
70
the  subordination of the tenure.  But in  some  Zamindaries
and  putnees  these tenures are of a major, in others  of  a
minor, character.  Sometimes the tenure of the great  Zamin-
dar himself seems to have been originally of this character.
More  frequently large tenures, consisting of several  whole
villages, are held under the Zamindar."
    Further down their Lordships said :
   "These  inferior Ghatwalis seem to be those in which  the
Zamindar  or ruling power deals direct with the  individuals
who do the work, assigning them pieces of land in the estab-
lished villages. The larger tenures were more of the  nature
of semi-military colonies, where a chief with his  followers
were settled down in parts of the country so unsafe that  it
could not be otherwise occupied."
   The law relating to Ghatwali tenures has been dealt  with
at  considerable  length by Lord Sumner in Narayan Singh  v.
Niranjan  Chakravarti (supra). The variety of conditions  of
service  to be rendered by a Ghatwal was thus summed  up  by
his Lordship at pp. 80-51 :-
  "In itself 'ghatwal' is a term meaning an office held by
a  particular person from time to time, who is bound to  the
performance  of its duties, with a consideration to  be  en-
joyed in return by the incumbent of the office.  Within this
meaning  the utmost variety of conditions may  exist.  There
may  be  a mere personal contract of employment  for  wages,
which  take the form of the use of land or an actual  estate
in  land,  heritable  and perpetual,  but  conditional  upon
services certain or services to be demanded.  The office may
be public or private, important or the reverse. The Ghatwal,
the guard of the pass may be the bulwark of a whole country-
side  against  invaders; he may be merely a  sentry  against
petty  marauders  ;he may be no more than a  kind  of  game-
keeper,  protecting the crops from the ravages of wild  ani-
mals.  Ghatwali duties may be divided into police duties and
quasi-military duties, though both classes have lost much of
their importance, and the
71
latter  in any strict form are but rarely  rendered.  Again,
the  duties  of the office may be such  as  demand  personal
discharge  by the Ghatwal and personal competence  for  that
discharge;  they may, on the other hand, be such as  can  be
discharged  vicariously, by the creation of  shikmi  tenures
and  by  the appointment and maintenance  of  a  subordinate
force,  or they may be such as in their nature only  require
to  be provided for in bulk. It is plain that where a  grant
is  forthcoming to a man and his heirs as Ghatwal, or is  to
be presumed to have been made though it may have since  been
lost,  personal performance of the ghatwali services is  not
essential so long as the grantee is responsible for them and
procures them to be rendered: Shib Lal Singh v. Moorad Khan,
(1868) 9 Suth. W.R. 126."
    Then  his  Lordship pointed out that  the  superior  who
appointed  the  Ghatwal might be the ruling power  over  the
country  at large, the landholder responsible by custom  for
the maintenance of security and order within his estates, or
simply the private person, to whom the maintenance of watch-
men  was,  in the case of an extensive  property,  important
enough  to  require the creation of a regular  office.   Al-
though personal service by the employee and personal  selec-
tion  and appointment by the employer might have been  ordi-
narily  essential incidents of the relationship, yet it  was
not invariably so as appears from the last quotation as well
as from the following passage in the judgment by Lord Sumner
at p. 52 :-
    "On  the  other  hand, there are  great  estates,  whose
proprietors are found holding them or parts of them upon the
terms of providing that ghatwali services shall be forthcom-
ing,  either  regularly  or when required;  services  it  is
impossible  for the proprietor himself to render in his  own
person,  and  which become possible to him and to  those  to
whom  he renders them simply by virtue of his possession  of
the  lands thus granted. In such eases the ghatwali  tenure,
even if not originally granted as heritable, easily  becomes
so,  and is commonly found on the death of an  incumbent  of
the
72
office  to  descend  to some member of his  family,  if  not
necessarily to the senior member. Thus in Kharakpur ghatwals
have a perpetual hereditary tenure at a fixed jama:  Munrun-
jun Singh v. Lelanund Singh."
    The  requirement of rendering of services by  a  Ghatwal
naturally gave rise to a further incident of such a  tenure,
namely,  the  inalienability of the Ghatwali lands,  for  an
alienation  of the Ghatwali lands might easily  deprive  the
Ghatwal  of  the whole of the means provided to  enable  the
services  to  be rendered.   This  consideration  peculiarly
applied  where the superior, by whom the Ghatwals  were  ap-
pointed  and of whom the Ghatwali lands were held.  was  the
ruling power itself.  As has already been stated above,  the
rigour  of this incident of inalienability had, however,  in
the  case  of Kharakpur Zamindari Ghatwalis,  given  way  to
custom  recognised as well established in the case  of  Kali
Petshad  v.  Anund Roy (supra), which  has  been  repeatedly
followed  and applied in India without proof of  the  custom
being required over again.
    From what has been stated above, it clearly follows that
Ghatwali  tenures originated during the Moghul period,  that
although  the services included police duties, they were  in
their origin just as much of a military as a civil character
and  that  the tenure could be granted by the  ruling  power
directly to the Ghatwal who was to render the services so as
to  establish a direct privity between the ruling power  and
the  Ghatwal or it could be granted by the Zamindar for  the
protection  of his Zamindari or for. enabling him to  render
the police and military services 'to the ruling power  which
he was bound to do under the terms of the grant of Zamindari
to  him.  The question then arises --which of these  catego-
ries the Ghatwals of Kharakpur come under.
    Mahalat Kharakpur was an extensive estate and apparently
owed  allegiance,  real or nominal, to the  Moghul  Emperor.
There  is  no evidence on record showing on what  terms  the
Raja  of Kharakpur held the estate under the Moghuls and  it
is difficult to say,
73
with  any amount of certainty, what kind or amount of  serv-
ices,  police  or  military, he had to render  to  the  then
ruling power.  It may, however, be safely stated that,  like
all  other Zamindars, the Raja of Kharakpur had to  preserve
internal peace and order by maintaining sufficient Thanas or
police  establishments and to protect the tenants and  other
inhabitants  from the incursions of lawless tribes from  the
neighbouring  hills by providing or arranging for  a  suffi-
cient  military force.  It could not be expected that a  big
Zamindar like the Raja of Kharakpur would render the  police
or  military  services personally and  consequently  it  was
natural  for him to appoint his own Ghatwals to protect  his
Zamindari  and  to  render services for him  to  the  ruling
power.  As said by Lord Kingsdown in Raja Lelanund Singh  v.
The  Government  of  Bengal (supra) at p. 102  it  was  well
established that long before 1765 the Zamindars of Kharakpur
had  created Ghatwali tenures for the purpose of  protecting
their Zamindaries from the attacks of mountaineers and other
turbulent  people  in  their neighborhood.  Lord  Sumner  in
Narayan Singh v. Niranjan Chakravarti (supra) at p. 68  also
recognised that long before 1765 Ghatwali tenures under  the
Zamindar of Kharakpur had been created by the various  hold-
ers  of  those lands for their own purposes and as  late  as
1770-1785  Mr. Cleveland, who managed the estate during  the
minority of Kadir Ali, followed the same  policy.  In Naray-
an  Singh  v.  Niranjan Chakravarti (supra) at  p.  50  Lord
Sumner said :-
    "In  the Sonthai Parganas there are for  practical  pur-
poses  three  classes of Ghatwali  tenures:  (a)  Government
ghatwalis created by the ruling power; (b) Government  ghat-
walis, which since their creation and generally at the  time
of the Permanent Settlement have been included in a  zamind-
ari estate and formed into a unit in the assessment; and (c)
zamindari  ghatwalis, created by the zamindar or his  prede-
cessors and alienable with his consent. The second of  these
classes is really a branch of the first."
The  question,  then, is--to which  class  the  Ghatwali
tenure of Taluk Kakwara, with which we are concerned
        10
74
in this case, belongs--whether it was a Government  Ghatwali
or  was  one  of the many Ghatwali tenures  created  by  the
Zamindars of Kharakpur.
    Happily, we do not have to speculate. The problem before
us  is  not to infer the true nature and  incidents  of  the
original  grant which could only be collected from the  evi-
dence  of what was done and left undone in  connection  with
Taluk Kakwara by the ruling power and its officers.  We have
in evidence before us the authentic texts of the two  Sanads
relating to the Kakwara Ghatwali and we also have the provi-
sions of the Permanent Settlement Regulation. The nature and
incidents  of that tenure must rest upon the true  construc-
tion and import of those grants as well as on the manner  in
which it was dealt with at the time of the Permanent Settle-
ment.
It  will  be convenient and useful, at this  stage,  to
give  a  very short history of Mahalat Kharakpur  and  Taluk
Kakwara.  In 1765 the East India Company secured the  Dewani
of  Bengal,  Bihar and Orissa from the Moghul  Emperor.  The
accession  of  Dewani was in effect a cession of  the  three
provinces  and the East India Company virtually  became  the
sovereign ruling power over those territories. At that  time
one  Mozaffar Ali was the Raja of Mahalat  Kharakpur.  Taluk
Kakwara  appertained  to Mahalat Kharakpur.   In  1766  Raja
Mozaffar Ali rose in rebellion against the East India Compa-
ny.  A  strong military force under the command  of  Captain
Browne was sent for quelling the revolt. Eventually, in 1768
Raja  Mozaffar Ali was subdued and imprisoned. The Raja  was
deposed and deprived of his estate and the East India Compa-
ny  took direct charge of Mahalat Kharakpur and  managed  it
through its officers until the Mahalat was restored to  Raja
Kadir  Ali, the grandson of Raja Mozaffar Ali. In 1776  Cap-
tain Browne, who was then in charge of the Mahalat,  granted
an  Amalnama or Sanad (Exhibit 1) in respect of 22  villages
to  two  persons Rankoo Singh and Bhairo Singh  at  a  fixed
annual Jama of Rs, 245-12-15. That Sanad was in the  follow-
ing terms:
75
    "Seal  of Captain James Browne, head of jungletari  (low
forest land). Know ye, the present and future Mutasaddis  of
affairs,  Chaudhuris,  Kanungos, Zamindars and  Ghatwals  of
Pargana Danda Sukhwara, Zila Jangal-tari.  appertaining   to
Kharagpur,  Sarkar Monghyr, in the Province of Bihar.
    From the beginning of 1184 Fasli, Taluka Kakwara, parga-
na aforesaid, is let out in perpetual mukarrari, without any
objection  or contention, to Rankoo Singh and Bhairo  Singh,
ghatwals of the said Taluka, at a fixed jama of Rs.  245-12-
15  (rupees  two hundred and forty-five,  annas  twelve  and
gandas  fifteen) in current coins noted in the  endorsement,
consolidated  from all sources, including  malwajhat,  sair-
wajhat and all grains, and excluding the perquisites of  the
zamindari,  nankar, chaudhuris and kanungos,  parganati  ex-
penses,  lands given in charity, e.g.,  barhmotar,  shibotar
and bishunparit lands, aima lands of jagirdars,  bargandazes
(musketeers),  dhupars (?), mahus (?) etc. It  is  requisite
that  they  should peacefully cultivate (torn) and  pay  the
Government  (torn),  according to the kabuliat,  year  after
year  and  crop after crop, into  the  Government  treasury.
They should make such effort as to increase the  cultivation
of the said Taluka from day to day.  They should hold  them-
selves  responsible for deficient cultivation.  They  should
keep  the  tenants  pleased and contented  with  their  good
treatment and should not oppress any one and make  excessive
demands. They should not fix the allowance of the  jagirdars
and  bargandazes etc., over and above the rent. They  should
bear this in mind. They should provide for the protection of
the tenants within their jurisdiction and of the villages of
the said Taluka. Whenever the chakars (?)be sent for by  the
huzur, the sardar (?) should appear before him with his men.
If  at  any  place, within their  boundary  limits,  murder,
disturbance,  dacoity, theft, highway robbery etc., be  com-
mitted,  and  the culprit be traced or be  found  conspiring
advisedly  with any one and the Government work suffer,  and
proper  punishment be meted out after inquiry, they will  be
responsible (?) by virtue of their
76
position, and will be dismissed from their post and will not
be  reinstated (unintelligible). The amlas of the  zamindars
of  the  said Taluka should on knowing  the  said  istimrari
mukarrari  rent to have been fixed, continue to receive  the
mukarrari rent from year to year and should not demand  even
a  farthing in excess. They should treat this as  peremptory
and act as written herein.
    Dated the 25th Shanwal, 17, corresponding to the 7th Pus
Bangla, 1183 Fasli.
             Endorsement.
    Taluka Kakwara, pargana Danda Sukhwara, appertaining  to
Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the  province
of  Bihar,  is let out in perpetual mukartari,  without  any
objection  or contention, to Rankoo Singh and Bhairo  Singh,
Ghatwals,  at  a  fixed jama of Rs.  245-12-15  (rupees  two
hundred  and fortyfive, annas twelve and gandas fifteen)  in
current  coins  as specified below,  consolidated  from  all
sources,  including malwajhat, sair-wajhat, and all  grains,
excluding the perquisites of the zamindari, nankar, Chaudhu-
ris  and Kanungos, expenses of the said Taluka, lands  given
in  charity,  (e.g.)barhmotar,  shibotar  and   Bishun-parit
lands,  jagir lands of jagirdars,  bargandazes,  dhupars(?),
maimas (?), etc.
  Fixed jama.
  Rs. 245-12-15 gandas."
" Then followed the specification of 22 Mouzas or  villages.
It  will be noticed that the grant was made to Rankoo  Singh
and Bhairo  Singh described as "ghatwals of the said  Taluk"
which suggests that those two persons were already Ghatwals.
The duties generally imposed on the grantees and in particu-
lar the duty of providing protection for the tenants and  of
appearing before Huzur with his men did not, in the words of
Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra)
at  p. 46, "go beyond duties then  ordinarily discharged  by
Zamindars." There was no stipulation either in the main body
of
77
the grant or in the endorsement at the foot for  maintaining
a  regular body of a definite number of archers and  barkan-
dazes  such as is to be usually found in  ordinary  Ghatwali
grants  and  indeed such as is in fact to be  found  in  the
subsequent grant of Raja Kadir Ali with respect to this very
Taluk  Kakwara.  Finally, the admonition at the end  of  the
principal  paragraph  to the amlas of the Zamindars  of  the
said  Taluk  to receive the fixed mukarrai rent and  not  to
demand  even  a farthing in excess may well be  regarded  as
indicating  that the Zamindar was really interested  in  the
grant.   In  the premises, the observation  of  the  learned
Judges  of the High Court of Calcutta in Munrunjun Singh  v.
Raja  Lelanund (supra) at page 85 that the Sanad of  Captain
Browne  seemed  to them "to be rather a confirmation  of  an
existing  tenure than the creation of a new one" appears  to
have  considerable  force. This view of the matter  will  be
quite consistent with the subsequent history of the  Kakwara
Ghatwali which will be presently related.
    It  is,  however, pointed out that at the date  of  this
Sanad there was in fact no Raja of Karakpur and that as  the
Mahalat was being administered and managed by Captain Browne
on  behalf of the East India Company the grant made  by  him
must be taken as creating a Government Ghatwali tenure.  The
Seal  at  the top of the Sanad is said to indicate  that  in
granting  the Sanad in his capacity as Sardar of the  Jungle
Terai  Captain  Browne was acting for and on behalf  of  the
East  India Company. The Sanad was addressed to the  present
and  future  Mutasaddis of  affairs,  Chaudhuris,  Kanungos,
Zamindars  and Ghatwals of Pargana Danda Sukhwara and it  is
urged  that if Captain Browne had been acting on  behalf  of
the  Zamindar  of  Kharakpur, addressing the  Sanad  to  the
Zamindars  would have been wholly inappropriate.   The  fact
that  the grant was to commence from the beginning  of  1184
Fasli  also militates against its being only a  confirmation
of  a  pre-existing Ghatwali tenure. The  direction  to  pay
according to the Kabuliat, year after year, crop after crop,
into the Government treasury clearly suggests
78
that the Sanad created a Government Ghatwali tenure. In  the
Moghul period there was no fixity of the jama and the grants
were  made annually and the jamas were liable to be  varied.
The  provision of a fixed annual jama in this Sanad  cannot,
therefore, it is argued, be regarded as a confirmation of an
existing  grant  on a fixed jama. Taking all  these  matters
into  consideration Shearer and Chatterjee JJ. came  to  the
conclusion  that under Captain Browne's Sanad of 1777  Taluk
Kakwara became a Government Ghatwall. This line of reasoning
is  not without force or cogency although it may not  neces-
sarily be conclusive, for Captain Browne, undoubtedly acting
for the East India Company, might well have issued the Sanad
during the period of interregnum. on behalf or in the inter-
est  of  whoever  might eventually become  the  Zamindar  of
Kakwara.  If  the  matter rested only with  this  Sanad  and
nothing further had happened then perhaps it might have been
said with some plausibility that a new tenure was created by
the  ruling power by this Sanad, but the matter does not  in
fact  rest with only Captain Browne's Sanad, and we have  to
see how this Taluk Kakwara has been subsequently dealt  with
and what effect the subsequent events have on the status and
rights of the Ghatwal of this Taluk.
    It appears that in 1780 the East India Company  restored
Mahalat Kharakpur to Kadir Ali, the grandson of the  deposed
Raja Mozaffar Ali.  Although the formal order of the  Gover-
nor-General came in 1781, the Mahalat was actually  restored
to  Raja Kadir Ali in 1780. At that time Raja Kadir Ali  was
only  a boy of five or six years of age and  Mr.  Cleveland,
the  Collector of Bhagalpur, managed Mahalat  Kharakpur  for
and  on behalf of the minor Raja Kadir Ali.  On January  17,
1780, a fresh Sanad (Exhibit 1 (a)) was granted in the  name
and  under the Seal of Raja Kadir All to the same  two  per-
sons, Rankoo Singh and Bhairo Singh, in the following  terms
:--
    "(Seat  of Raja Qadir Ali, under Emperor Shah Alam,  the
Victorious--1193).
79
       Know ye, the present and future mutasaddis of affairs
and the gumashtas holding the posts of Chaudhuris and Kanun-
goes  of Pargana Danda Sukhwara appertaining to mahals  Kha-
ragpur, Sarkar Monghyr, in the Province of Bihar.
  The Ghatwali service tenure of Taluka Kakwar  appertaining
to  the   said pargana is held, under a   Sanad,  by  Bhairo
Singh  and  Rankoo Singh, with 177  musketeers  and  archers
including sardars, on the condition of allegiance and loyal-
ty  to  the Sarkar.  Of late also, (the said  tenure)  being
upheld  and kept intact as usual, according to the  endorse-
ment, is assigned and granted with effect from the beginning
of the Kharif season of 1189 Fasli Rajwara corresponding  to
1188  Fasli Mughlana.  They should discharge the duties  and
obligations  with honesty and fidelity and keep the  tenants
pleased and contented with their good treatment, and  should
watch  the ghats and chaukis very carefully and  cautiously,
so that no thief and night robber may come around and  about
them.   If, God forbid, the properties of any one be  stolen
or plundered and cattle be concealed or murder be  commited,
they  should  trace the thieves and night robbers  with  the
properties  intact, restore the properties to the owner  and
produce  the party of the mischief mongers before the  Huzur
and  prove  the murder. In case they fail to  find  out  the
thieves and to prove the murder and the concealment  (theft)
of cattle, they should hold themselves responsible therefor.
They  should continue to pay the quit-rent to the Sarkar  as
usual.  When summoned, they should appear before  the  Huzur
with the body of men. It is desired that you should consider
them  as permanent Ghatwals of that place and maintain  them
in  their possessions and you should not fail to give  'them
sound  advice so as to ensure by all means the advantage  of
the Sarkar and the well-being of the tenants. Treat this  as
peremptory and act accordingly.
   Dated,  the 17th seventh (sic) day of the holy  month  of
Muharram of  year 22, corresponding to
194 A.H.
80
Endorsement
    The  Ghatwali service tenure of taluka Kakwara.  Pargana
Danda  Sukhwara,  is granted as before to Rankoo  Singh  and
Bhairo  Singh  with  172 Musketeers  and  archers  including
sardars  with effect from the beginning of the karif  season
of 1189 Fasli, Rajwara, corresponding to 1189 Fasli  Mughla-
na,  on the condition of allegiance and loyalty to the  Sar-
kar.
Above-named persons (sic)--7   172
Musketeers and Archers--165
Rs.a.d.
                                                          245-12-1
5
Fixed perpetual quit rent ...
                                                          215-
0-15
Rent             ...
Zamindari
30-12- 0
Rs. a. d.                            Rs. a.d.
By  Bhairo  Singh   178- 3- 5         By  Rankoo  Singh  ...
67-9-10)
                 155-14-15            Rent                ..
59-2- 0
Rent      ...
Zamindari   ...     22-  4-10           Zamindari        ...
8-7-10."'
    Then  followed  a list of 16 Mauzas given in  Jagir.  If
Taluk  Kakwara  was,  in its origin,  a  Zamindari  Ghatwali
created by the Zamindar of Kharakpur and if Captain Browne's
Sanad only confirmed that existing tenure during the  inter-
regnum  when he was in charge of the entire Mahalat of  Kha-
rakpur  and managed it on behalf of the East  India  Company
but in the interest of whoever eventually became the Raja of
Kharakpur, then on the restoration of the Zamindari to  Raja
Kadir Ali he would naturally clarify the position and status
of  the Ghatwals under him by issuing fresh Sanads in  their
favour.  In this view of the matter Raja Kadir  Ali's  Sanad
only  regularised the original status of Taluk Kakwara as  a
Zamindari  Ghatwali  tenure and specified  the  terms   more
clearly and explicitly.
    It  is,  however, contended on behalf of  the  appellant
that the Sanad of Captain Browne created a Government  Ghat-
wali tenure and Raja Kadir Ali's Sanad was nothing more than
a confirmation of that Government Ghatwali tenure.  Reliance
is  placed on the inscription in the seal at the  top  which
refers  to Emperor Shah Alam the Victorious and it  is  con-
tended that this clearly indicates that this Sanad was also
81
intended  to be a Government grant. We are unable to  accept
this contention as sound. The reference to Emperor Shah Alam