Case ID: 50

Judgment:
Appeal No. 75 of 1950. Appeal from the Judgment of the High Court of Judicature at Patna dated 22nd November	 1944	 in Appeal No. 238 of 1940 arising out of order dated 13th July	 1940	 of the Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939. The facts of the case appear from the judgment. The appeal was originally preferred to the Privy Council and was subse quently transferred and heard by the Supreme Court. N.C. Chatterjee (B. Sen	 with him) for the appellant. B.C De (Raghunath Jha	 with him) for the respond ents. 65 1951. October 26. The Judgment of the Court was deliv ered by DAs J. This appeal has come up for hearing before us on transfer from the Privy Council. The appellant is the present holder of Taluk Kakwara which appertains to Mahalat Kharakpur. The respondents represent the Banaili Raj which has also acquired the Mahalat of Kharakpur. The respondents obtained a decree for Rs. 11	587 14 6 against the appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara. On August 29	 1939	 the appellant judgment debtor filed an objection under section 47 of the Code of Civil Procedure alleging that as Taluk Kakwara was held on Ghatwali tenure it could not be sold in execution of a money decree. This objection was rather too wide	 for all lands held on Ghatwa li tenure were not necessarily inalienable. Indeed	 in Kali Pershad Singh vs Anund Roy(1) which related to the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy Council that the true view to take was that such a tenure in Kharakpur was not inalienable	 and might be transferred by the Ghatwal or sold in execution of a decree against him	 if such transfer or sale was assented to by the Zamindar. A sale at the instance of the Zamindar in execution of a decree for ar rears of rent necessarily implies the existence of such assent. In the later case of Narayan Singh vs Niranjan Chakravarti(2) which related to the Ghatwali Mahal of Hand wa	 Lord Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali Mahal case was fully support ed by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India	 and	 so far as the reports showed	 without proof of the custom being required over again. Lord Sumner	 however	 pointed out that (1) (1887) L.R. 15 I.A. Cal. (2) (1923) L.R. 51 I.A. Pat. 184; A.I.R. (1924) P.C. 5. 9 66 it was plain that as the custom depended on proof	 and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar	 it could have no reference to Ghat wali tenures not under him nor forming part of his Zamind ari. The Privy Council in the later case referred to above saw no ground for thinking that the custom of Kharakpur had any application to Ghatwali tenures	 which	 like Handwa	 were independent of the Kharakpur Zamindari	 even though they might be not far off Kharakpur. In short	 it may be said to be well established and the contrary has not been urged before us that Ghatwali tenures held under the Zamindar of Kharakpur were	 by custom judicially recognised	 alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the Government direct were inalienable. In this state of the authorities	 the appellant judgment debtor on May 31	 1940	 filed a fresh petition of objection under section 47 of the Code claiming that Taluk Kakwara was held under a Government Ghatwali tenure. The principal question for determination in those execution proceedings was whether Taluk Kakwara was a Government Ghatwali	 as alleged by the appellant judgment debtor	 or was a Zamindari Ghatwali held under themselves	 as claimed by the Respondents decree holders. The learned Subordinate Judge held that Taluk Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgment debtor. The judg ment debtor appealed to the High Court. The appeal came up for hearing in the first instance before a Bench consisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the conclusion that Taluk Kakwara was a Government Ghatwali and was inclined to allow the appeal. Shearer J. took the view that while Taluk Kakwara was at one time a Government Ghat wali	 it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal. In view of this difference of opinion the appeal was referred to Chatterjee J	 as the third Judge 67 Chatterjee J. held that Taluk Kakwara was a Zamindari Ghat wali land as such alienable and accordingly dismissed the appeal. The judgment debtor obtained leave to appeal to the Privy Council. As already stated	 the appeal has come up for hearing before us on transfer from the Privy Council. Although the exact origin of the Ghatwali tenures was generally lost in the confusion and obscurity of the trou blous times which preceded the British rule	 the nature of the Ghatwali tenures and their purposes and incidents have been fully established by a series of decided cases. The position of the Zamindars in or about 1765	 when the East India Company secured the Dewani of Bengal	 Bihar and Oris sa	 has been described by the Right Hon 'ble T. Pemberton Leigh (who subsequently became Lord Kingsdown) in his judg ment in the case of Raja Lelanund Singh vs Government Ben gal(1): Many of the greater Zamindars within their respective Zamindaries	 were entrusted with rights	 and charged with duties	 which properly belonged to the Government. They had authority to collect from the Ryots a certain portion of the gross produce of the lands. They	 in many cases	 imposed taxes and levied toils	 and they increased their income by fees	 perquisites	 and similar exactions	 not wholly unknown to more recent times and more civilised nations. On the other hand	 they were bound to maintain peace and order	 and administer justice within their Zamindaries	 and	 for that purpose	 they had to keep up Courts of civil and criminal justice	 to employ Kazees	 Canoongoes	 and Thanahdars	 or a police force. But while as against the Ryots and other inhabitants within their territories	 many of these poten tates exercised almost regal authority	 they were	 as against the Government	 little more than stewards or admin istrators. Their Zamindaries were granted to them only from year to year; the amount of their jumma	 or yearly payment to Government	 was varied	 or might be varied annually; it was an arbitrary sum fixed by the Government (1) (1855) 6 M.I.A. 101 at p. 108. 68 officers	 calculated upon the gross produce of the Zamindary from all sources	 after making an allowance to the Zamindar for his maintenance	 and for the expenses of the collection and of discharging the public duties with which he was entrusted by the Government." Further down his Lordship observed "Besides the disorder which prevailed generally ' 'Besides the disorder which prevailed generally through the Prov inces	 particular Districts were exposed to ravages of a different description. The mountain or hill districts in India were at this time inhabited by lawless tribes	 assert ing a wild independence	 often of a different race and different religion from the inhabitants of the plains	 who were frequently subjected to marauding expeditions by their more warlike neighbours. To prevent these incursions it was necessary to guard and watch the Ghats	 or mountain passes	 through which these hostile descents were made; and the Mahomedan rulers established a tenure called Ghatwali ten ure	 by which lands were granted to individuals	 often of high rank	 at a low rent	 or without rent	 on condition of their performing these duties	 and protecting and preserving order in the neighbouring Districts." This description of the nature and incidents of a Ghat wali tenure was adopted by the High Court Garth C.J. and McDonell J.) in Leelanund Singh vs Thakoor Munranjan Singh(1) which was a case between the respective predeces sors of the parties before us and related to this very Taluk Kakwara. Said the learned Chief Justice at p. 255: "And it is very necessary for our present purpose to bear in mind what was the true origin and nature of these tenures. They were created by the Mahomedan Government in early times	 as a means of providing a police and military force to watch and guard the mountain passes from the inva sions of the lawless tribes who inhabited the hill dis tricts. Large grants of land were made in those days by the Government. (1) Cal. 69 often to persons of high rank	 at a low rent	 or at no rent at all	 upon condition that they should provide and maintain a sufficient military force	 to protect the inhabitants of the plains from these lawless incursions; and the grantees on their part sub divided and re granted the lands to other tenants (much in the same way as military tenures were created in England in the feudal age)	 each of whom	 besides paying generally a small rent	 held their lands in consider ation of these military services	 and provided (each accord ing to the extent of his holding) a specified number of armed men to fulfil the requirements of the Government". As has been said by Lord Kingsdown in Raja Lelanund Singh vs The Government of Bengal (supra) at p. 125 "though the nature and extent of the right of the Ghatwals in the Ghatwali villages may be doubtful	 and probably differed in different districts and in different families	 there clearly was some ancient law or usage by which these lands were appropriated to reward the services of Ghatwals; services which	 although they would include the performance of duties of police	 were quite as much in their origin of a military as a civil character	 and would require the appointment of a very different class of persons from ordinary police offi cers". Accordingly his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held ' by persons of high rank. In Munrunjan Singh vs Raja Lelanund(1) which was also a case between the respective predecessors of the parties before us and related to this very Taluk Kakwa 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) 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 vs 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 vs 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 vs 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 vs 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 vs 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 vs 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 vs 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 vs 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 vs 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 the Victorious might be nothing more than a mere formal recognition of a titular figurehead. The statement that the Ghatwali service tenure of Taluk Kakwara was "held under a Sanad by Bhairo Singh and Rankoo Singh with 172 Musketeers and Archers" etc. may well be taken as referring to an earlier Sanad which specified the number of Musketeers and Archers and need not necessarily refer to Captain Browne 's Sanad of 1777 in which there was	 as has been pointed out	 no specification of any number of Musketeers and Archers. Under this Sanad the grantees ' tenure commenced from the beginning of the Kharif season of 1189 Fasli	 Rajwara	 corresponding to 1188 Fasli Mughlana. This date of commence ment of the tenure is different from the date of commence ment mentioned in Captain Browne 's Sanad. In Captain Browne 's Sanad the fixed Jama of Rs. 245 12 15 was exclusive of Zamindari Rasoom whereas under Raja Kadir Ali 's Sanad the fixed perpetual quit rent of Rs. 245 12 15 was inclusive of Zamindari Rasoom	 the rent being Rs. 215 0 15 and Zamindari Rasoom being Rs. 30 12 0. What is still more significant is the apportionment of the quit rent between the two grantees which is to be found towards the end of the Sanad. Such an apportionment was wholly inappropriate in the case of a merely confirmatory grant. Again	 this grant comprised 16 Mauzas whereas Captain Browne 's Sanad covered 22 Mauzas. Even the names of many of the 16 Mauzas are not to be found in the specification of Mauzas at the end of Captain Browne 's Sanad. The further significant fact is that in the 16 Mauzas set out at the foot of Raja Kadir Ali 's Sanad the two grantees were shown to have different and distinct shares in the different Mauzas. In some cases	 even an entire Mauza was allotted exclusively to one or the other. Further	 if Captain Browne 's Sanad created a Government Ghatwali tenure	 it is not intelligible why Raja Kadir Ali should be called upon to confirm the grant with which he was not directly or indirectly 11 82 concerned. Again	 it is well known that at this time 98 of the Ghatwals of Kharakpur took their Sanads from Raja Kadir Ali while only three big Ghatwals	 namely	 those of Lachmi pur	 Handwa and Chandan Katoria took their Sanads not from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne. This distinction can only be explained on the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger Ghat walis were treated as Government Ghatwalis. The fact that Mr. Cleveland	 the Collector of Bhagalpur	 was at this time in charge and management of Mahalat Kharakpur	 that these 98 Sanads were granted in the name of Kadir Ali during the period of Mr. Cleveland 's management and the fact that ever since 1780 nobody on behalf of the Government has questioned the propriety of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish that Raja Kadir Ali 's Sanads really regularised the position and status of these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth held. On the other hand	 even if it be accepted that Captain Browne 's Sanad created a Government Ghatwali tenure then	 in the language of Lord Sumner in Narayan Singh vs Niranjan Chakravarti (supra) at p. 54 it might well be said that Raja Kadir Ali 's Sanad issued during the time Mr. Cleveland	 the Collector of Bhagalpur	 was managing the Mahalat of Kharakpur	 and never objected to or questioned at any time thereafter by the Government "amounted to a release by the Government of the Ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint the Ghatwali and	 therefore	 the original Govern ment Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place. The matter does not even rest ' with Raja Kadir Ali 's Sanad. In 1789 or 1790 there was a decennial settlement of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the permanent Settlement Regulation I of 1793. As Lord 83 Kingsdown pointed out in Raja Lelanund Singh vs The Govern ment of Bengal (supra) at p. 114	 it was beyond dispute and indeed fairly admitted that the Ghatwali lands formed part of the Zamindari and were included in and covered by the assessment of the Zamindari. This was recognised by the High Court in Munrunjun Singh vs Raja Lelanund (supra) when they said that there was no doubt that the tenure was	 at the Permanent Settlement	 included in the Zamindari of Kharakpur and that the Jama was payable to the Zamindar. On appeal	 their Lordships of the Privy Council also pointed out that the claim of the Government to resume and reassess the Ghatwali lands was dismissed upon the ground that the Taluk had been assessed to revenue and was a portion of the Mal land of the Zamindar. In Leelanund Singh vs Thakoor Munrunjun Singh (supra) Garth C. J. at p. 257 said that there could be no doubt that the time of the Permanent Settlement the Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of that Taluk were "dependent Talookdars" of that Zamindari. The holders of Taluk Kakwara were certainly not independent Talookdars because the Zamin dar had the beneficial interest in the tenure and these tenures were never registered as independent Taluks. Lord Sumner described the attempt of Raja LelanundSingh to recov er possession of Taluk Kakwara as an attempt on his part to resume "his Shikmi Ghatwali lands." Further	 Captain Browne in his book "India Tracts" published in 1788 had shown only Luchmipur	 Handwa and Chandan Katoria	 all appertaining to Purgunnah Kharakpur	 as three Ghatwalis under the Jungle Terry Collector. Kakwara was not shown in that list. On February 24	 1860	 a list (Exhibit D) of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur. Kakwara is item 73 in that list. In 1863	 at the time of the composition made between the Government and the Raja of Kharakpur. another list of Ghatwali Mahals appertaining to Kharakpur was prepared by the 84 Government and Kakwara is item No. 40 in that list. In neither of these lists did Lachmipur	 Handwa and Chandan Katoria	 which were under the Collector	 find a place. Again	 the letters from the Collector of Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord Kingsdown 's judgment in Raja Lelanund Singh vs The Govern ment of Bengal (supra) clearly show that the Government recognised that the right of appointment and dismissal of a Ghatwal rested with the Raja of Kharakpur. As Lord Kings down pointed out in Raja Lelanund Singh vs The Government of Bengal (supra) at p. 114	 the Zamindars derived some benefit in money and also had the benefit of the services of the Ghatwals and enjoyed the valuable right of appointing the individuals	 who	 with the lands	 were to take upon them selves the duties of the office. If the Ghatwali tenures	 created by the Sanad of Raja Kadir Ali were Government Ghatwali tenures	 it is not intelligible how the Zamindar would have the right to appoint or dismiss the Ghatwal. On a consideration of the facts and the circumstances noted above	 we are of opinion that Taluk Kakwara was	 in its origin	 a Zamindari Ghatwali tenure and continued to be so and was in fact treated as such down to the present time and further that even if by virtue of Captain Browne 's Sanad it became a Government Ghatwali tenure	 then under the Sanad of Raja Kadir Ali	 or	 at any rate	 after the Permanent Settle ment	 Taluk Kakwara became a Zamindari Ghatwali and as such alienable with the consent of the Zamindar according to the custom of Kharakpur judicially recognised. It is quite clear to us that the conclusions arrived at by us are in no way inconsistent with the judicial decisions which have been cited before us. In Raja Lelanund Singh vs The Government of Bengal (supra) the Government sought to establish their right to resume and assess with revenue Ghatwali lands appertaining to the Zamindari of Kharakpur. The Government claimed the right under Regulation I of 1793	 section 8	 clause (4)	 and contended that before the 85 Permanent Settlement the Zamindar used to appropriate the produce of the Ghatwali lands in maintaining police estab lishments and that	 as by that Regulation the Government undertook the charge of maintaining the police	 the lands become liable to resumption in addition to the jama assessed on the Zamindari and that the lama assessed on the Zamindari of Kharakpur did not include any sum assessed in respect of the produce appropriated for the maintenance of the police establishments. There were eleven suits against 11 Ghat wals. The Raja of Kharakpur was not originally made a party to the proceedings but he was eventually added as a party on his own application. In 1885 a final judgment in favour of the Government was pronounced by the Special Commissioner. The Raja of Kharakpur appealed. The Government claim was dismissed on the ground	 first	 that the Ghatwali lands were part of the Zamindari of Kharakpur and were included in the Permanent Settlement of the Zamindari and covered by the jama assessed on that Zamindari and	 second	 that the lands of Ghatwali tenure were not liable to resumption under clause (4)	 section 8	 Bengal Regulation I of 1793 as in cluded in allowance made to Zamindars for thana or police establishments. There is not only nothing in the judgment of Lord Kingsdown which militates in any way against the view that the Ghatwali tenures appertaining to the Mahalat of Kharakpur were Zamindari Ghatwali. On the other hand	 the observations of his Lordship	 some of which have been quoted above	 clearly indicate that they were of the nature of Zamindari Ghatwali over which the Zamindar had the right of appointment and dismissal and that they formed part of the Zamindari and were included in and covered by the as sessment of the Zamindari. Munrunjan Singh vs Raja Lelanund Singh (supra) was a suit by the Zamindar of Kharakpur claiming possession of Taluk Kakwara on the allegation that the lands were held for police services	 that the appointment and dismissal of Ghatwals rested with him	 that he 86 had compounded with the Government for a money payment in lieu of police services which he was bound to render through the Ghatwals and that those services being no longer re quired	 he was entitled to resume the lands. The defences were that the Ghatwals were not lessees liable to ejectment but held a permanent tenure	 that it existed long before the Permanent Settlement being held at a fixed jama mentioned in the Sanads derived directly from the representatives of the British Government and in compensation for services in guarding the mountainous country and the passes which serv ice they were always ready and willing to perform. If Taluk Kakwara was a Government Ghatwall	 then the Zamindar would have had no locus standi to maintain the suit for possession and the suit should have been dismissed on that short ground	 but no such point was seriously taken and the case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali. The. principal Sudder Amin having decreed the suit	 the defendant appealed. The High Court held that the contract between the Raja of Kharakpur and the Government without authority of the legislature in no way affected the statute and the rights of the Ghatwal and the tenure in dispute was not a mere grant of land in payment of service to be rendered during pleasure but was a perpetual hereditary holding on a fixed jama	 leaving a beneficial interest in the Ghatwal with a condition of service annexed. That decision was upheld on appeal by the Privy Council. The next case concerning this very Taluk Kakwara was Leelanund Singh vs Thakoor Munrunjun Singh (supra) which was a suit by the Zamindar of Kharakpur against the Ghatwal of Kakwara for a declaration of his right to enhance the rent at a rate equivalent to the Ghatwali services which had been rendered unnecessary. Again	 if Taluk Kakwara was a Govern ment Ghatwali	 the Raja of Kharakpur would have no locus standi to claim an enhancement of rent in lieu of the Ghat wali services This claim of the Raja of Kharakpur was also dismissed. There are positive observations 87 in this case which indicate that Taluk Kakwara was a "de pendent" Taluk or	 as Lord Sumner called it was a "Shikmi" Taluk. Learned counsel for the appellant has relied very strongly on two cases	 namely	 Narayan Singh vs Niranjan Chakravarti (supra) and Rani Songbari Kumari vs Raja Kirtya nand Singh(1). Both the cases related to the Ghatwali of Taluk Handwa. The endeavour of learned counsel was to show that the Sanad of Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the same as the Sanad of Captain Browne and the confirmatory Parwang of Mr. Dickenson	 the Collector of Bhagalpur	 relating to Taluk Handwa. In Narayan Singh vs Niranjan Chakravarti the Subordinate Judge held that the tenure of Handwa was not Ghatwali tenure at all. The High Court	 on appeal	 held that the parganah was.held. as.a Moghul Ghatwali tenure before cession but that it became a Government Ghatwali and that nothing had been done to alter that position. They were	 however	 of opinion that Raja Udit Narayan Singh did not hold it as Ghatwal and that the heirs of Udit Narayan Singh could not impugn the validity of the mortgage created by him. This decision of the High Court was reversed by the Privy Council. In Rani Sonabati Kumari vs Raja Kirtyanand Singh(1) Mr. Justice Fazl Ali elaborately discussed the law relating to Ghatwali tenures. Learned counsel for the appel lant before us has relied on several passages from the judgment of Lord Sumner and from that of Mr. Justice Fazl Ali. These two decisions must be taken as based on the construction of the relevant Sanads	 namely	 the Sanad of Captain Browne and the Parwang of Mr. Dickenson and the observations to be found in the judgments in those two cases must be read in the light of that construction. The position of Taluk Kakwara appears to us to be entirely different from that of Taluk Handwa. Mr. Justice Shearer in his judgment refers to five points of distinction between the position of the two Ghatwals	 namely (1) Patna 70. 88 (1) The Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of Raja of Kharakpur; (2) The Ghatwal of Handwa formerly used to pay the quit rent directly into the Government treasury; (3) In more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur	 Handwa was not to be found; (4) After the restoration of Kharakpur Raj	 the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali obtained a Sanad from the then Collector of Bhagalpur	 Mr. Dickenson; and (5) the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy in the office was negatived by the Courts. Likewise	 Chatterjee J. in his judgment also points out the essential differences in the status of the two Ghatwals. The language used in the Sanad relating to Taluk Handwa is somewhat different. There is no question of payment of quit rent to the Zamindar of Kharakpur. Although Handwa was included in the Zamindari of Kharakpur	 it was only done so in a geographical sense and for fiscal purposes. The annual jama of Handwa was never treated as a part of the Mal assets of the Raja of Kharakpuron which revenue was assessed on him. On the contrary	 Handwa was assessed as a separate unit and the assessment was made pay.able by Handwa to the Government through the Rala of Kharakpur. The Raja of Kharakpur has no beneficial interest either in money or by way of services or any power of appointment or dismissal over the Ghatwali of Handwa. Learned counsel for the appel lant has relied on several passages in the judgment of Lord Sumner but those passages are susceptible of a meaning. which is consistent with the conclusions we have arrived at on a construction of the two Sanads relating to Taluk Kakwa ra. It is also to be noted that the appellant judgment debtor himself mortgaged this very Taluk Kakwara with the Raja of 89 Kharakpur on the allegation that Taluk Kakwara was alienable with the consent of the Zamindar. In our judgment the final conclusions arrived at by Mr. Justice Shearer and Mr. Justice Chatterjee are clearly right and this appeal must be dismissed with costs. Appeal dismissed. N. Shroff.

Summary:
Taluk Kakwara was in its origin a Zemindari Ghatwali tenure and continued to be so	 and was in fact treated as such ever since. Even if by virtue of Captain Browne 's Sanad it became a Government Ghatwali tenure	 then under the Sanad of Raja Kadir Ali or after the Permanent Settle ment at any rate	 it became a Zemindari Ghatwali and as such alienable with the consent of the Zemindar according to the custom of Kharakpur judicially recognised [Nature and incidents of Ghatwali tenures discussed].