RUDRESHWARI PRASAD SINHA Vs. RANI PROBHABATI

JUDGEMENT

(1.) -

(2.) 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 29/08/1939, 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 Ghatwali tenure were not necessarily inalienable. Indeed, in Kali Pershad Singh v. 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 arrears of rent necessarily implies the existence of such assent. In the later case of Narayan Singh v. Niranjan Chakravarti(2) which related to the Ghatwali Mahal of Handwa, Lord Sumner recognised that the decision of the Privy council in the Kharna Ghatwali Mahal case was fully supported 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 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 Ghatwali tenures not under him nor forming part of his Zamindari. 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 31/05/1940, 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. <PG>2</PG>

(3.) 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, with any amount of certainty, what kind or amount of services, 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 sufficient 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 holders 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 Narayan Singh v. Niranjan Chakravarti (supra) at p. 50 Lord Sumner said :- 'In the Sonthai Parganas there are for practical purposes three classes of Ghatwali tenures: (a) government ghatwalis created by the ruling power; (b) government ghatwalis, which since their creation and generally at the time of the Permanent Settlement have been included in a zamindari estate and formed into a unit in the assessment; and (c) zamindari ghatwalis, created by the zamindar or his predecessors 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 in this case, belongs--whether it was a government Ghatwali or was one of the many Ghatwali tenures created by the Zamindars of Kharakpur.