MAHENDRANARAYAN ROY CHOUDHURY Vs. ABDUL GAFUR CHOWDHURY

JUDGEMENT

(1.) The suit out of which this appeal arises was brought to recover malikana for the years 1320 to 1331 in respect of the resumed estate No. 4798 of the Bakarganj Collectorate. There were 29 persons interested as co-sharers in the mahal. By certain proceedings, shown by Ex. 7, gross assets of the estate were fixed at Rs. 5,214 odd out of which deduction on account of collection and malikana charges was made to the extent of Rs. 2,003 odd, the net revenue payable to the Government being Rs. 3,200. This mahal, it appears, has been let out from time to time on temporary leases by the Collector, the last of them being from 1 April 1910 to 31 March 1925. The plaintiff claims a 3 annas 11 gandas odd share in the mahal up till 1325 and thereafter another share of 2 annas. It has been found by the lower appellate Court and that finding cannot be challenged here that notice was served upon all the proprietors under Section 10 (4), Regn. 7 of 1822 that on the date fixed none of the proprietors appeared except Barahanuddin the predecessor of defendants 1 and 2 and Ibrahim Chaudhuri the predecessor of defendants 3 to 12 and that they took settlement of the resumed estate for the period mentioned above. They continued to be in possession on payment of Government revenue until they made default some time in the beginning of 1923. The mahal was consequently sold for arrears of revenue under Act 11 of 1859 on 26 June 1923, the sale relating back to 28 March 1923, and was purchased by defendants 13 to 14. The plaintiff's case is that as one of the proprietors ho is entitled to the malikana from the predecessors of defendants 1 to 12 up to the date of the sale and thereafter from the purchasers. He claims malikana from 1320 to 1331 B.S. The sale having taken place some time in the middle of Chaitra 1329 his claim against defendants 1 to 12 is up to that period and his claim against the auction purchasers is from the middle of Chaitra 1329 to the end of Chaitra 1331, the last date of the settlement taken by Barahanuddin and Ibrahim.

(2.) The sole question which has been canvassed in this case is whether the plaintiff is entitled to claim malikana from the auction-purchasers or whether by the revenue sale his right to receive malikana has been extinguished. The two Courts below have differed on this question; the trial Court found for the plaintiff and the learned Subordinate Judge in the appellate Court was of opinion that by the revenue sale the plaintiff lost his right to receive malikana from the purchasers. The point has been argued at great length and it is strange to say that though the decision of this question rests upon an enactment more than a century old there is no decided case exactly in point presumably for the reason that the question admits of no doubt.

(3.) Before proceeding further it may be useful to see what this right of malikana is. It has been defined in numerous cases of which it is enough for our present purpose to refer to the view expressed by the Judicial Committee in Deokur V/s. Man Kuar [1895] 17 All. 1 (at p. 161 of 21 I.A.) where it has been defined as "a grant of a portion! of the revenue in lieu of pre- existing proprietary rights," It is necessary to bear this definition in mind in considering the question at issue. In Section 44, Regn. 8 of 1793, it was defined as "an allowance in consideration of proprietary rights." Origin of this system may be traced to the Moghul period, but it has been recognized by the British Government in the regulations relating to resumed estates not permanently settled under the permanent settlement. Almost the first indication of this right of malikana reserved to the proprietors is to be found in Regn. 8 of 1793 as it originally stood. By that regulation the decennial settlement was proposed and it was enacted that an offer shall first be made to the proprietor or proprietors for the settlement. Section 43 provided that in the event of any proprietor declining to engage for the settlement of his lands at the jama proposed to him the Board of Revenue should fix the jama (by which Government revenue is meant) and the proprietor was to be required to engage for such assessment and in the event of his refusal his lands were to be let in farm or held khas as the Board of Revenue might in each instance think most expedient.