JAGDEO NARAIN SINGH Vs. BALDEO SINGH

JUDGEMENT

(1.) THESE consolidated appeals from seven decrees of the High Court of Patna arise out of the same number of suits brought by the plaintiffs in the Court of the First Subordinate Judge of Patna on the 8th February 1913 under the following circumstances.

(2.) THE plaintiffs are part proprietors of a mahal paying revenue to Government consisting of one mauza named Amarpur Jabar, which bears on the Collector's register No. 9-4377, and is assessed with a jama of Rs. 225, odd annas. The pro forma defendants in the several suits are the co-sharers of the plaintiffs, and own the remaining share of the mahal. The contesting defendants in the suits hold separate lands within the mauza, which in the aggregate amount to a considerable part of the village. In respect of these lands the defendants claim to have acquired either proprietary right by adverse possession, or the right of rent-free tenure-holders, who are known in Bihar as malikanadirs. Sometime before these suits were brought, there appears to have been a Cadastral Survey under Chapter X of the Bengal Tenancy Act (VIII of 1885), and, on the contention of the defendants, they were entered in the Survey Register as malikanadars. The plaintiffs seek in these suits to have it declared that the entry is erroneous, and that the defendants are not entitled to hold the lands in their possession and occupation free of the obligation of paying rent. The Subordinate Judge, upon a careful view of the evidence, came to the conclusion that the defendants were mere tenants, and were liable to pay rent for the lands they hold and accordingly decreed the suits. His decrees were upheld on appeal by the District Judge, but on second appeal they have been reversed by the High Court of Patna and the suits dismissed The appeals to this Board are from the decrees of the High Court dismissing the suits One of the objections to the view taken by the High Court is based on the ground that the learned Judges in entertaining the second appeals had no jurisdiction to set aside the decision of the District Judge on questions of fact in respect of which he concurred with the Court of first instance. This objection is not without force, but, in view of the fact that the learned Judges of the High Court have differed from the lower Courts, not only in the estimate of the evidence, but also with regard to the inferences derivable from documents produced in the case, and other circumstances, their Lordships deem it expedient to deal with the appeals on their merits. It is proved beyond doubt that the village of Amarpur Jabar, together with some other villages which were considered as its dakhili (appurtenant hamlets), were granted free of revenue in the early part of the reign of the Emperor Aurangzeb, surnamed Alamgir, to one Asdulla Chishti, whose name indicates that he belonged to a holy family. They were afterwards con firmed in favour of other members of the family. The villages in question came subsequently into the possession by purchase, of one Khadim Hussain Khan, and he and his successors held the property without question or assertion of right by anybody else until 1838. In that year the East India Company's Government instituted proceedings under Regulation II of 1819, for its "resumption" in other words, to assess and impose revenue upon it. The documents in connection with the resumption proceedings show that the investigation conducted at the time was thorough and covered not only the examination of the title of the possessor of the estate to hold the village revenue free, but included an investigation into the titles of all persons occupying lands on the allegation that they were not liable to the payment of rent. One was the natural, corollary of the other; as the Government claimed the right to assess revenue upon every bigha of land from which the owner derived an income, it was necessary for the purpose of fair assessment to examine the title of every one who claimed to hold any land within the mauza free of rent.

(3.) GIRWAR Singh and Sheo Dayal Singh are the ancestors of the contesting defendants, through whom they claim to have derived their malikanadari right. Before the Settlement Officer, who was engaged in the assessment of the revenue on the village and the enquiry for that purpose into its assets, no person put forward any cairn that he held any land within the mauza adversely to the owner, or had any right therein which absolved him from the obligation of paying rent for the lands is his occupation. Girwar Singh is stated to have been only a servant and Gomashta of the owner, and Sheo Dayal Singh a cultivator. No other right is mentioned. Subsequent proceedings throw further light on the character of the Settlement. The property is situated in the District of Patna; the owner lived in the District of Monghyr. It had consequently been let out in farm to one Asmani Singh and another. It also appears that originally it consisted of three mauzas, i.e., Amarpur Jabar, Amarpur Roop and Jabarpur khas, and that they were amalgamated under the Settlement of 1839, and named Amarpur Jabar. The Settlement with Umatuz Zohra is re-affirmed in accordance with the details given in the rubkari of the 12th August 1839. It is stated: In view of the Aima being a Badshahi grant, this Permanent Settlement is made with the said possessor from 1247 Fasli at a jama fixed with regard to the fullest crop of the land.