RUDRESHWARI PRASAD SINHA Vs. SMTRANI PROBHABATI

JUDGEMENT

(1.) This appeal by the judgment-debtor arises out of their objection under Section 47, Civil P. C The question for consideration is whether the property in dispute described as Kakwara Ghatwali tenure is liable to sale in execution of a decree for arrears of rent and cess obtained by the landlord respondents. The facts are not in dispute except that there is a serious controversy whether the property in question which will be described hereinafter as Kakwara for the sake of brevity, is merely a zemindary Ghatwali forming part of the estate of the respondent zemindar or is a Government Ghatwali tenure. The respondents are the well-known proprietors of the Banaili Raj and are the owners of the estate Mahalat Kharagpur. Kakwara admittedly forms a part of this estate. The learned Subordinate Judge on a consideration of the documents, which will have to be discussed in the course of this judgment, has taken the view that Kakwara is a zemindary Ghatwali and, therefore, can be sold in execution of the decree, which was obtained by the decree-holder respondents. In the Court below an objection was raised that the judgment-debtor cannot be allowed to raise this question in the present execution proceedings in view of the fact that he did not raise this question in the original suit itself, but the learned Subordinate Judge correctly held that the judgment- debtor can be allowed to raise this question.

(2.) The origin and nature of Ghatwali tenures in the district of Bhagalpur has been considered in a number of decisions, in the Indian Courts and before their Lordships of the Judicial Committee. The classical judgment of Lord Kingsdown in. Raja Leelanund Singh V/s. The Government of Bengal (1854) 6 M. I A. 101 and of Lord Sumner in Satya Narayan Singh V/s. Niranjan Chakravarti A.I.R. 1924 P.C. 5 and the most elaborate judgment of this Court delivered by Fazl Ali J. (now my Lord the Chief Justice) in Sonabati Kumari V/s. Kirtyanand Singh A. I. R. 1935 Pat. 306 are of immense assistance in deciding the question in dispute in the present case, and indeed the observations in 14 Pat. 703 have been freely referred to by the learned advocates on both sides in support of their respective arguments before us.

(3.) Mahalat Kharagpur is an extensive estate in the District of Monghyr, Bhagalpur and the Santal Pargannas. This is a permanently settled estate with a land revenue of Rupees 72,532-5-0 and is borne in the revenue roll of the Bhagalpur collectorate under tauzi No. 445. This estate includes Kakwara which pays annually to the proprietor of Kharagpur estate a fixed sum of us. 245-12-15. We have valuable information regarding Kakwara in some of the Calcutta cases and a case decided by this Court a few years ago, which will be referred to hereinafter. There is also a well-known treatise written by Captain Brown who was an officer of the East India Company through whose sanad the appellant derives his title which contains a thorough description of the jungle tarai districts which were in his charge (in which Kakwara is included) and of the policy which he pursued and the methods which he adopted in the settlement of that area. A brief account of the information that is available regarding the early times will throw some light on the documents exhibited in this case and will enable us to construe these documents which is the task before this Court because after all the real nature of the estate of Kakwara rests upon a true construction and import of these documents which relate to Kakwara.