DOLATSINGHJI JASWANTSINGHJI Vs. KHACHAR MANSUR BUKHAD

JUDGEMENT

(1.) The appellant in these eighteen consolidated appeals is the Ruler of Limbdi State in Kathiawar. The respondents are the mulgametis and landholders in 18 villages of the Khadol Barwala Taluka in Dhanduka in British India, each of the appeals relating to one of the villages. The appellant, as plaintiff in the suits, in substance asks for a declaration that he, and not the defendants, is entitled to be registered as talukdar under the Gujrat Talukdars Act (Bom. Act 6 of 1888), as amended by Act 2 of 1905. On 23 April l928 the Subordinate Judge at Ahmedabad granted the appellant in each suit the declaration asked for. On appeal the High Court of Judicature at Bombay, by an order in each suit dated 9 October 1931, set aside the decrees of the Subordinate Judge and remanded the suits to allow the appellant an opportunity of joining the Government as a party to the claim as regards an agreement dated 12 August 1922, and his absolute ownership of the villages in question within this months, failing which the suits would be dismissed. The present appeals are taken against these orders, and in course of the hearing before the Board the respondents asked for and obtained special leave to cross-appeal in order to enable the case to be heard and decided on the merits in the event of their Lordships setting aside the orders of the High Court. By S.2(1)(a), Gujrat Talukdars Act of 1888, as amended in 1905, "talukdar" is defined as including "a thakur, mehwassi, kasbati, and naik and a mulgameti who holds land directly from Government." The respondents claim to be mulgametis who hold lands directly from Government under the last part of the definition, which was included for the first time by the amending Act of 1905. The appellant admits that they are mulgematis, but disputes that they hold lands direct from Government.

(2.) After the Act of 1905 the mulgametis claimed to be recorded as talukdars in place of the Thakore of Limbdi, and disputes arose, which first came to a head as regards the village Salangpur, which is also one of the villages in Khadol Barwala Taluka and of which the Thakore held a two-thirds share, in a suit instituted by the Thakore in 1914 in the Court of the District Judge of Ahmedabad (No. 3 of 1914), who decided in favour of the defendants, and dismissed the suit on 23 March 1916. The Thakore appealed and on 11 October 1922 the High Court reversed this decision, and held that the mulgametis did not hold direct from Government and that the Thakore was entitled to be recorded as talukdar as regards his share of the village : Dolatsingji Jaswantsingji V/s. Oghad Vira Khachar, 1924 Bom 72. Meanwhile, a few months prior to the decision of the High Court in Dolatsingji Jaswantsingji V/s. Oghad Vira Khachar, 1924 Bom 72, two material events had occurred. On 7 July 1922 the Talukdari Settlement Officer had issued instructions to the Assistant Survey Settlement Officer to enter the mulgametis as talukdars, except where they had sold the right of ownership to the Thakore before 1 June 1921, and directed that transactions respecting the transfers of rights in chouth were to be regarded as not subject to the Gujarat Talukdars Act. The other event was the making of an agreement between the Thakore and the Government dated 8 and 12 August 1922, which is in the following terms:

(3.) With a view to ensure the compilation without dispute of the Settlement Registers in the Limbdi Barwala villages enumerated in para. 8 below of the Dhandhuka Taluka and to obviate all sources of litigation between the parties interested regarding the status of the classes of persons claiming to be 'Mulgametis' the following terms are agreed as between the Thakore Saheb of Limbdi on the one part and Government on the other part : (1) The Thakore Saheb agrees: (a) That the kathis or the Girasias holding Jiwai lands shall be entered as 'Mulgametis' in the Settlement Registers with reference to such holdings except in those cases where a final decision to the contrary has been passed by a Court of law and has been in force up to 1 June 1921, in which case the entry shall be made in accordance with that decision; (b) That the said 'Mulgametis' shall be considered as 'Talukdars' for the purposes of the Gujarat Talukdars Act so far as the Jiwai lands but not the chouth are concerned with effect from 1 June 1921. (2) Government on their part agree: (a) That the chouth shall not be regarded by Government as forming any part of a 'Talukdar's estate' for the purposes of Act VI of 1888 and that no action either direct or indirect shall be taken by the Talukdari Settlement Officer or any other officer of Government in connection with the mortgage alienation or other form of transfer of chouth on the ground that it forms part of such 'Talukdar's estate'; (b) That in any subsequent legislation or amendment of the Gujarat Talukdars Act the Chouth will be definitely excluded from the definition of 'Talukdar's estate' and from the operation of any clauses forbidding mortgage, alienation or other form of transfer; (c) That the 'Mulgametis' shall be regarded as 'Talukdars' so far as their Jiwai lands are concerned with effect from 1 June 1921 and that no action either direct or indirect hereafter be taken by the Talukdari Settlement Officer or any Government Officer either under the Gujarat Talukdars Act or the Land Revenue Code or as a Manager of a Mulgameti estate with a view to declaring invalid mortgages alienations or other forms of transfer of Jiwai lands made previous to the date aforesaid merely on the ground that such transfers are in contravention of S.31 of the Gujarat Talukdars Act, 1888, (d) That this agreement shall not be held by Government to affect the present legal rights of the parties inter se otherwise than as is provided by this agreement or to derogate from the present legal rights which either the Thakore Saheb or the Mulgameties possess in the said villages; (e) That the said Jiwailands shall be regarded as included within the villages on account of which fixed (Udhad) Jama and Local Fund are now paid to Government. (3) The villages to which this agreement applied are as follows: