SARDA MAHESH PRASAD SINGH Vs. BADRI LAL SAHU

JUDGEMENT

(1.) This is an appeal by special leave from a judgment and decree of the Court of the Board of Revenue for the United Provinces of Agra and Oudh confirming the appellate judgment and decree of the Court of the Commissioner of the Benares Division, which had decreed the plaintiffs' suit reversing the judgment of the Court of the Collector of Mirzapur which had dismissed the suit. The Robertsgang tahsil of the Mirzapur District in which the property is situated is a scheduled district under the Scheduled Districts Act, 1874, and under the rules for the administration of civil justice made pursuant to that Act, the Court of Collector has power to try and determine suits of every description and is to be considered as the District and principal Court of original jurisdiction, and the Court of the Commissioner of Benares as the highest Court of appeal. It is however provided by R.9, as follows :

(2.) It shall be in the power of the Local Government to refer to the Board of Revenue any case in which the Commissioner, on appeal from the Collector, may have reversed the decision of the lower Court; and the orders of the Board in such case shall be final. In their Lordships' opinion the effect of this rule is to enable the Local Government to constitute pro hac vice the Board of Revenue a Court of second appeal with full appellate jurisdiction. A preliminary objection has been taken that the appeal is incompetent owing to the provision in the rules that the order of the Board is to be final. As to this, it is sufficient to say that these rules do not affect His Majesty's prerogative to grant special leave to appeal, which has been granted in this case. The only question in this appeal is whether the ownership of the unassessed jungle or waste land included in the boundaries of 10 villages in the taluqa Kone is vested in the plaintiffs by virtue of a decision of Mr. Roberts, the Settlement Officer who in 1846 settled the land revenue of the villages with the plaintiffs' predecessors and at the same time recorded the wajib-ul-arz or record of rights in each village, in which case that decision not having been challenged in a civil suit became final. Many other villages in the estate were settled by Mr. Roberts at the same time and in the same way. In some of them the unassessed area was of vast extent and included other still deserted and uninhabited villages which had been inhabited before and may be inhabited again. In the correspondence on this question between the years 1868 and 1880 when Mr. Roberts's proceedings were first formally confirmed, the revenue authorities differed and there has been the same difference of opinion among the revenue authorities who have dealt with this case in the Courts below in the exercise of the exclusive civil jurisdiction conferred upon them as already mentioned. The case has been very fully argued at the Bar, and their Lordships will now proceed to state the conclusion at which they have arrived on a further consideration of the whole question.

(3.) The defendant in the case is the Raja of Agori Barhar in the Mirzapur District of Benares, whose ancestors were proprietors of the Agori Barhar estate until they were dispossessed by Raja Balwant Singh of Benares in the middle of the eighteenth century. While it was in his possession Balwant Singh incorporated in it taluqa Kone which till then had not formed part of the estate. Raja Adil Sahib had rendered good services to the Company in the pursuit of Balwant's son, the well-known Raja Chet Singh and had been granted an allowance of Rs. 8,000 in pargana Agori in recognition of his services by Mr. Warren Hastings in 1781 and restored to possession of his estate. In 1789 Rs. 8,000 was settled with the Raja for his life as the fixed jama or land revenue of the estate. Till then the Raja had been allowed to retain the whole Rs. 8,000 as a malikana jagir, but by this sanad, Rs. 4,000 was resumed and Rs. 4,000 was continued to him as jagir. The 47 plaintiffs in this case claimed to be proprietors and zamindars, being mukad-damidars or muqarraridars in 10 villages which are included in the Kone tahsil of the defendant's estate, and were claimed by them to be their absolute property. They alleged in para. 7 of the plaint that their predecessors were absolute proprietors of the villages from a time antecedent to the assignments of the revenue of taluqa Kone to the defendant's predecessors, because the plaintiffs' predecessors cleared the jungles, and brought the land under cultivation before or after the rights of the defendant were created, or because of the settlement made with the plaintiffs' predecessors by Mr. William Roberts, the settlement officer in or about 1816. His decision in the disputes between the plaintiffs' predecessors and the defendant's predecessor had confirmed the proprietary title of the former, and that decision not having been challenged in a competent Court in a manner allowed by law had become final. They also claimed title by adverse possession for 12 years. They claimed that the defendant was not entitled in any case to recover from the plaintiffs or other persons in respect of the said villages more than the amount fixed in perpetuity by Mr. Roberts in 1846, which amount was confirmed by the Board of Revenue and Local Government in or about 1880. The defendant by his servants had been interfering with their proprietary rights and attempting to realise various kinds of levies and chapar-bandy and kharchary (fees for grass and timber used for thatching).