JAINT SINGH Vs. NAND RAM

JUDGEMENT

(1.) This is an appeal by the defendants and arises out of a suit brought] by the plaintiffs for a declaration that mauza Khururi, a village in Kumaun, wad a pucca khaikari village. The appeal came up for hearing before a Bench of this Court on 24 February 1937 when we remitted certain issues to the lower Appellate Court under Order 41, Rule 25, Civil P.C. That Court has returned its findings and objections have been taken to those findings by learned Counsel for the plaintiffs- respondents.

(2.) Before we discuss the findings and the objections taken to them, it is necessary to state in some detail the nature of the tenure with which we are concerned in the present case. In our former order, quoting from Stowell's Manual of the Land Tenures of the Kumaun Division, we pointed out that there were two distinct tenures which have unfortunately been called by the same name "khaikari" in Kumaun, One class of tenure is what may be called the under, proprietary khaikari, that is pucca khaikari, and the other, the occupancy khaikari or kaohoha khaikari. The first class consists of ex. proprietors who have still got under- proprietary interests in the land and are superior to ordinary occupancy tenants, while the second class consists of mere occupancy tenants. The pucca khaikars are really representatives old proprietors who hold the entire area of the village in virtue of having first reclaim ed it from waste. In olden days the collection of revenue was farmed to influential landholders in the neighbourhood who began to assert rights over the tracts entrusted to them even after the British revenue settlements had been introduced; although their official position as collectors and farmers of revenue was abolished. In course of time they established themselves in a kind of quasi-feudal position as over, lords of the villages of such tracts and were generally known as sayana, and the cultivators continued to pay them various dues in kind or service. These dues were not of the nature of rent and did not imply that the sayana had any proprietary title in the villages; they were really a remuneration for the many services which he could render in deciding disputes or representing the people before higher authorities, and a tribute of respect to his higher birth and position (p. 82 of Stowell's Book). Thus the pucca khaikars had proprietary interest in the land, though they were inferior in rank to the sayana who established themselves as overlords. These pucca khaikars are in all respects equal to proprietors with the exception that they cannot sell their holding and they pay a small sum in addition to the quota of revenue due from the land recorded in their names (Sir Henry Earn-say's Kumaun Report, p. 15). This small sum is paid as malikana to the hissedar. The proprietors or the hissedars have no power to interfere with these khaikars or their land, waste or cultivated (Sir Henry Ramsay's Report p. 16).

(3.) In E.K. Pauw's report on the Tenth Settlement of the Garhwal District, the following passage regarding khaikari tenure has been quoted from Mr. Traill who, it might be mentioned, made a settlement of the Kumaun Division in the year 1817: Where the land granted was already held in property by others, those occupant proprietors, if they continued on the estate, sank into tenants of the new grantee, who, moreover, by the custom of the country, was permitted to take one-third of the estate into his own immediate cultivation or sir, Of the remainder of the estate, the right of cultivation rested with the original occupants, who ware now termed khaikars or occupants is distinction from thatwan or proprietor.