GHANSHAM SINGH Vs. NATHU

JUDGEMENT

(1.) This is a second appeal by some of the defendants out of a very large number against whom a decree, purporting to be one to enforce a malikana charge or allowance, payable by the defendants generally as co-sharers in a certain mahal in the village of Dundheri Khawajgipur, has been passed by both the courts below. The established facts are that in the year 1838, the former proprietors of this village, who were Rajputs by caste, refused to accept the settlement of the village offered to them under the orders of Government; they were therefore excluded from settlement and a settlement was offered to the cultivators of the village generally, whose successors in interest are the defendants in this suit. At the same time Government, proceeding on the principle now recognized by Sections 74 of the United Provinces Land Revenue Act (Local Act No. III of 1901), prescribed a malikana charge of 12 1/2 per cent. on the land revenue as payable by the new proprietary body to the old proprietors who had been excluded from settlement,

(2.) There were new settlements of the village in the year 1867 and in the year 1890. At each of these settlements the right of certain persons, the descendants of the original proprietors prior to the year 1838, to receive a malikana allowance at 12 1/2 per cent. on the land revenue was recognized in the wajib-ul-arz. It is also proved that, as part of the record of proprietary rights in the village prepared at each of these settlements, a khewat malikana has been drawn up in which the names of the persons entitled to a share in the malikana and the sum payable to each of them or to each group as therein specified, are duly recorded. It is not contested that, according to this khewat malikana, the plaintiff Ghansham Singh is entitled to receive an allowance as stated by him in the plaint and we have not been asked to re-consider the claim in the plaint to the effect that arrears of this charge for a period of 11 years prior to the institution of the suit would amount to Rs. 462-5-6. The courts below have allowed simple interest at 12 per cent. per annum on the amount falling due each year and have thereby raised the total claim to Rs. 778-5-3. The decree passed by the court of first instance and affirmed on appeal is a simple money decree for this amount, with future interest, against the whole body of defendants jointly. The appeal before us is by some of the defendants only. It will obviously be necessary for us to re-consider the entire case on the appeal of these defendants and the amended decree which we propose to pass will affect equally those defendants who have not appealed along with the appellants before us. A number of pleas have been taken in the memorandum of appeal raising points which have been dealt with more or less explicitly in the courts below, but there has been no express plea against the order of the courts below allowing interest. For reasons which we hope to make sufficiently apparent, we have allowed this point to be argued, although it was not taken in the memorandum of appeal. The omission, therefore, of the appellants to enter a formal plea in this Court on this point will only affect our order as to the costs of the appeal.

(3.) The first point taken by the appellants would seem to be most capable of accurate statement in the form of an alternative. It is contended that the malikana allowance granted in the year 1888 should be regarded as merely a grant for the period of the settlement then current; along with this it is contended that the evidence on the record as to what was done at the settlements of 1867 and of 1890, does not amount to evidence of a renewal of the malikana for the period of the said settlements. As a sort of alternative to the above it is pleaded that, if the grant made is the year 1838 was a grant in perpetuity, then the rights of the grantees had become extinguished long before the institution of this suit by operation of the Statute of limitation. The contention on this point is based on the fact that in the Indian Limitation Act of 1859 there was no provision analogous to that introduced into subsequent Statutes of limitation, from the year 1871 onwards, which is now to be found in the explanation appended to Article 132 of the first schedule of Act No. IX of 1908. Prior to the passing of the Limitation Act of 1871. a claim to a malikana such as that set up in the present suit was treated as a claim to immovable property, and it was held that in the event of such claim not being enforced within a period of 12 years the right became entirely barred. The courts below have is substance disposed of these alternative pleas together, upon a view which they have taken of the effect of proceedings at the settlements of 1867 and of 1890. One of the contentions before us has been that it does not really matter what was done at those settlements, because in any case the Settlement Officer had no right to fix a malikana allowance in favour of persons not entitled to receive the same. Reference is made to the provisions of Section 74 of the present Laud Revenue Act, and it is pointed out that the right to receive an annual allowance in the form of a percentage on the revenue assessed is only conferred upon a proprietor who is excluded from the settlement at which the allowance is fixed under the provisions of the section. As a matter of fact the question of the position of an excluded proprietor who has once received a malikana allowance under the provisions of this section, or under any analogous provisions of law previously in force, with regard to subsequent settlements is not deal with directly, either by Section 74, or by any other section of the Land Revenue Act. What the Settlement Officer has to do at the beginning of each new settlement is to ascertain the existing proprietary rights in land: if he finds that there is in existence a right to receive a malikana charge, and is of opinion that it has not come to an end with the conclusion of the settlement at the commencement of which it was fixed, he is obviously under an obligation to recognize that right in the papers drawn up by him for the purposes of the new settlement and to take into consideration the existence of the said right in framing his assessment proposals for the mahal concerned. The question really raised by the argument before us is not so much one of law as of the sufficiency of the evidence on this record and the inferences fairly to be drawn from such documents as the wajib-ul-arz and the khewat malikana which have been put in evidence for the settlements of 1867 and 1890. It is not denied that, if at either of these settlements Government fixed a certain revenue demand on this mahal and offered to settle it with the proprietary body, subject to the payment of that demand plus a malikana charge of 12 1/2 per cent in favour of the "descendants of the proprietors who had been excluded in the year 1838, it was within the competence of the Local Government to do this. If, furthermore, the proprietary body accepted the settlements of 1867 and 1890, on the understanding that they became liable from the date of each of the aforesaid settlements to pay a certain sum annually to Government, plus 12 1/2 per cent. on the same to other persons, then the proprietors represented by the defendants in the present suit are and remain subject to that liability. What has really been argued before us is that the papers on this record do not warrant an inference to the effect stated above. The argument is an ingenious one, but does not appear to be of real force. The terms of the wajib-ul-arz, when considered in connection with the khewat malikana prepared at each of the settlements, do seem to bear out the conclusion of fact above stated. It has to be remembered, moreover, that we are dealing with this matter now in second appeal, and that the decision of the courts below does very distinctly proceed upon the basis that the evidence on the record proves that at each of the settlements of 1867 and of 1890, the proprietary body which accepted each of those settlements accepted it subject to the condition that they would also be liable to pay the malikana charge in question, For the purposes of this appeal, therefore, it is quite sufficient for us to say that there is on the record documentary evidence sufficient to entitle the courts below to arrive at the above conclusion. In any view of the case the courts below are right in the decision they have come to, which is to the effect that the right to receive this charge is an existing right, that it was in existence when the Indian Limitation Act of 1871 came into force and has been in existence ever since under the limitation law as amended in subsequent Statutes.