GOURI SHUNKER Vs. MAHARAJAH OF BULRAMPORE

JUDGEMENT

(1.) THE broad question raised by this appeal is whether the Plaintiff is entitled to any and what rights in four villages which must be taken to be parcel of the talook of Tulsipore of which the Defendant, the Maharajah of Bulrampore, is now the proprietor as talookdar within the meaning of the Oudh Estates Act, No. I. of 1869.

(2.) THE estate of Tulsipore was formerly the property of one Dirgh Narain Singh, who, it is said, was at the time of the first capture of Lucknow during the mutiny a rebel, and imprisoned in the residency, and afterwards went, still in custody, to the Alumbagh, where he died. His heirs continued in rebellion, and the result was that in 1859 the estate of Tulsipore was created into a talook under the new system, in favour of the Maharajah of Bulrampore, who was allowed to engage for the revenue as talookdar at the summary settlement of that year. His title has since been confirmed in the fullest manner by the Oudh Estates Act, and therefore it must be taken for granted that he is talookdar of all the villages for which he then settled, as included in the talook of Tulsipore.

(3.) AT the summary settlement which the British Government proceeded to make upon the first annexation of the province, the Plaintiff, the mortgagee, applied to have the settlement of these four villages made directly with him. That settlement was not completed until the 4th of June, 1857,--a period very shortly antecedent to that at which British rule ceased for a time in the province of Oudh; and, when made, was made to endure only for the time during which the Plaintiff would be in possession of the villages strictly in the character of mortgagee, that is, only up to the time fixed for the redemption of the mortgage. Then came the mutiny. After that came Lord Canning's proclamation of the 15th of March, 1858, the effect of which has been so often discussed here that it is not necessary more particularly to refer to it. Early in 1859 the Government, having apparently retained during the intermediate period this estate of Tulsipore under some kind of attachment, finally determined to grant it to the Respondent. The sunnud, if any, granted to him is not upon the Record, but it is established that he was admitted to engage for the revenue on the 21st of January, 1859, and that the settlement was completed on the 25th of the following May. The Plaintiff, who was in actual possession of the villages as mortgagee, was dispossessed on the 31st of January, 1859, when, in anticipation of the final settlement, the Maharajah of Bulrampore was put in possession. The Plaintiff subsequently made various attempts to assert his rights, and to recover possession, with which we have on the present occasion no concern; and on the 15th of May, 1866, he was referred to the regular settlement which was afterwards to be made, and told that he must prefer any claim which he could substantiate at that settlement. Accordingly in October, 1870, when the settlement was in progress, he filed his plaint in the present suit. The Plaintiff in terms, asserted proprietary right as mortgagee, and prayed that the regular settlement might be made with him. On the 3rd of March, 1873, the claim was dismissed by the assistant settlement officer, who treated it apparently as one for the direct settlement of a superior proprietary right, and held that, as such, it was barred by the Oudh Estates Act, and the rights which the talookdar had acquired. There was an appeal to the Commissioner of the district, Mr. Capper, and before him the suit assumed the character of one for a sub-settlement of a sub-proprietary right, which it has ever since retained. That it is competent to the Courts to allow a Plaintiff so to modify his claim, was ruled by their Lordships in the case of the Widow of Shunker Sahai v. Rajah Kashi Pershad Law Rep. 1 Ind. Ap. 108.