SHAMSHERKHAN Vs. ABDUL WAHID

JUDGEMENT

(1.) MACNAIR , A.J.C. 1. The judgment; in this appeal will govern the disposal of Second Appeal No. 41 of 1927 (Mt. Ashrafbi v. Abdul Wahid). Abdul Wahid is the zamindar of the Gewardha estate. His predecessor, in 1880, executed perpetual leases in favour of Shamshenjhan and Gafoorkhan. In 1902-1903 Gafoorkhan and Abdul Rahman, son of Gafoor Mahomed, were declared to be protected thekadars under the provisions of Section 65-A, C.P. Land Revenue Act 18 of 1881. These thekadars held on small rents, the reason being that they were connexions of the lessor. At the recent settlement the Settlement Officer, purporting to act under the provisions of Section 108, G.P. Land Revenue Act of 1917, enquired into the conditions under which the villages were held and drew up written leases and kabuliyats by which the theka-jamas were enhanced considerably. The thekadars brought suits for declarations that the action of the settlement department was ultra vires. The lower appellate Court directed that these suits should be dismissed; the thekadars have filed second appeals.

(2.) IT was urged before me that the appellants should not be considered to be protected thekadars. Mt. Ashrafbi, the mother of Abdul Rahman who is declared a protected thekadar, was not herself declared protected. The other appellants, it is said, obtained no benefit from the declaration and were not consulted. It is sufficient to say that this argument is not raised by any of the grounds of appeal to this Court and I see no reason for allowing it to be now raised. It is next urged that, since Section 108, Land Revenue Act, authorises proceedings if a thekadar has been declared to be protected under Section 107, Sub-section (1) of the Act of 1917, it did not authorise enquiry where the thekadars had been declared to be protected under the provisions of the former Act. This argument does not appear in the grounds of appeal, and Section 229 of the Act of 1917 states that all rights acquired under the former Act, shall be deemed to have been acquired under the Act of 1917. This ground then fails.

(3.) THE next and the main argument is that the Settlement Officer had no power to vary a valid agreement into which the thekadar and the proprietor entered. Now, Section 65-A of the Act of 1881 authorises the Settlement Officer to declare a thekadar to be protected for the purposes of the section, notwithstanding any contract to the contrary. The declaration involved many substantial changes in the status of the theka-dar; for instance, it materially affected the succession and thus took away rights from persons who would otherwise have inherited leasehold rights. It seems quite clear then that any contracts which existed previously became of no effect in so far as they were inconsistent with the provisions of Section 65-A. The thekadars, after being declared protected, were precluded from applying to the civil Courts to the extent laid down in Section 65-A or by Chap. 9 of the Act of 1917, which modifies the directions of Section 65-A. Under Section 108, Land Revenue Act, then, it was for the Settlement Officer to enquire into the conditions on which the village was held and the theka-jama which was to be paid. It was for that officer to decide how far the agreement between the proprietor's predecessor and the thekadar should be enforced. That officer was to draw up a written lease and kabuliyat, and Clause (4) states that the terms of such lease and kabuliyat shall b8 binding on the parties and shall not be called in question in a civil Court so long as the thekadar remains protected. The civil Courts then have no jurisdiction to question the term3 of the lease and kabuliyat.