MAHARAJAH DRIG BIJAI SINGH Vs. GOPAL DATT PANDAY

JUDGEMENT

(1.) IN this case the Plaintiff made a claim to a settlement in virtue of his under-proprietary right, which he describes as that of a "birt zemindar," in twenty-eight villages; but that claim has now been reduced to a claim in respect of two villages and half of a third. It was at first dismissed by the Settlement Officer, on the ground that inasmuch as Plaintiff did not prove that he had been in possession in 1262 and 1263 Fusli-in other words, in the year 1855, the year before the annexation of Oudh-his claim could not be entertained. The Commissioner of Oudh not being satisfied with the decision on this ground, remanded the case; and upon remand, first the Settlement Officer, and secondly the Commissioner, found that the Plaintiff was entitled to the right he claimed, which is sometimes described as a "birt shankallap" right, sometimes as a "shankallap" right (some kinds of shan-kallap being almost identical with that of birt, some being different from it), and an under-settlement was decreed to him. The Judicial Commissioner, in pursuance of a power which he possessed, allowed an appeal to this Board upon a point of law, which he states to be whether paragraph 5 of ruling 5 of the Financial Commissioner, which he sets out, was or was not correct. The ruling is in these terms:

(2.) THEIR Lordships observe that the ruling referred to by the Judicial Commissioner draws a distinction in reference to the application of the term of limitation (as it is called) to birt tenures, and to tenures in the nature of shankallap, which are to some extent different from birt tenures, and are assumed to be held at the option of the talookdar; but their Lordships find no such distinction in the circular of 1861. The words treated as words of limitation in Section 24 apply to all birt tenures. If a shankallap be a birt tenure they apply to it; if it be not a birt tenure they do not apply to it, and it follows that there is no term of limitation in the regulation applicable to shankallaps. But it must be assumed for the present purpose that this is a shankallap to which the term of limitation, as it is called, applies; that is to say, that it is a shankallap of the nature of a birt, which seems to be the effect of all the holdings in this case.

(3.) BUT it has been contended that the disability, which it is said the Plaintiff labours under to prove his title, is not in effect a disability under a Statute of Limitations, but a disability affecting the title itself. Act No. XXVI. of 1866 is relied upon for this purpose. It is entitled, "An Act to legalise the rules made by the Chief Commissioner of Oudh for the better determination of certain claims of subordinate proprietors in that Province;" and it enacts, "Whereas certain rules have been made by the Chief Commissioner of Oudh for the better determination of certain chums by persona possessed of subordinate rights of property in the territories subject to his administration; and whereas it is expedient that such rules shall have the force of law, it is hereby enacted as follows:-1. The rules for determining the conditions to which person possessed of subordinate rights of property to talookas in the territory subject to the administration of the Chief Commissioner of Oudh shall be entitled to obtain a sub-settlement of lands, villages, or sub-divisions thereof which they held under talookdars on or before the 13th day of February, 1856, and for determining the amounts payable to the talookdars by such subordinate proprietors, which rules were made by the said Chief Commissioner, sanctioned by the Governor-General of India in Council, and published in the Gazette of India for September 1st, 1866, and which are published in the schedule to this Act, are hereby declared to have the force of law."