THAKUR RUDRESWARI PRASAD SINHA v. SRIMATI RANI PROBHABHATI AND OTHERS
Citation: [1952] 1 S.C.R. 64; 1951 INSC 50
Court: Supreme Court of India
Bench: M. PATANJALI SASTRI , BIJAN KUMAR MUKHERJEA, SUDHI RANJAN DAS, VIVIAN BOSE
Judgment date:
Case summary
1951 INSC 50. Supreme Court of India judgment dated 1951-10-26. THAKUR RUDRESWARI PRASAD SINHA v. SRIMATI RANI PROBHABHATI AND OTHERS. Read the judgment and...
Judgment text
1951 Collector of Bombay v. Municipal Cor- poration of the City of Bombay and Others. 1951 Oct. 26. 64 SUPREME COURT REPORTS [1952] is not being invoked here as in that case, to clothe a person with title which he cannot acquire except by the pursuit of or in conformity with certain legal forms. Here, as pointed out already, the Corporation became the full and absolute owner of the site on the lapse of 60 years from the date of the grant. Appeal dismissed. Agent for the appellant: P. A. Mehta. Agent for the respondent : R. A. Govind. THAKUR RUDRESW ARI PRASAD SINHA v. SRIMATI RANI PROBHABHATI AND OTHERS [PATANJALI SASTRI, MuKHERJEA, S. R. DAs and VIVIAN BosE JJ. J Ghatwali tenures-Nature and incidents-Alienability of Ze1nin- dari Ghatwalis-Taluka Kakwara whether alienable. Taluk Kakwara was in its origin a Zemindari Ghatwali tenure and continued to be so, and was in fact treated as such ever since.
Even if by virtue of Captain Browne's Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali or after the Permanent Settlement at any rate, it be- came a Zemindari Ghatwali and as ·such alienable with the consent of the Zamindar according to the custom of Kharakpur judicially recognised. [Nature and incidents of Ghatwali tenures discussed] . . CIVIL APPELLATE JURISDICTION : Civil Appeal No. 75 of 1950. Appeal from Judgment of the High Court of Judicature at Patna dated 22nd November, 1944, in Appeal No. 238 of 1940 arising out of order dated 13th July, 1940, of the Subordinate Judge of Bhagalpur in Mis. Case No. 174 of 1939. The facts of the case appear from the judgment. The appeal was originally preferred to the Privy Council and was subsequently tranferred and heard by the Supreme Court. N. C. Chatteriee (B. Sen, with him), for the appellant. B. C. De (Ragunath ]ha, with him) for the respondents. . , S. C. R. SUPREME COURT REPORTS 65 1951. October 26.
The Judgement of the Court was delivered by DAs. J. -This appeal has come up for hearing before us on transfer from the Privy Council. The appellant is the present holder of Taluk Kakwara- which apper- tains to Mahalat Kharakpur. The respondents represent the Banaili Raj which has ·also acquired the Mahalat of Kharakpur. The respondents obtained a decree for Rs. 11;587-14-6 against the appeallanti for arrears of rent and cess and applied for execution of their. decree by the attachment and sale of Taluk . Kakwara. On August 29, 1939, the appellant judgementi-Oeb~or filed an objection under section 47 of the Code of Civil Pro- cedure alleging that· as Taluk Kakwara was held on Gh - pp. 50-51 :- - "In itself 'ghatwal' is a term meamng an office held by a particular person from time to time, who is bound to the performance of its. duties, with a con- sideration to be enjoyed in return by the incumbent of the office. Within this meaning the utmost variety of conditions may exist.
There may be a mere personal con- tract of employment for wages, which take the form of the Use of land or an actual estate in land, heritable and perpetual, but conditional upon services certain or ·ser- vices to be demanded. The office may be public or pri- vate, important or the reverse. The Ghatwal, the guard of the pass may be the bulwark of a whole countryside against invaders; he may be merely a sentry against petty marauders; he may be no more than a kind of game-keeper, protecting the crops from the ravages of wild animals. Ghatwali duties may be divided into police duties and quasi-military duties, though both classes have lost much of their importance, and the t ) S. C. R. SUPREME COURT REPORTS 71 latter in any strict from are but rarely rendered. Again, the duties of the office may be such as demand per- sonal discharge by the Ghatwal and personal compet- ence for that discharge; they may, on the other hand, .
be such as can be discharged vicariously, by the crea- tion of shikmi tenures and by the appointment and maintenance of a subordinate force, or they may be such as in their nature only require to be provided 1 for in bulk. . It is plain that where a grant is forthcoming 'to a man and his heirs as Ghatwal, or is to be pre- smped to have been made though it may have since been lost, personal performance of the ,ghatwali services is not essential so long as the grantee is . responsible for them and procures them to be rq1dered: Shih Lal Singh v. Moorad Khan, (1868) 9 Suth. W. R. 126. " Then his Lordship pointed out that the superior who appointed the Ghatwal might be the ruling power over the country at large, the landholder responsible by custom for the maintenance· of · security and order within his estates, or simply the private person, to whom the maintenance of watchmen was, in the case of an extensive property, important enough to require the creation of a regular. office.
Although personal . service by the employee and personal selection and appointment by the employer might have been ordi- narily essential incidents of the relationship, yet it was not invariably so as appears from the last quotation as well as from the following passage in the judgment by Lord Sumner at p. 52 :- · "On the other hand, there· are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcoming, either regularly or when required; services, it _is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted. In such cases the ghatwali . tenure, even if not" originally granted as heritable, easily becomes so, and is com- monly found on the death of an incumbent of the 1951 Thakur Rudreshwari Prasad Sinha v. Srimati Rani Probhabhati and others. Das/.
1951 Thakur Rudreshwari Prasad Sinha v. Srimati Ran£ Probhabhati and others. Das f. 72 SUPREME COURT REPORTS [1952] office to descend to some member of his family, if not necessarily to the senior member. Thus in Kharakpur ghatwals have a perpetual hereditary tenure at a fixed jama: Munrunjun Singh v. Lelanund Singh. " The requirement of rendering of services by a Ghat- wal naturally gave ris,e to a further incident of such a tenure, namely, the inalienability of the Ghatwali lands, for an alienation of the Ghatwali lands might easily deprive the Ghatwal of the whole of the means provided to enable the services to be rendered. This consideration peculiarly applied where the superior, by whom the Ghatwals were appointed and of whom the Ghatwali lands were held was the ruling power itself.
As has already been stated above, the rigour of this incident of inalienability had, however, in the case of Kharakpur Zamindari Ghatwalis, given way to- custom recognised as well established in the case of Kali Pershad v. Anund Roy (supra), which has been repeatedly followed and applied in India without proof of the custom being requited over again.
· From what has been stated above, it cle~rly follows that Ghatwali tenures originated during the Moghul period, that although the services included , police duties, they were in their origin just as much of a· military as a civil character and that the tenure could be granted by the ruling power directly to the Ghatwal who was to render the services so as to establish a direct privity between the ruling power and the Ghatwal or it could be granted by the Zamindar for the protec- tion of his Zamindari or for enabling him to render the police and military services to the ruling power which he was bound to do under the terms of the grant of Zamindari to him. " The question then arises' -which of these categories the Ghatwals of Kharakpur come under. Mahalat Kharakpur was an extensive estate and apparently owed allegiance, real or nominal, to the Moghul Emperor. There is no evidence on record' . ' • ' -.
• showing on what terms the Raja of Kharakpur held' ~ the estate under the Moghuls and it is difficult to say, r ) S. C. R. SUPREME COURT REPORTS 73 with any amount of certainty, what kind or amount of services, police or military, he had to render to the · then ruling power. . It may, however, be safely stated that, like all other Zamintlars; the Raja of Kharakpur had to preserve internal peace and order by maintain-. ing sufficient Thanas or police establishments and to protect the tenants and other inhabitants from the incursions of lawless tribes from the neighbouring hills by providing or arranging for a sufficient military force. It could not be expected that a big Zamindar like the Raja of Kharakpur would render the police or military ~ervices personally and consequently it was natw;-al for him to appoint P. is own Ghatwals to protect his Zamindari and to render services for him to the ruling power. . As said by Lord Kingsdown in Raja Lelanund Singh v.
TM Government of Bengal (supra) at p. 102 it was well established that long before 1765 the Zamindars of Kharakpur had created Ghatwali tenures for the purpose of protecting their Zamindaries · from the attacks of mountaineers and other turbulent people in their- neighbourhood. Lord Sumner in Narayan Singh v. Niranjan Chakravarti. - (supra) at p. 68 also recognised that long before 1765 Ghatwali tenure_s under the Zamindar of Kharakpur had been created by the vai:ious holders of those lands for their ow:n purposes and· as late as 1770-1785 Mr. Cleveland, who managed the estate during the minority of Kadir Ali, followed the same· policy. In Narayan Singf! v. Niranjan Chakravarti (supra) at p. 50 Lord Sumner said :- "In the Sonthal Parganas there are for practical purposes three classes of Ghatwali tenures: (a) Govern- ment ghatwalis created by the ruling power; {b) Government ghatwalis, which since their creation and generallY.
at the time of the Permanent Settlement have been included in a zamindari estate and formed into a unit. in the assessment; and (c). zamindari ghat- walis, created by the zamindar ol his predecessors and alienable with his consent. The s,econd of these classes is really a branch of the first. " The question, then, is-to which class the Ghatwali tenure of Taluk Kakwara, with which we are concerned · 1951 Thakur · Rudreshwari Prasad· Sinha v. Srimati Rani Probhabhati and others. ' Das J. 1951 Thakur Rudreshwari Prasad Sinha v . . Srimati Rani Probhabhati . and others. Das]. 74 SUPREME COURT REPORTS [1952] in this case, belongs-whether it was a Government Ghatwali or was one of the many Ghatwali tenures created by the Zamindars of Kharakpur. Happily, we do not have to speculate.
The problem before us is not to infer the true nature and incidents of the original grant which could only be collected from the evidence of what was done and left undone in connection with Taluk Kakwara by the ruling power and its officers. We have in evidence before us the authentic texts of the two Sanads relating to the Kakwara Ghatwali and we also have the provisions of the Permanent Settlement Regulation. The nature and incidents of that tenure must rest upon the true cons- truction and import of those grants as well as on the manner in which it was dealt with at the time of the Permanent Settlement. It will be convenient and useful, at this stage, to give a very short history of, Mahalat Kharkpur and Taluk Kakwara. In 1765 the East India Company secured the Dewani of Bengal, Bihar;. and Orissa from the Moghul Emperor.
The accession of Dewani was in effect a cession of the three provinces and the East India Company virtually became the sovereign ruling power over those territories. At that time one Mozaffar Ali was the Raja of Mahalat Kharakpur. Taluk Kak- wara appertained to Mahalat Kharakpur. In 1766 Raja Mozaffar Ali rose in rebellion against the East India Company. A strong military force under the command of Captain Browne was sent for quelling the revolt. Eventually, in 1768 Raja Mozaffar Ali was subdued and imprisoned. The Raja was deposed and deprived of his estate and the East India Company took direct charge of Mahalat Kharakpur and managed it through its officers until the Mahalat was restored to Raja Kadir Ali, the grandson of Raja Mozaffar Ali. In 1776 Captain Browne, who was then in charge of the Mahalat, granted an Amalnama or Sanad (Exhi- bit 1) in respect of 22 villages to two persons Rankoo Singh and Bhairo Singh at a fixed annual Jama of Rs. 245-12-15.
That Sanad was in the following terms: .. -· : l S. C. R. SUPREME COURT REPORTS 75 "Seal of Captain James Browne, head of jungle- tari (low forest land). Know ye, the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamin. '. " dars and Ghatwals of Pargana Danda Sukhwara, Zila Jangal-tari, appertaining to Kharagpur, Sarkar Monghyr, in the Province of Bihar. From the beginning of 1184 Fasli, Taluka Kak- wara, pargana aforesaid, is let out in perpetual mukar- rari, without any objection or contention, to Rankoo Singh and Bhairo Singh, ghatwals of the said Taluka, at a fixed jama of - Rs. 245-12-15 (rupees two hundred and forty-five, annas twelve and gandas fifteen) in current coins noted in the endorsement, consolidated from all sources, including malwajhat, sair-wajhat and all grains, and excluding the perquisites of the zamin- dari, nankar, chaudhuris and kanungos, parganati expenses, lands given in charity, e. g.
, barhmotar, shibotar and bishunparit lands, aima lands of jagirdars, bargandazes (musketeers), dhupars (?. ), mahus (? ) etc. It is requisite that they shouli:i peacefully cultivate (torn) and pay the Government (torn), according to the kabuliat, year after year and crop after crop, into the Government treasury. They should make such ~ effort . as to increase the cultivation of the. said Taluka from day . to day. They should hold themselves res- ponsible for deficient cultivation. They should keep the tenants pleased and contented with their good ·treatment and should not oppress any one and make excessive demands, They should not fix the allowance of the jagirdars and bargandazes etc. , over and above · the rent. They should bear this in mind. They should provide for the protection of the tenants within their jurisdiction and of the villages of the said Taluka. . Whenever the chakars ( ? ) be sent for by the huzur, the sardar ( ? ) should appear before him with his men.
If at any place, within their boundary limits, murder, disturbance, dacoity, theft, . highway "robbery ·etc. , be committed, and the culprit be· traced or be found cons- piring advisedly with any one ;ind the Gcwernment work suffer, and proper punishment be meted out after inquiry, they will be responsible ( ? ) by virtue of their 1951 T. hakur Rudreshwari Prasad Sinha v. Srimati Rani Probhabhati and others. Das/. 1951 Thakur Rudreshtvari Prasad Sinha v. Srin1ati Rani Probhabhoti and others. Das/. 76 SUPREME COURT REPORTS [1952] position, and will be dismissed from their ·post and will not be re-instated (unintelligible). The amlas of the zamindars of 'the said Taluka should on knowing the said istimrari mukarrari rent to have been fixed, continue to receive the mukarrari rent from year to year and should not demand even a farthing in excess. They should treat this as peremptory and act as written herein. Dated the 25th Shanwal, 17, corresponding to the 7th Pu~ Bangla, 1183 Fasli.
Endorsement. Taluka -Kakwara, pargana Danda Sukhwara, appear- taining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of . Bihar, is let out in perpetual mukar- rari, without any objection or contention, to Rankoo Singh and Bhairo Singh, Ghatwals, at a fixed jama of Rs. 245-12-15 (rupees two hundred and fortyfive, annas twelve and gandas fifteen) in current coins as specified below, consolidated from all sources, including malwa- jhat, sair-wajhat, and all grains, excluding the per- quisites of the zamindari, nankar, Chaudhuris and Kanungos, expenses of the said Taluka, lands given in charity, (e. g. ) barhmotar, s;hibotar and Bishun-parit lands, jagir lands of jagirdars, bargandazes, dhupars ( ? ) , malmas( ? ), etc. Fixed jama. Rs. 245-12-15 gandas. " Then followed the specificatio; of 22 Mouzas or villages.
It will be noticed that the grant was made to Rankoo Singh and Bhairo Singh described as "ghatwals of the said Taluk" which suggests that those two persons were already Ghatwals. The duties generally imposed on the grantees and in particular the duty of providing protection for the tenants and of appearing before Huzur with his men did not, in the words of Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at p. 46, "go beyond duties then ordinarily discharged by Zamindars. " There was no stipulation either in the main body of • )> .. . S. C. R. SUPREME COURT REPORTS 77 the grant or in the endorsement at the foot' for main- taining a regular body of a definite number of archers and barkandazes such as is to be usually found in ordinary Ghatwali grants arid indeed such as is in fact to be found in the subsequent gram of Raja Kadir Ali with respect · to this ·very Taluk . Kakwara. .
Finally, the admonition at the end of the principal paragraph to the amlas of the Zamindars of the said Taluk to receive the {ixed mukarrai rent and not to' demand even a farthing in · excess may well be . regarded as indicating that the Zamindar was rea'Ily interested in the grant. In the premises, the obsel"Vation of the learned Judges of the High Court of Calcutta in Munmnjun Singh v. Raja Lelanund (supra) at page 85 that the Sanad of Captain Browne seemed to them "to be rather a confirmation of an existing tenure than the . creation of a ne\v one" appears to have considerable force. This view of the matter will be quite consistent with the subsequent history of the Kakwara Ghatwali which will be presently related. It is, however, pointed out that at· the ·dat~ of this Sanad there was in fact no Raja of Karakpur and that as the Mahalat was being ·administered and managed.
by Captain Browne on behalf of the East India Com- pany tlr'e grant made by him must be taken as 'creating a Government Ghatwali tenure. The Seal at the ,top of the Sanad is said to indicate that in granting the Sanad in his capacity as Sardar of the ,Jungle Terai Captain Browne was acting for and on behalf of the East India Company. The Sanad was addressed to the-- present. and future Mutasaddisi of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda · Sukhwara ·and it is urged that if Captain Browne had been acting on behalf of the Zamindar of Kharakpur, addressing the Sanad to the Zamindars would have been wholly inappropriate. The fact that the grant was to commence from the beginning of 1184 Fasli also militates against its being only a confirmation of · a pre-existing Ghatwali tenure: The direction to pay according to the Kabuliat, year after year, crop after ~ crop, into the Government treasury clearly suggests j 1951 Thakur . Rudres'hwari Prasad Sinha v.
Srimati Rani Pfobhabhati and others. Das/. 1951 Thakur Rudreshwari Prasad Sinha v. Srimati Rani" Probhabhati and others. Das/. 78 SUPREME COURT REPORTS [1952] that the Sanad created a Government Ghatwali tenure. In the Moghul period there was no fixity of the jama and the grants were made annually and the jamas were liable to be varied. The provision of- a fixed annual jama in this Sanad cannot,· therefore, it is argued, be regarded as a confirmation of an exist- ing grant on a fixed jama. Taking all these matters into consideration Shearer and Chatterjee JJ. came. to the conclusion that under Captain Browne's Sanad of 1777 Taluk Kakwara became a Government Ghat- wali.
This line of reasoning is not without force or cogency although it may not necessarily be conclusive, for Captain Browne undoubtedly acting for the East India ·Company, might well have issued the Sanad during the period of interregnum on behalf or in the interest of whoever might eventually become the Zamindar of' Kakwara. If the matter rested only with this Sanad and nothing further had happened then perhaps it might have been said with some plausibility that a new tenure was created by the ruling power by this Sanad, but the matter does not in fact rest with only Captain Browne's Sanad, and we have to see how this Taluk Kakawara has been subsequently dealt with and· what effect the subsequent events have on the statns and rights of the Ghatwal of this Taluk. It appears that in 1780 the East India Company restored Mahalat Kharakpur to Kadir Ali, the grand- son of the deposed Raja Mozaffar Ali. Although the formal order of the Governor-General came in 178!
, the Mahalat was actually restored to Raja Kadir Ali in 1780. At that time Raja Kadir Ali was only a boy of five or six yearn of age and Mr. Cleveland, the Collector of Bhagalpur, managed Mahalat Kharakpur for and on behalf of the minor Raja Kadir Ali. On January 17, 1780, a fresh Sanad (Exhibit 1 (a)) was granted in the name and under the Seal of Raja Kadir Ali to the same two persons, Rankoo Singh and Bhairo Singh, in the following terms :- "(Seal of Raja Qadir Ali, under Emperor Shah Alam, the Victorious-1193). 1 SUPREMt COURT• REPORT~ 79 Know ye, the present and ·future mutasaddis of affaii:s and the gumashtas holding the · posts of Chaud- huris and Kanungoes of · Pargana Danda Sukhwara: appertaining to mahals Kharagpur, Sarkar · Monghyr, in the Province of Bihar. The Ghatwali service tenure of Taluka Kakwar appertaining to the said pargana.
is held, under a Sanad; by Bhairo Singh and Rankoo Singh, with 172 iμuskeieers ang archers including · sardars, on the con- dition of allegiance. and loyalty to the. Sarkar. Of late also, (the said tenure) being upheld and kept intact as usual, according _ to the endorsement, is assigned and granted with effect from the . f:ieginning of the Kharif season of 1189 Fasli Rajwara corresponding to 1188 Fasli Muglilana. They should discharge the duties and obligations with honesty and fidelity ana· keep the tenants pleased and , contented with their gooo. , treat~ . ment, and should. watch the ghats and chaukis very carefully and cautiously, so that no thief and· night • robber may come around and about them. 1£, God forbid, the properties of any one be stolen or plundered and cattle be concealed or murder be commited, they should trace · the thieves and night robbers with the properties intact, restore the properties to the owne.
i; ·and produce the party of the mischief mongers before the- Huzur and prove the murder. - In case they fail to find out• the thieves and to prc;>ve the murder and the ·concealment (theft) of cattle, · they should hold 'them- selves responsible therefor. ·They ~hould continue tQ\ pay the quit-rent to the Sarkar as usual. When sum- moned, they should appear before the Huzur with the body of med. It is desired that you should consider them· as permanent Ghatwals of that place and main: tain them in their possessions and you should not fail to give them sound advice so as to ensure by all means the advantage of the Sarkar and the well-being of the tenants. Treat this as perempto17 and act accordingly. '· Dated, th_e 17th seventh (sic)' day · of the holy month of Muharram- of year 22, corresponding to- . _J 194 A. H. . . . 6-2 S. C. India/71 ' 1951 T! tak_ur Rudres! twari Prasad Sinha v; Srimaii ·Rani • ProbAabhati '19d others. DM f. 1951 Thakur Rudreshwari Prasad Sinha v.
Srimati Rani Probhabhati and others. Das/, 80 SUPREME COURT REPORTS [19521 Endorsement The Ghatwali service tenure of taluka Kakwara Pargana Danda Sukhwara, is granted as before to Rankoo Singh and Bhairo Singh with 172 Musketeers and archers including sardars with effect from the beginning of the karif season of 1189 Fasli, Rajwara, corresponding to 1189 Fasli Mughlana, on the condition of allegiance and loyalty to the Sarkar. Above-named persons (sic)-7 172 Musketeers arid Archers-J 65 Fixed perpetual quit rent ... Rent Zamindari ' Rs. a. d. 245-12-15 215- 0-15 30-12-0 Rs. ,a. d. Rs. a. d. Jly Bhairo Singh 178- 3- 5 By Rankoo Singh 67-9-10 Rent ... 155-14-15 Rent 59-2-0 Zamindari ... 22- 4-10 Zamindari 8-7-10 Then followed a list of 16 Mauzas given in Jagir.
If Taluk Kakwara was, in its origin, a Zamindari Ghatwali created by the Zamindar of Kharakpur and if Captain Browne's Sanad only confirmed that exist- ing tenure during the interregnum when he was in charge of the entire Mahalat of Kharakpur and managed it on behal£ of the East India . Company but in the interest of whoever eventually became the Raja of Kharakpur, then on the restoration of the Zamindari to Raja Kadir Ali he would naturally clarify the posi- tion and status of the Ghatwals under him by issuing fresh Sanads in their favour. In this view of the matter Raja Kadir Ali's San~d only regularised the original status of Taluk Kakwara as a Zamindari Ghatwali tenure and specified the terms more clearly and explicitly. It is, however, contended on behal£ of the appellant that the Sanad of Captain Browne created a Govern- ment Ghatwali tenure and Raja Kadir Ali's Sanad was nothing more than a confirmation of that Govern- ment Ghatwali tenure.
Reliance is placed on the inscription in the seal at the top which refers to Em- peror Shah Alam the Victorious and it is contended ""'' oru, dmly inillra•u '"" iliIB S~od ~• •I~- ~ 1 S. C. R. SUPREME COURT REPORTS 81 intended to be a Government grant. We are unabie • to accept this contention · as sound. The reference to Emperor Shah Alam the Victorious might be nothing more than a mere formal recognition of a titular . figureshead. The statement that the Ghatwali service tenure of Taluk Kakwara was "held under a Sanad by Bhairo Singh and Rankoo Singh with 172 Musketeers and Archers" etc. may well be taken as referring-to an earlier Sanad which specified the number of Musketeers ·and Archers and need not necessarily refer to Captain ,. _ Browne's Sanad of 1777 in which there was, as has been pointed out, ·no specification of any number of Musketeers and Archers.
·under this Sanad the grantees' tenure commenced from the beginning of the Kharif season of 1189 Fasli, Rajwara, corresponding to 1188 / Fasli Mughfana. This date of commencement of the tenure is· different from the date of . commencement mentioned in Captain Browne's Sanad. In Captain• Browne's Sanad the . fixed Jarμa of . Rs. 245-12-15 was delusive of Zamindari Rasoom whereas under Raja Kadir · Ali's Sanad the . fixed perpetual quit rent of Rs. 245-12-15 was inclusive of Zamindari Rasoom, the rent being Rs. 215-0-15 and Zamindari Rasoom being Rs. 30-12-0. What is still more signi. ficanr · is the ap- portionment of ~he quit nert between the . two grantees which is to be found towards the end of the Sanad. Such an apportionment was wholly inappropriate in the case of a merely confirmatory grant. Again, this grant comprised 16 Mauzas whereas Captain Browne's Sanad covered 22 Mauzas:.
Even the names of many of the 16 Mauzas are not to be found' in the specifica- tion of Mauzas at the end of Captain Browne's Sanad. The further significant fact is that in the 16 Mauzas set out of the foot of Raja Kadir Ali's Sai. tad the two grantees were shown to have different and distinct shares in the . different Mauzas. In some cases, even an entire Mauza was allotted exclusively i:o one or the other. Further, if Captain Browne's Sanad created a Government Ghatwali tenure, it is not intel}igible why Raja Kadir Ali should be called upon to Gonfirm the . grant with which he · was not directly or il;ldirectly r~ II . . . 1951 Thakur Rudrcshwari 1 Prasad Sinha v. Srimati Rani Pr. obhabhati and others. Das /. '1 1951 Thakur Rudrflshwari Prasad . Sinha . v. Srimati Rani Probhabhati and others. Das f. 82 SUPREME COURT REPORTS [1952] concerned.
Again, it is well known tliat at this time 9B of the Ghatwals of· Kharakpur took their , Sanads from Raja Kadir Ali while only three big Ghatwals, namely, those of Lachmipur, Handwa and Chandan Katoria took their Sanads not from Raja Kadir Ali but from Mr. Dickenson who succeeded Captain Browne. This distinction can only be explained on the footing that these 98 Ghatwalis including Taluk Kakwara were in reality Zamindari Ghatwalis while the three bigger Ghatwalis were treated as Government Ghatwalis. The fact that Mr. Cleveland, the Collector of Bhagalpur, was at this time in charge and management of Mahalat Kharakpur, that these 98 Sanads were granted in the name of Kadir Ali during the perio\I of Mr.
Cleveland's management and the fact that ever since 1780 nobody on behalf of the Government has questioned the pro- priety of these Sanads as evidencing a grant of Zamindari Ghatwali clearly establish that Raja Kadir Ali's Sanads really regularised the position and status of these Ghatwals as holding Zamindari Ghatwali tenures and specified the terms on which the tenures were to be thenceforth held. On the other hand, even if it be accepted that Captain Browne's Sanad created a Government Ghatwali tenure then, in the language of Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at p. 54 it might well be said that Raja Kadir Ali's Sanad issued during the time· Mr.
Cleveland, the Collector of Bhagalpur, was manag- ing the Mahalat of Kharakpur, and never objected to or quesitoned at any time thereafter by the Government "amounted to a release by the Government of the Ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint the Ghatwal" and, therefore, the original Government Ghatwali tenure came to an end and a Zamindari Ghatwali tenure took its place. The matter does not even rest with Raja · Kadir Ali's Sanad. In 1789 or 1790 there was a decennial settlement of Mahalat Kharakpur with Raja Kadir Ali which in 1796 was made permanent under the P,rmanent Settlement Regulation I of 1793, As Lord i, S. C. R. SUPREME COURT REPORTS 83 Kingsdown pointed out in R-aja Lelanund S~ngh v. The Government of Bengal (supra) at p. 114, 1t was beyond dispute and indeed fairly admitted that the Ghatwali lands formed part of the Z~indari and were included in and ·covered by the assessment of the Zamindari.
This was recognised by the. High Court ·in Munrunjun Singh v. Raja Lelanund (supra) when they said that ,there was no doubt that the tenure was, at the Permanent Settlement, included in·· the Zamin- dari of Kharakpur and that the Jama was payable to the Zamindar. On appeal, their Lordships of the Privy Council also pointed out -cliat the claim of the Government to resume and reassess the Ghatwali lands was dismissed upon the ground that the Taluk had been assessed to revenue and was a portion of the Mal land of the Zamindar. In Leelanund Singh v. Thakoor Munrunjun Singh (supra) . Garth C. J. at· p. 257 said that there could be no doubt· that at the time of the Permanent Settlement . the Taluk Kakwara formed part of the Kharakpur Zamindari and that the holders of that Taluk were "dependent Talookdars" of that .. . Zamindari. The holders of Taluk Kakwara were certainly nor independent Talookdars because the· Zaμiindar had the beneficial ·interest in the tenure and these tenures were.
never registered as independent Taluks. Lord Sumner described the attempt of Raja Lelanund Singh to recover possession of Taluk I):. akwara as an attempt on his part to resume "his Shikmi Ghatwali lands. " Further, Captain Browne in · his book "India Tracts" published in 1788 had · shown only Luchmipur, Handwa and Chandan Katoria, all appertaining to Purgunnah Kharakpur, as three Ghat" walis under the ·Jungle Terry Collector. Kakwara was not shown in that list... . On February 24, 1860, a list (Exhibit D) of Ghatwali Mahals appertaining to Kharakpur was prepared by the Government showing 98 Ghatwali tenures appertaining to Mahal Kharakpur. Kakwara is item 73 in that list. In 1863, at uhe time of the composition made between the. Government and ~ . the Raja of Kharakpur. another list of Ghatwali Mah. als r. appertaining to Khara~pur was prepared by the 1951 . Thakur Rudreshwi:lri Prasad Sinha v. · . Srimati Rani Probhabhati 7lnd others. Das/. ' 1951 Thakur Rudreshwari Prasad Sinha v.
Srimati Rani Probhabhati and others. Das J, 84 SUPREME COURT REPORTS [1952] Government and Kakwara is item No. 40 in that list. In neither of these lists did Lachmipur, Handwa and Chandan Katoria, which were under the Collector, find a place. Again, the letters from the Collector of Bhagalpur to the Raja of Kakwara written in 1783 and 1808 set out in Lord Kingsdown' s judgment in Raja Lelanund Singh v. The Government of Bengal (supra) clearly show that the Government recognised that the right of appointment and dismissal of a Ghafwal rested with the Raja of Kharakpur. As Lord Kingsdown pointed out in Raja Lela11und Singh v. The Government of Bengal (supra) at p. 114, the Zamindars derived some benefit in money and also had the benefit of the services of the Ghatwals and enjoyed the valuable right of appointing the indi- viduals, who, with the lands, were to take upon them- selves the duties of the office.
If the Ghatwali tenures, created by the Sanad of Raja Kadir Ali were Govern- ment Ghatwali tenures, it is not intelligible how the Zamindar would have the right to appoint or dismiss the Ghatwal. · On a consideration of the facts and the circumstances noted above, we are of opinion that Taluk Kakwara was, in its origin, a Zamindari Ghat- wali tenure and continued to be so and was in fact treated as such down to the present time and further that 'even if by virtue of Captain Browne's Sanad it became a Government Ghatwali tenure, then under the Sanad of Raja Kadir Ali, or at any rate, after the Permanent Settlement, Taluk Kakwara became a Zamindari Ghatwali and as ~uCh alienable with the consent of the Zamindar according to the custom of Kharakpur judicially recognised. It is quite clear to us that the conC\usions arrived at by us are in no way inconsistent with the judicial decisions which have been cited before us. In Raja Lelanund Singh v.
The Government of Bengal (supra) the Government sought to establish their right to resume and assets with revenue Ghatwali lands apper- taining to the Zamindari of Kharakpur. The Govern- ment claimed the right under Regulation I of 1793, section · 8, clause (a), and contended that before the • • • S. C. R. SUPREME COURT REPORTS 85 Permane~t Settlement · the Zamindar used to· appt'. o- priate the product; of the Ghatwali lands in maintaining police establishments and that, as by that . Regulation. the Government undertook the charge of maintaining the p:olice, the lands became liable to resumptfon in addition to the jama assessed on the Zamindari and that the jama assessed on the Zamindari of Kharakpur - did not include any sum assessed in respect of the produce appropriated for the maintenance of the police establishments. There were . eleven suits against 11 Ghatwals.
The R~ja of Kharakpur was not originally made a party to the proce~dings but he was not eventual- ly added as a party on his own application. . In 1885 a final judgment in favour of the Government was pronounced by, the Special Commissioner. The Raja of Kharakpur appealed. The Government claim was · . dismissed on the ground, fjrst, that the Ghatwal~ lands were part of the ·zamindari of Kharakpur and were included in the Permanent Settlement of the Zamin- dari and covered by the jama assessed on that Zamindari and, second, that the lands of Ghatwali tenure were not liable to' resumption under Clause ( 4), section 8, Bengal Regulation I of 1793 as included in allowance made to Zamindars for thana or police establishments. There is not only nothing in the judgment of Lord Kingsdown which militates in any way against ~the view that the Ghatwali tenures apper- · taining to . the Mahalat of Kharakpur wer<; Zamindari Chatwali.
On the other hand, the observations of his Lordship, some of which have been quoted above, dearly iJ1dicate that they were of the nature of Zamin- dari Gha,twali over which the Zamindat . had the right of appointment and dismissal and that they for. med part of the Zamindari and were included in and cover- ed by the assessment of the Zamindari. Munrunjan Singh v. Raja Lelanund. Singh (supra) was a suit by the Zal\lindar of Kharakpur claiming possession of Taluk Kakwara on the allegation that the, 1-- .. J lands were held for ,police services, that the appointment • ·and dismiss~! of Ghatwals rested with· him, that he 1951 • 'Thakur Rudreshwari Prasad ·Sinha v. Srimati Rani Prohhabhati and · ot_her. -. ·--·--- Das-/. r, "·- . : I 1951 1 Thak_ur Rudreshwari Prasad Sinha v. Srimati Rani Probhabhati and others. /Jas J.
( 86 SUPREME COURT REPORTS f 1952] had compounded with the Government for a money pay- ment in lieu of police services which he was bound to render through the Ghatwals and that those services being no longer required, he was entitled to resume the lands. The defences were that the Ghatwals were not lessees liable to ejectment but held a permanent tenure, - that it existed long before the Permanent Settlement . being held at a fixed jama mentioned. in the Sanads derived directly from the representative~ of the British Government and in compensation for services in guarding the mountainous country 9nd the passes which service they were always ready and willing to perform.
If Taluk Kakwara was a Government Ghat- wali, then the Zamindari would have had no locus standi to maintain the suit for possession and the suit should have been dismissed on that short ground, but no such point was seriously taken and the case was fought out and decided on the footing that Taluk Kakwara was a Zamindari Ghatwali. The principal Sudder ·Amin having decreed the suit, the defendant appealed. The High Court held that the contract between the Raja of Kharakpur and the Government without ·authority of the legislature in no way affected the statute and the rights of the Ghatwal and the tenure in dispute was not a mere grant of land in payment of service to be rendered during pleasure but was a per- petual hereditary holding on a fixed jama, leaving a beneficial interest in the Ghatwal with a condition of service annexed. ifhat decision was upheld on appeal by the Privy Council. · The next case concerni'ng this very Taluk Kakwara was Leelanund Singh v.
Tllakoor Munrunjun Singh (supra) which was a suit by the Zamindar of Kharak- pur against the Ghatwal of Kakwara for a declaration of his right to enhance the rent at a rate equivalent to the Ghatwali services which had been rendered unne- cessary. Again, if Taluk Kakwara was a Government Ghatwali, tl1e Raja of Kharakpur would have no locus standi to claim, an enhancement of rent in lieu of the Ghatwali services. This claim of the Raja of Kharakpur was also dismissed. There are positive observations \ ,,_ ' .. -. - , ' r S. C. R. SUPREME COURT REPORTS 87 in this case which indicate that Taluk Kakwara was a "dependent" Taluk or, as Lord Sumner called it, it was a' "Shikmi" Taluk. Learned counsel for the appellant has relied very strongly on two cases, namely, Narayan Singh v. Niranjan Chakravarti (supra) and Rani Sonabati Kuml:lri v. Raja Kitryanand Singh(1). Both the cases related to the Ghatwali of Taluk Handwa. The endea- vour of learned counsel was to show that the Sanad .
of · Captain Browne and the Sanad of Raja Kadir Ali relating to Taluk Kakwara were in their effect the same as the Sanad 0£ Captain Browne and the confir- matory Parwana of Mr. Dickenson, the Collector of Bhagalpur, relating to Taluk Handwa. In Narayan Singh v. Niranjan Chakravarti ·the Subordinate Judge ·held that the tenure of Handwa was not Ghatwali : tenure at all. The High Court, on appeal, held that the parganah was held as a Moghul Ghatwali tenure before cession but that it became a Government Ghatwali and that ·nothing had been done to alter that position .. They were, however, of opinion that Raja Udit ·Narayan 'Singh did not hold it -as Ghatwal and that the heirs of : l)dit Narayan Singh could not impugn the validity of the mortgage created by him. This decision · of the High Court was reversed by ·the Privy Council. In Rani Sonabati Kumari v. Raja Kirtyanand Singh(1) Mr. Justice Faz! Ali elaborately discussed the law . relating· to Ghatwali t~nures.
·'Learned Counsel for the appellant before us has relied on several passages from the judgment of' Lord Sumner and from that of Mr. Justice Faz! Ali. These two decisions must be taken ·as based on the construction of the relevant Sanads, namely, the Sanad of Captain Browne and the Par- wana of Mr. Dickenson and the observations to be found in the judgments in those - two cases must be read in the light of that construction. The position of Taluk Kakwara appears to us to be entirely different from that of · Taluk Handwa. Mr. Justice Shearer in his judgment refers to five points of distinction between ,the position of the two Ghatwals, namely- . (1) · (1935) I. L. R. 14 Patna 70. 19. 51 -- Tliak. iit: Rudresliwari Prasad Sinha . ,. Srimizti Rani . Probhabliati and others. Das/ . l951 Thakur Rudreshwari Prasad Sinha :V- Srimati Rani Probhabhati and others. lJa; /.
88 SUPREME COURT REPORTS [1952] ( 1) The Ghatwals of Handwa never paid any Rasoom on the amount of the land revenue assessed on the lands of Raja of Kharakpur ; (2) The Ghatwal of Handwa formerly used to pay the quit rent directly into the Government treasury ; (3) In more than one list of the Ghatwali tenures under the Kharakpur Raj prepared by the Collectors of Bhagalpur, Handwa was not to 'be found ; (4) After the restoration of Kharakpur Raj, the Ghatwals of Handwa instead of obtaining a Sanad from Raja Kadir Ali obtained a Sanad from the then Collector of Bhagalpur, Mr. Dickenson ; and (5) the claim made by Raja Kadir Ali to appoint a new Ghatwal of Handwa on the occurrence of a vacancy in the office was negatived by the Courts. Likewise, Chatterjee J. in his judgment also points out the essential differences in the status of the two Ghatwals. The language used in the Sanad relating to Taluk Handwa is somewhat different.
There is no question of payment of quit rent to the Zamindar of Kharakpur. Although Handwa was included in the Zamindari of Kharakpur, it was only done so in a geographical sense and for fiscal purposes. The annual jama of Handwa was necer treated as a part of the Mal assets of the Raja of Kharakpur on which revenue was assessed on him. On the contrary, Handwa, was assessed as a separate unit and the assessment was made payable by Handwa to the Government through the Raja of Kharakpur. The Raja of Kharak- pur has ·no beneficial interest either in money or by way of services or any power of appointment or dis- missal over the Ghatwali of Handwa. Learned coun~el for the appellant has relied on several passages in the judgment of Lord Sumner but those passages are susceptible of a meaning which is consistent with the conclusions we have arrived at on a construction of ~· \ • the two Sanads relating to Taluk Kakwara. It is also .
··i to be noted that the appellant judgment-debtor himself l mortgaged this very Taluk Kakwara with the Raja of , .. - . I S;C. R .. SUPREME COURT REPO. RTS 89 Kharalripur on . the allegation _ that ·Taluk Kakwara · was alienable with "the consent of the Zami1c1dar. Ip our judgment the final conclusions arrived at by Mr. Justice Shearer and Mr. Justice Chatterjee are clearly right and this appeal must be dismissed with costs. A ppe(Jl dismissed. Agent for the appellant : I. N. Shroff. Agent for the respondents: S. P. Verma . SRI SANKAR! PRASAD SINGH DEO v. UNION OF INDIA AND ST ATE OF BIHAR (And Other Cases); [HARILAL KANIA c. J. , PATANJALI SASTRI! MuKHE! lJEA, DAs AND CHANDRASEKHARA AIYAR JJ. ] Constitution ·(First Amendment) Act, 1951, Arts, 31A, 31B- Validity-Constitution of India, 1950, Arts. 13(2), 368, 379, 392-Provisional Parliament-Power to amend Constitution- Constitution (Removal of Difficulties) Order Ng.
2 of 1950-Validity -Amendment of Constitution-Procedure-Bill amended by Legis- lature-Amendment curtailing fundpmental rights-Amendment affecting land-Validity of Amending Act. The Constitution (First Amendment) 'Act, 1951, which has inserted, inter alia, Arts. 31A and 31B in the Constitution of India is riot ultra vires or unconstitutional. The provisional Parliament is competent to exercise the power of amending the Constitution under Art. 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses. . The words "all the powers confer{ed by the provisions of this Constitution ori Parliament': in Art.
379 are not confined to such powers as could be exercised by · the provisional Parliament con- sisting of a single chamber, but are wide enough to include the power to amend the Constitution conferred by Art. 368. The Constitution (Removal of Difficulties} Order No. 2 made by the President on the 26th January, 1950, which purports to adapt Art. 368 · by omitting "either House of" and "in each House" and substituting "Parliament" for "that House" is not . 12 1951 . Thakur Rudreshwari Prasad Sinha v. ·srimati Rani Probhabhati and others; 1951 Oct. 5. '1
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