Lord Atkin - (1.)This is an appeal by special leave from the judgment of the Additional Judicial Commissioner in Baluchistan, in which in the respondents' suit he made a decree declaring their title to and granting them possession of the lands in suit. The appeal raises an important question as to the powers of the British Government over the sub-division of Nasirabad, part of the territory of the Khan of Kalat under a document dated 17 February 1903, purporting to be an agreement made between the Khan of Kalat and Colonel Yate, Agent to the Governor-General in Baluchistan. The agreement was expressed to be subject to the confirmation of the Viceroy and Governor-General in Council, and was duly confirmed on 14 May 1903. The circumstances in which the agreement was made appear to be that for many years part of this district had been irrigated by canals flowing from the Indus, and that arrangements had been made between the Khan and the British Government by which occupiers of land benefited were made subject to a water-tax assessed by British officials, collected by Kalat officials, of which the proceeds were divided equally between the two Governments. This species of dual control naturally proved irksome, and the remedy was found in the agreement in question styled, without prejudice to its accurate description in law, the Treaty of 1903. It is in the following terms : Agreement entered into by His Highness the Khan of Kalat, Mir Mahmud Khan, G.C.I.E., on the one part, and by the Hon'ble Colonel C.E. Yate, C.S.I., C.M.G., Agent to the Governor-General in Baluchistan, on the other part, subject to the confirmation of His Excellency the Viceroy and Governor-General in Council.
(2.)Executed at Sibi on the seventeenth day of February, one thousand nine hundred and three. I. Whereas it has been found by experience to be to the advantage of both the British Government and His Highness Beglar Begi Mir Mahmud Khan, G.C.I.E., Khan of Kalat, that the Niabat of Nasirabad should be exclusively managed by the officers of the British Government, it is hereby declared and agreed as follows : His Highness Mir Mahmud Khan, Khan of Kalat, on behalf of himself and his heirs and successors, hereby makes over and cedes in perpetuity to the British Government the entire management of the Nasirabad Niabat absolutely and with all the rights and privileges, state or personal, as well as full and exclusive revenue, civil and criminal jurisdiction and all other powers of administration, including all rights to levy dues and tolls on the following conditions : (1) That the said Niabat shall be administered, on behalf of the British Government, by or through such officer or officers as the Governor-General in Council may appoint for the purpose with effect from the 1 day of April, one thousand nine hundred and three, or such subsequent date as the Government of India may take it over. (2) That the British Government shall pay to His Highness on the first day of April, one thousand nine hundred and four and thereafter, annually, on the first day of April each year, fixed annual rent of Rs.1,15,000 (one hundred and fifteen thousand.) (3) That the aforesaid sum of Rs.1,15,000 (one hundred and fifteen thousand), shall be paid to His Highness without any deduction of cost of administration. II. The boundary of the Nasirabad Niabat as described by His Highness the Khan of Kalat's Naib, Ghaus Bakhsh in July 1902 is as follows : On the South the Sind Border, on the North, commencing eastwards at the Leni Burj, it runs North-Eastwards along the Mazari border to the Bugti Hills. It follows the foot of these Hills running in a westerly direction to their nearest point to the Shahpur Road near the Manak Garhi Nulla. It then follows this Nulla as far as the Shahpur Road, then follows the Shahpur Road South as far as the Deh Chattan lands (generally known as Dodaika) and then turns West following the boundary of Dodaika to the Nurwah Channel above the point to where the water reaches. It then follows the Nurwah as far as the junction of the latter with the Dur Mohammad Wah, which is shown on most maps as the Shahiwah, a continuation of the main desert canal. From this point it follows the Dur Mohammad Wah right along its course to the West and South-West crossing the railway at mile 368, five miles North of Jhatpat Station, until it meets the line of pillars erected about 4 years ago by the Magassis and Jamalis as their mutual boundary. It then follows this line of pillars Southwards to the Sind border, passing about 500 yards to the West of the point where the Sonwah has been closed. III. Whereas it is possible that the lower portion of the Manjuti lands enclosed by a straight line drawn from the place where the Dur Mohammad Wah crosses the railway, near mile 368, to a point on the Jacobabad-Shahpur Road, 8 miles to the north of where the Dur Mohammad Wah crosses that road may hereafter be brought under irrigation, His Highness the Khan of Kalat hereby agrees, on behalf of himself, his heirs and successors, to make over and cede to the British Government in perpetuity that portion of the Manjuti land in the same manner as the Nasirabad Niabat above referred to, and it is hereby agreed that the British Government shall pay to His Highness annually an additional rent of rupees two thousand five hundred, making a total quit-rent of Rs.1,17,500 to be paid on the first day of April one thousand nine hundred and four and subsequent years. IV. And whereas it is advisable that any further Kalat State lands outside the present boundary of the Nasirabad Niabat which may hereafter possibly be brought under irrigation by branches and extensions from existing British canals should also come under Bristish administration in the same manner as the Nasirabad Niabat above referred to, His Highness the Khan agrees to make over on lease in perpetuity any lands in the Lehri Bhag and Gandawa Niabats that may hereafter be found to be irrigable from existing British canals at a fair quit-rent which can be determined when the surveys have been completed. MIR MAHMUD KHAN CHAS. E. YATE, Colonel. Agent to the Governor-General in Baluchistan. CURZON Viceroy and Governor-General of India. This agreement was ratified by His Excellency the Viceroy and Governor-General of India at Simla on Thursday, this 14 day of May 1903. LOUIS W. DANE, Secretary to the Government of India in the Foreign Department. Over part of the land comprised in the agreement the predecessors of the plaintiffs held proprietorial rights granted to them by the then Khan of Kalat. For the purposes of this case it may be assumed that the grants continued to be of full force up to the date of the agreement. After it had been made the Government of India decided that there should be a settlement of the territory on the lines of the settlement in Sind. A civil servant with experience of Sind, Mr. Smart, was appointed and began work in October 1905, which he completed in April, 1907. The principles to be adopted in determining what existing titles, if any, were to be recognised in the settlement were decided from time to time in the course of the work. The district was treated as divided into two sections, the eastern and the western, the former being better irrigated and more cultivated than the western, in which the lands in suit are situated. This section has an area of about 372,000 acres, of which a large part was waste and uncultivated. In October, 1906 there was a conference between the Agent to the Governor-General and the Revenue Commissioners in Baluchistan and Mr. Smart, in which decisions were made which were carried out in the settlement record, and in respect of which the present dispute arises. It will be convenient to set out in the words of Mr. Smart in his settlement report the principles upon which the settlement proceeded.
(3.)The method of inquiry pursued in the preparation of the settlement records has been the same for the eastern and western sections with one exception. In the eastern section it was considered necessary to make detailed enquiries into all cases where possession of land had been acquired by a doubtful title. The principle which was adopted was as follows: Wherever figures of cultivation for the last 12 years showed that an occupant had cultivated one- third of the holdings he claimed, no inquiry into title was to be made. Inquiries in to title were made wherever this condition was not fulfilled, provided the claim of the occupant had not been established by some previous decisions of competent authority. The principle followed involved a great deal of trouble, and the nature of evidence to be collected was often extremely complicated. In the western section, owing to the existence of old Sanads from His Highness, the Khan of Kalat, it was decided in a note of the conference held on 5 October 1906, between the Hon'ble the Agent to the Governor-Genral, Revenue Commissioner, and myself that the following principles should be employed. The total irrigable lands were to be divided in three classes. "A" lands already irrigated and cultivated (allowing for fallow years) were to be entered in the names of present occupants, provided they showed reasonable title, e. g., continued possession for 12 years. "B" lands commanded by existing canals or zemindari water-courses therefrom, which are in use but not irrigated owing to scarcity of water, were to be entered in the name of claimants showing the best title, on condition that the Sind Fallow Rules will apply to them from the Kharif Season of 1907; a notice was to be served to such claimants informing them that they would be liable to pay assessment in the fifth year, whether they had cultivated the land or not, provided they had not paid assessment once in the past four years. "C" land which is entirely waste or 'Pat' was to be entered as Government unoccupied lands.