HARNAND Vs. KALLOO

JUDGEMENT

(1.) It will be sufficient for the decision of this Letters Patent Appeal to say that after hearing all that could be said on behalf of the appellants, I fully agree with the decision arrived at by my learned brother with the reasons which he has given for that decision. In the course of the arguments my attention was drawn to an unreported decision of this Court F.A.F.O. 135 of 1899 Tota V/s. Sheo Narain, decided on 15 June 1899. I was one of the Judges who decided that case and I wish clearly to state that on a more careful consideration of the question at issue in that case, which was the same as the question at issue in this case, I am not prepared to adhere to what I then said and held. The reason for my decision in that case was mainly that in the record-of-rights prepared in 1890, no mention was made of the right of pre-emption, while there had been mention of the right in the record-of-rights prepared at the Settlement of 1863. From the silence in the record-of-rights of 1890, mainly, and for other reasons I inferred that the entry in the record-of-rights was a" covenant recorded in the year 1863 and that being the case, the covenant could not be considered binding beyond the settlement in the course of which it was made. In that case the attention of the Bench was not drawn to the provisions of the Law in force when the record-of-rights was prepared in 1863, (viz., Reg. VII of 1822) or to the orders of the Board of Revenue under which the record-of-rights of the 1833 Settlement was prepared and to the Law and the further orders in force when the Settlement of 1890 was made. Reg. VII of 1822 Section 9 enacted that it shall be the duty of Collectors on the occasion of making or revising settlements of the Land Revenue to unite with the adjustment of the assessment the object of ascertaining and recording the fullest possible information in regard to landed tenures, the rights, interests and privileges of the various classes of the agricultural community. For this purpose their proceedings shall embrace the formation of as accurate a records possible of all local usages connected with landed tenures etc. The Board of Revenue in their circulars No; 24 of 1888 recalled the attention of Settlement Officers to these rules and laid down that in the first Clause of the wajib-ul-arz there should be recorded the customs relating to pre-emption in the village together with several other customs, and Settlement Officers were directed to confine themselves in the wajib-ul-arz, to a record of such usages and customs which they found to be actually in existence. It was farther ordered that particular care should always be paid to the attestation of the wajib-ul-arz, that the presence of all the parties interested should be secured, and the provisions carefully explained and read over to them, when possible by an English officer. As nothing to the contrary has been shown to us it is only right that we should presume that the record-of-rights, which is before us in this appeal, was prepared in accordance with the law and these instructions specially seeing that it can bear such construction without any violence done to and that it is a record of the custom of preemption found by the Settlement Officer existing when he prepared the record,

(2.) It need hardly be said that if the language of the wajib-ul-arz prevented our forming such an inference, neither the Regulation nor the Circulars could convert what was not a custom into a custom, but as I have pointed out above, this difficulty does not exist in the present case. When the Settlement of 1890 was under preparation Reg. VII of 1822 had given way to and had been repealed by Act No. XIX of 1873.

(3.) Section 62 and following sections of Act No. XIX of 1873 deal with the formation of the record-of-rights (wajib-ul-arz). The section that alone bears upon the immediate point is Section 65.