(2.)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 appertains 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 appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara. On 29/08/1939, the appellant judgment-debtor filed an objection under section 47 of the Code of Civil Procedure alleging that as Taluk Kakwara was held on Ghatwali tenure it could not be sold in execution of a money decree. THIS objection was rather too wide, for all lands held on Ghatwali tenure were not necessarily inalienable. Indeed, in Kali Pershad Singh v. Anund Roy(1) which related to the Ghatwali Mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy council that the true view to take was that such a tenure in Kharakpur was not inalienable, and might be transferred by the Ghatwal or sold in execution of a decree against him, if such transfer or sale was assented to by the Zamindar. A sale at the instance of the Zamindar in execution of a decree for arrears of rent necessarily implies the existence of such assent. In the later case of Narayan Singh v. Niranjan Chakravarti(2) which related to the Ghatwali Mahal of Handwa, Lord Sumner recognised that the decision of the Privy council in the Kharna Ghatwali Mahal case was fully supported by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India, and, so far as the reports showed, without proof of the custom being required over again. Lord Sumner, however, pointed out that it was plain that as the custom depended on proof, and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it could have no reference to Ghatwali tenures not under him nor forming part of his Zamindari. The Privy council in the later case referred to above saw no ground for thinking that the custom of Kharakpur had any application to Ghatwali tenures, which, like Handwa, were independent of the Kharakpur Zamindari, even though they might be not far off Kharakpur. In short, it may be said to be well established and the contrary has not been urged before us that Ghatwali tenures held under the Zamindar of Kharakpur were, by custom judicially recognised, alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the government direct were inalienable. In this state of the authorities, the appellant judgment-debtor on 31/05/1940, filed a fresh petition of objection under section 47 of the Code claiming that Taluk Kakwara was held under a government Ghatwali tenure. The principal question for determination in those execution proceedings was whether Taluk Kakwara was a government Ghatwali, as alleged by the appellant judgment-debtor, or was a Zamindari Ghatwali held under themselves, as claimed by the Respondents decree-holders. 2
The learned Subordinate Judge held that Taluk Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgment-debtor. The judgment-debtor appealed to the High court. The appeal came up for hearing in the first instance before a bench consisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the conclusion that Taluk Kakwara was a government Ghatwali and was inclined to allow the appeal. Shearer J. took the view that while Taluk Kakwara was at one time a government Ghatwali, it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal. In view of this difference of opinion the appeal was referred to Chatterjee J, as the third Judge Chatterjee J. held that Taluk Kakwara was a Zamindari Ghatwali land as such alienable and accordingly dismissed the appeal. The judgment-debtor obtained leave to appeal to the Privy council. As already stated, the appeal has come up for hearing before us on transfer from the Privy council.
Although the exact origin of the Ghatwali tenures was generally lost in the confusion and obscurity of the troublous times which preceded the British rule, the nature of the Ghatwali tenures and their purposes and incidents have been fully established by a series of decided cases. The position of the Zamindars in or about 1765, when the East India Company secured the Dewani of Bengal, Bihar and orissa, has been described by the Right Hon'ble T. Pemberton Leigh (who subsequently became Lord Kingsdown) in his judgment in the case of Raja Lelanund Singh v. government Bengal(1): Many of the greater Zamindars within their respective Zamindaries, were entrusted with rights, and charged with duties, which properly belonged to the government. They had authority to collect from the Ryots a certain portion of the gross produce of the lands. They, in many cases, imposed taxes and levied toils, and they increased their income by fees, perquisites, and similar exactions, not wholly unknown to more recent times and more civilised nations. On the other hand, they were bound to maintain peace and order, and administer justice within their Zamindaries, and, for that purpose, they had to keep up courts of civil and criminal justice, to employ Kazees, Canoongoes, and Thanahdars, or a police force. But while as against the Ryots and other inhabitants within their territories, many of these potentates exercised almost regal authority, they were, as against the government, little more than stewards or administrators. Their Zamindaries were granted to them only from year to year; the amount of their jumma, or yearly payment to government, was varied, or might be varied annually; it was an arbitrary sum fixed by the government officers, calculated upon the gross produce of the Zamindary from all sources, after making an allowance to the Zamindar for his maintenance, and for the expenses of the collection and of discharging the public duties with which he was entrusted by the government.' Further down his Lordship observed 'Besides the disorder which prevailed generally ' 'Besides the disorder which prevailed generally through the Provinces, particular Districts were exposed to ravages of a different description. The mountain or hill districts in India were at this time inhabited by lawless tribes, asserting a wild independence, often of a different race and different religion from the inhabitants of the plains, who were frequently subjected to marauding expeditions by their more warlike neighbours. To prevent these incursions it was necessary to guard and watch the Ghats, or mountain passes, through which these hostile descents were made; and the Mahomedan rulers established a tenure called Ghatwali tenure, by which lands were granted to individuals, often of high rank, at a low rent, or without rent, on condition of their performing these duties, and protecting and preserving order in the neighbouring Districts.' This description of the nature and incidents of a Ghatwali tenure was adopted by the High court Garth C. J. and McDonell J.) in Leelanund Singh v. Thakoor Munranjan Singh(1) which was a case between the respective predecessors of the parties before us and related to this very Taluk Kakwara. Said the learned chief justice at p. 255:- 'And it is very necessary for our present purpose to bear in mind what was the true origin and nature of these tenures. They were created by the Mahomedan government in early times, as a means of providing a police and military force to watch and guard the mountain passes from the invasions of the lawless tribes who inhabited the hill districts. Large grants of land were made in those days by the government. often to persons of high rank, at a low rent, or at no rent at all, upon condition that they should provide and maintain a sufficient military force, to protect the inhabitants of the plains from these lawless incursions; and the grantees on their part sub-divided and re-granted the lands to other tenants (much in the same way as military tenures were created in England in the feudal age), each of whom, besides paying generally a small rent, held their lands in consideration of these military services, and provided (each according to the extent of his holding) a specified number of armed men to fulfil the requirements of the government'. As has been said by Lord Kingsdown in Raja Lelanund Singh v. The government of Bengal (supra) at p. 125 'though the nature and extent of the right of the Ghatwals in the Ghatwali villages may be doubtful, and probably differed in different districts and in different families, there clearly was some ancient law or usage by which these lands were appropriated to reward the services of Ghatwals; services which, although they would include the performance of duties of police, were quite as much in their origin of a military as a civil character, and would require the appointment of a very different class of persons from ordinary police officers'. Accordingly his Lordship found that the office of Ghatwal in the Kharakpur Zamindari was frequently held' by persons of high rank. In Munrunjan Singh v. Raja Lelanund(1) which was also a case between the respective predecessors of the parties before us and related to this very Taluk Kakwara, the High court at p. 86 observed :- 'It appears that there is considerable variety in the tenures known under the general name of Ghatwali in different parts of the country. They all agree in this that they are grants of land situated on the edge of the hilly country, and held on condition of guarding the ghats or passes. Generally, there seems to be a small quit-rent payable to the Zamindar in addition to the service rendered, and with the view of marking the subordination of the tenure. But in some Zamindaries and putnees these tenures are of a major, in others of a minor, character. Sometimes the tenure of the great Zamindar himself seems to have been originally of this character. More frequently large tenures, consisting of several whole villages, are held under the Zamindar.' Further down their Lordships said : 'These inferior Ghatwalis seem to be those in which the Zamindar or ruling power deals direct with the individuals who do the work, assigning them pieces of land in the established villages. The larger tenures were more of the nature of semi-military colonies, where a chief with his followers were settled down in parts of the country so unsafe that it could not be otherwise occupied.' 3
The law relating to Ghatwali tenures has been dealt with at considerable length by Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra). The variety of conditions of service to be rendered by a Ghatwal was thus summed up by his Lordship at pp. 80-51 :- 'In itself 'ghatwal' is a term meaning an office held by a particular person from time to time, who is bound to the performance of its duties, with a consideration 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 pepepersonal contract 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 services to be demanded. The office may be public or private, important or the reverse. The Ghatwal, the guard of the pass may be the bulwark of a whole country side 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 latter in any strict form are but rarely rendered. Again, the duties of the office may be such as demand personal discharge by the Ghatwal and personal competence for that discharge; they may, on the other hand, be such as can be discharged vicariously, by the creation 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 for in bulk. It is plain that where a grant is forthcoming to a man and his heirs as Ghatwal, or is to be presumed 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 rendered: Shib Lal Singh v. Moorad Khan.' 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 ordinarily 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 eases the ghatwali tenure, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the 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 Ghatwal naturally gave rise 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 Petshad v. Anund Roy (supra), which has been repeatedly followed and applied in India without proof of the custom being required over again. 4
From what has been stated above, it clearly 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 protection 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.
(3.)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, 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 Zamindars, the Raja of Kharakpur had to preserve internal peace and order by maintaining 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 services personally and consequently it was natural for him to appoint his 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. The 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 neighborhood. Lord Sumner in Narayan Singh v. Niranjan Chakravarti (supra) at p. 68 also recognised that long before 1765 Ghatwali tenures under the Zamindar of Kharakpur had been created by the various holders of those lands for their own 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 Singh v. Niranjan Chakravarti (supra) at p. 50 Lord Sumner said :- 'In the Sonthai Parganas there are for practical purposes three classes of Ghatwali tenures: (a) government 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 ghatwalis, created by the zamindar or his predecessors and alienable with his consent. The second 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 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 construction and import of those grants as well as on the manner in which it was dealt with at the time of the Permanent Settlement. 5
It will be convenient and useful, at this stage, to give a very short history of Mahalat Kharakpur 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 Kakwara 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 (Exhibit 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: 'Seal of Captain James Browne, head of jungle-tari (low forest land). Know ye, the present and future Mutasaddis of affairs, Chaudhuris, Kanungos, Zamindars and Ghatwals of Pargana Danda Sukhwara, Zila Jungle-tari. appertaining to Kharagpur, Sarkar Monghyr, in the Province of Bihar. From the beginning of 1184 Fasli, Taluka Kakwara, pargana aforesaid, is let out in perpetual mukarrari, 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, sairwajhat and all grains, and excluding the perquisites of the zamindari, 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 should 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 responsible 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 conspiring advisedly with any one and the government work suffer, and proper punishment be meted out after inquiry, they will be responsible (?) by virtue of their position, and will be dismissed from their post and will not be reinstated (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 Pus Bangla, 1183 Fasli. Endorsement. Taluka Kakwara, pargana Danda Sukhwara, appertaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr, in the province of Bihar, is let out in perpetual mukartari, 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 forty-five, annas twelve and gandas fifteen) in current coins as specified below, consolidated from all sources, including malwajhat, sair-wajhat, and all grains, excluding the perquisites of the zamindari, nankar, Chaudhuris and Kanungos, expenses of the said Taluka, lands given in charity, (e.g.)barhmotar, shibotar and Bishun-parit lands, jagir lands of jagirdars, bargandazes, dhupars(?), maimas (?), etc. Fixed jama. Rs. 245-12-15 gandas.'