NAWAB SARDAR NARHARSINGJI ISHVARSINGJI Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) THIS appeal arises in a suit filed by the appellant, who is the Thakor Saheb of Amod in the District of Broach, against the Secretary of State for India in Council. The reliefs prayed for were a declaration that the plaintiff was the full and absolute proprietor of all the roads, tanks and other waste and from interfering with his rights.

(2.) THE grounds on which the reliefs were sought are shortly these:--THE talukdari estate of Amod was a very ancient one descendible according to the rule of primogeniture. Once upon a time the Thakor's ancestors held the gadi of Amod as independent kings but afterwards the Mahomedan and Maratha invasions in Gujarat reduced the size of that kingdom and tributes were exacted from the Thakors of Amod. Before 1817, when the British conquered the territories, the Thakors were paying; to the Peshwa a tribute called the annual jama, which was fixed at about Rs. 8,506, as well as a triennial payment of Rs. 3,000 as peshkush. By the treaty of Poona in 1817 the Thakor's estate as well as the other parts of Gujarat came under the British rule, and the Thakor made to the British Government the same payment which he did to the former Government. After the introduction of the British rule various surveys were made of the Amod Taluka in Broach. But in all of them the Thakor's lands, which consisted of contiguous blocks of lands in twenty-two villages in the district, were kept intact and the Thakor was admitted to be the sole owner and full proprietor of the whole area of the lands in his possession subject only to the payment of the jama and the peshkush. At no time was it suggested that the roads, tanks and other waste lands in these areas belonged to the Government and the Thakor's proprietary rights over them were ot disputed. In 1871 whalukdars' Relief Act (XV of 1871) was passed, the Amod estate was put under the management of a Talukdari Settlement Officer, and during that management the first regular survey came to be made. At that time the suit lands had been distributed in three different talukas in the Broach District, and although Government officers tried to assert the rights of the Crown on all the unoccupied areas in the Thakor's estate, those contentions were ultimately given up. After the passing of the Gujarat Talukdars' Act in 1888 a regular detailed survey of all the lands of the Thakor's estate was made and concluded in about 1914. Some time after that, the revenue authorities took steps to cancel the entries in the survey records relating to waste areas in his estate. THE plaintiff made several representations to the Government, which appointed a committee and finally decided by a Government Resolution of the Revenue Department dated August 25, 1926, that Government did not admit the plaintiff's claim to the proprietary rights over the roads and tanks in his estate. This Government Resolution, according to the plaint, afforded the cause of action for the present suit for a declaration of the plaintiff's title to roads, tanks and all the waste areas in his estate.

(3.) VOLUMINOUS evidence, oral as well as documentary, has been led by both the parties. Before dealing with the evidence it is necessary to describe the nature of the estate held by the Thakors of Amod. There is no doubt that the Amod gadi was one of the old estates enjoyed by the Thakors of Amod since several centuries. The first authentic record to which we have been referred is the treaty of Surat in 1775 between the East India Company and Raghoba Peshwa of Poona printed in volume VII of Aitchison's Treaties. By Article 9 of this treaty Raghoba Peshwa assigned the revenues of Amod and all its districts, among other territories, to the East India Company for meeting the charges of military forces with which he was to be assisted. Thereupon Raghoba ordered the Zamindar of Amod to pay his revenues to the Company. Thereafter in 1782 by a subsequent treaty the East India Company re-transferred those territories to the Peshwa. Just before the Government of the Peshwa was overthrown, some of the territories belonging to that Government including Amod were transferred by the treaty of Poona in 1817 to the East India Company, and the Thakor once more came under the suzerainty of the East India Company and thereafter of the British Crown. At the date of this transfer the Thakor of Amod was paying a tribute for his lands which were known as the lands of wanta tenure. (For a judicial exposition of this tenure see Dolasang Bhavsang v. The Collector of Kmra (1879) I.L.R. 4 Bom, 367, 368-71.) The nature of this tenure is very important for the purpose of deciding the questions involved in this litigation. It is, therefore, necessary to see before proceeding further what exactly is meant by the term "wanta". "Wanta" means a, share and a "wantadar" means a sharer. The term was applied to a part of the lands held in absolute proprietorship by old Rajput Chiefs of Gujarat. The Mahomedans, after their invasion, deprived them of all but one-fourth share in their lands. That one-fourth share was allowed to be retained by them in consideration of keeping peace and order in their villages. These lands, which were retained by the former chiefs, became their wanta and continued to remain their absolute property, while the remaining three-fourths share called talpad became the property of the then Government. This proportion of shares, however, was not long preserved. A powerful wantadar would from time to time seize talpad lands and add them to his own wanta; a weak wantadar might lose a part of his wanta by encroachments of the holders of talpad lands; while a needy wantadar might part with his lands by alienation to others. In a majority of cases, the wantadars, or the Thakors as they were called, paid quit rent or salami as it was called to the Government. After the introduction of the British Government some wantadars allowed their wanta lands to be numbered and assessed for the payment of salami under the Summary Settlement Act (VII of 1863), while others continued to make a payment in lump for all their wanta lands. This payment was called udhad jalmabandi, i.e. payment of revenue in lump, and the wanta was called udhad salami wanto. It is important to note that wanta is a characteristic of lands and not of the person who holds them. There is a class of landholders in Gujarat who are known from early British;' times as talukdars (the name seems to have been borrowed from the description of landed proprietors in Upper India who were called talukdars) and the lands held by them as such are known as lands of talukdari tenure. According to the Bombay Survey and Settlement Manual, Vol. I, "the leading characteristic of talukdari tenure is that a talukdar's estate is held neither in gift from the Crown (i.e. alienated), nor in occupancy (i.e. unalienated), but with full proprietary rights antedating the advent of the British rule and including the ownership of lands, minerals and trees." This description would also apply to wanta lands, but a talukdar and a wantadar are not convertible terms, as wanta holders are generally but not invariably talukdars. The Thakor of Amod is a wantadar as well as a talukdar. His holdings were originally in one taluka of the Broach District, but later on.they were distributed in three talukas of Amod, Jarnbusar and Wagra of the same District. The total area of the Amod wanta estate is 14,567 acres and thirty-one gunthas for which the Thakor is paying to the Government Rs. 9,451-13-5 as udhad jama with peshkush. The lands in dispute in the suit are roalds, tanks, village sites, creeks, river beds and other waste lands, all known as kharaba in the revenue phraseology. They comprise 244 items with a total area of 758 acres and 15 gunthas distributed in twenty-two villages. The largest compact area out of the suit lands is one big survey No.354 which is sub-divided into 201 numbers and comprises an area of 5711 acres, 22 gunthas.