# Collector of Bombay v. Municipal Corporation of the City of Bombay and Others

- **Citation:** [1952] 1 S.C.R. 64
- **Court:** Supreme Court of India
- **Decided:** 1952
- **Case number:** Civil Appeal No. 75 of 1950
- **Bench:** Patanjali Sastri, MuKHERJEA, S. R. DAs, VIVIAN BosE JJ
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/collector-of-bombay-v-municipal-corporation-of-the-city-of-bombay-and-others-56
- **Pages:** 26

## Headnote

Ghatwali tenures-Nature and incidents-Alienability of Ze1nindari 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 became 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 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 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 Procedure alleging that· as Taluk Kakwara was held on
Gh<ltwali 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 Ghatwaii Mahal of
Khara~a 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 inallienable, and
might be transferred by the Ghatwal or sold inexecution of a decree ·against him, if such tranfer_ 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 \'. Niranjan
Chakravarati(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 wstom
being required
over again. Lord Sumner, however, pointed out
that
(1) (1887) L.R. 15 I.A. 18; I.L.R. 15 Cal. 471.
(2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat. 184; A.I.R. (1924)
P.C. 5.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani
Probhabhati
and ,others.
Das/.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani
Probhabhati
and others.
Das/.
66
SUPREME COURT REPORTS
[1952]
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 Zamin

## Text

_Characters 0–39,618 of 56,418. This is a partial read: ask again with offset=39618 for what follows._

1951
Collector of
Bombay
v.
Municipal Corporation 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 Ze1nindari 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 became 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 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 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 Procedure alleging that· as Taluk Kakwara was held on
Gh<ltwali 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 Ghatwaii Mahal of
Khara~a 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 inallienable, and
might be transferred by the Ghatwal or sold inexecution of a decree ·against him, if such tranfer_ 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 \'. Niranjan
Chakravarati(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 wstom
being required
over again. Lord Sumner, however, pointed out
that
(1) (1887) L.R. 15 I.A. 18; I.L.R. 15 Cal. 471.
(2) (1923) L.R. 51 I.A. 37; I.L.R. 3 Pat. 184; A.I.R. (1924)
P.C. 5.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani
Probhabhati
and ,others.
Das/.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani
Probhabhati
and others.
Das/.
66
SUPREME COURT REPORTS
[1952]
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 Zamidar of Kharakpur were, by custom
judically recognised, alienable with the assent of the
Zamindar while Ghatwali tenures like Handwa held
under the Goverment direct were inalienable.
In
this
state of the authorities, the appellant judgment-debtor
on May 31, 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.
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 aliow 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 Chatt~rjee J. as the third Judge
,
.S.C.R.
SUPREME COURT REPORTS
67
..
Chatterjee J. held that Taluk Kakwara was a Zamindari Ghatwali and as
such~ alienable and accordingly
dismissed
the appeal.
The judgment-debtor
obt'!ined
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 ithe 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 des'-
cribed by the Right Hon'ble T. Pemberton Leigh (who
subsequently became Lord Kingsdown) in his judgment
in the case of Raja Leelanund Singh v. Government of
Bengal(1) :
Many of the
greater
Zamindars within
their res-
'pective
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
tolls, and
they increased
their income
by fees, · per~
quisites, 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 for~e. 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
'(l) (1855) .6 M.I.A. 101 at p. 108 .
•
1951
Thakur
Rudreshwari
Prasad Sinha
v •.
Srimati Rani
Probhabhati
and others.
Das].
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani
Probhabhati
and others.
Das/.
68
SUPREME COURT REPORTS
[1952]
officerscalculated 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
through
the
Provinces,
particular
Districts
were
exposed to ravages
of a
different
discription.
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(') ,which was a case between
the respective predecessors of the parties before us and
related to this1 very Taluk Kakwara. Said the learned
Chief Justice at p. 255 :-
"And it is
very
necessary for
our present purpose
i..
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 thos~ days by the Government,
(1) (1877) I.L.R. 3 Cal. 251.
r
,
, -
S.C.R.
Sl,JPREME COURT REPORTS
69
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 arrped men
to fulfil th~ 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 iii 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
predeces1sors 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
m
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 hiJly 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
(I) (1865) 3 W.R. 84.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimati Rani ·
Probhabliati
and others.
Das;.
1951
Thakur
Rudreshwari
Prasad Sinha
v.
Srimaii Rani
Probhabhati
and others.
Das f.
70
SUPREME COURT REPORTS
[1952]
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."
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. 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 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 personal 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 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 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
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
presmped 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 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 cases 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
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 Ghatwal 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 tocustom 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 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.
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
C hakravarti (supra) at p. 50 Lord Sumner said :-
"In the
Sonthal
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 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 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.
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 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:
..
-·
:
l
S.C.R.
SUPREME COURT REPORTS
75
"Seal of
Captain
James
Browne, head of jungletari (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 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, sair-wajhat 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 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
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 ;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, appeartaining to Kharagpur, Zila Jangaltari, Sarkar Monghyr,
in the province of .Bihar, is let out in perpetual mukarrari, 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 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, 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 maintaining 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 Company 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 existing 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 Ghatwali.
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 grandson 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 Chaudhuris 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 condition 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 'themselves responsible therefor. ·They
~hould continue
tQ\
pay the quit-rent to the Sarkar as usual.
When summoned, 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 existing 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 position 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 Government
Ghatwali tenure and
Raja
Kadir Ali's Sanad
was nothing more than a confirmation of that Government
Ghatwali
tenure.
Reliance is
placed
on the
inscription in the seal at the top which refers to Emperor 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 apportionment 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 specification 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.