# <Jukhdev Singh v. Mahara}a Bahadurof Gidhaur Faz/ A/IT

- **Citation:** [1951] 1 S.C.R. 534
- **Court:** Supreme Court of India
- **Decided:** 1951
- **Bench:** SA1Ym FAzL ALI, MuKHEERJEA, Chandrasekhara Aiyar Jj
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jukhdev-singh-v-mahara-a-bahadurof-gidhaur-faz-a-it-109
- **Pages:** 15

## Headnote

[1951]
Ghatwali tenures-Nature and incidents-Gova-nment ghatwalis
and Zemindary ghatwalis-Difference-Zemindar' s right to sub-soil
minerals-District Gazetteers-Evidentiary value.
Though there are several instances in which Government ghat4
walis were included in the zemindary of other persons, yet wh.cro
no clear evidence is forthcoming as to the true character of a ghat4
wali, the fact that the tenure is included within a zamindary and
is covered by the jama assessed
upon it should turn the scale in
favour of the party who alleges that it is a tenure which is dependent upon the zemindary.
The mere fact that the ghatwali was shown to be under the
Collector cannot alter the character of the ghatwali, i.e., if it Was
a zemindary ghatwali, it could not become a Government ghanvali
merely because it was stated to be under the Collector.
A zemindar is presumed to be the owner of underground rights
in the tenancies created by him in the absence of evidence that he
ever parted with them.
A statement in the District Gazetteer is not necessarily conclusive,
but the Gazetteer is an official document of some value, as it is
compiled by experienced officials with great care after obtaining the
facts from official records,
(History and incidents of ghatwali tenures discussed).
C1VIL APPELLATE Juruso1CTI0N. Civu. Appeal No. 29
of 1950.
Appeal against the Judgment and Decree dated the
10th October, 1945, of the High Court of Judicature
at Patna (Manohar Lal and Das JJ.) in Appeal No. 64
of 1942 arising out of decree dated the 28th February,
1942, of the
Subordinate
Judge at Monghyr in Suit
No. 10 of 1941.
Amarendra Nath Sinha (Samarendra Nath Mukherjee,
with him) for the appellants.
Lal Narain Sinha (R. C. Prasad, with him) for the
respondent.
S.C.R.
SUPREME COURT REPORTS
535
1951· May 2. The judgment of the Court was delivered by
FAZL Au J.-This is an appeal from a judgment and
decree of the High Court
of Judicature at
Patna,
affirming a judgment and decree of the Subordinate
Judge of Monghyr in a title suit brought by the
plaintiff-respondent.
The plaintiff, the Maharaja of Gidhaur, who has
succeeded in both the courts below, is the proprietor of
an impartible
estate
known as
Gidhaur raj
in the
district of Monghyr.
The ancestors of the defendants
1st party originally held a 4 annas share in a ghatwali
tenure known as Mahal Dumri Nisf Katauna T. No.
325, and subsequently
by private partition
they were
allotted mouza Dumri
with its
47
tolas
which are
detailed in ·schedule I of the plaint. In execution of a
mortgage decree obtained by one Chethru Rai against
the ancestors of defendants 1st party, their interest, to
which reference has been made, was purchased by the
Maharaja of
Gidhaur in
the name
of one
of his
employees, and the latter took delivery of possession of
the property on the
19th April, 1904.
On the 13th
August, 1903, the ancestors of the defendants 1st party
filed an application for setting aside the sale which was
dismissed by the executing court and the appeal from
the order of the executing court was dismissed by the
High Court as
well as by the
Privy . Council. After
certain disputes in the criminal courts, the defendants
second party alleging
themselves to be the lessees of
the defendants first party,
obtained a mining license
in 1937
from
the
sub-divisional
officer of
Jamui,
and the District
Magistrate apprehending a breach of
the peace,
started
proceedings
under section
144 of
the Criminal Procedure Code, which ended in favour
of the defendants first and second parties and against
the plaintiff.
The plaintiff's case is that, emboldened by the order
in the proceedings under section
144, the defendants
started working mines in the tolas mentioned in schedule II of
the
plaint and extracted a
considerable
1951)
<Jukhdev Singh
v.
Mahara}a
Bahadurof
Gidhaur
Faz/ A/IT.
1951
Sll/ohdev Singh
v.
Malrarqja
Bahadurof
Gidhaur.
Faz/ A.Ii J,
536
SUPREME COURT REPORTS
[1951]
9ua~tity of mica and hence he was compelled to
mst1tute the pre

## Text

1951
May2
534
1951
Mayl,
SUPREME COURT REPORTS
SUKHDEV SINGH
II.
MAHARAJA BAHADUR OF GIDHAUR
[ SA1Ym FAzL ALI, MuKHEERJEA and
CHANDRASEKHARA AIYAR JJ.J
[1951]
Ghatwali tenures-Nature and incidents-Gova-nment ghatwalis
and Zemindary ghatwalis-Difference-Zemindar' s right to sub-soil
minerals-District Gazetteers-Evidentiary value.
Though there are several instances in which Government ghat4
walis were included in the zemindary of other persons, yet wh.cro
no clear evidence is forthcoming as to the true character of a ghat4
wali, the fact that the tenure is included within a zamindary and
is covered by the jama assessed
upon it should turn the scale in
favour of the party who alleges that it is a tenure which is dependent upon the zemindary.
The mere fact that the ghatwali was shown to be under the
Collector cannot alter the character of the ghatwali, i.e., if it Was
a zemindary ghatwali, it could not become a Government ghanvali
merely because it was stated to be under the Collector.
A zemindar is presumed to be the owner of underground rights
in the tenancies created by him in the absence of evidence that he
ever parted with them.
A statement in the District Gazetteer is not necessarily conclusive,
but the Gazetteer is an official document of some value, as it is
compiled by experienced officials with great care after obtaining the
facts from official records,
(History and incidents of ghatwali tenures discussed).
C1VIL APPELLATE Juruso1CTI0N. Civu. Appeal No. 29
of 1950.
Appeal against the Judgment and Decree dated the
10th October, 1945, of the High Court of Judicature
at Patna (Manohar Lal and Das JJ.) in Appeal No. 64
of 1942 arising out of decree dated the 28th February,
1942, of the
Subordinate
Judge at Monghyr in Suit
No. 10 of 1941.
Amarendra Nath Sinha (Samarendra Nath Mukherjee,
with him) for the appellants.
Lal Narain Sinha (R. C. Prasad, with him) for the
respondent.
S.C.R.
SUPREME COURT REPORTS
535
1951· May 2. The judgment of the Court was delivered by
FAZL Au J.-This is an appeal from a judgment and
decree of the High Court
of Judicature at
Patna,
affirming a judgment and decree of the Subordinate
Judge of Monghyr in a title suit brought by the
plaintiff-respondent.
The plaintiff, the Maharaja of Gidhaur, who has
succeeded in both the courts below, is the proprietor of
an impartible
estate
known as
Gidhaur raj
in the
district of Monghyr.
The ancestors of the defendants
1st party originally held a 4 annas share in a ghatwali
tenure known as Mahal Dumri Nisf Katauna T. No.
325, and subsequently
by private partition
they were
allotted mouza Dumri
with its
47
tolas
which are
detailed in ·schedule I of the plaint. In execution of a
mortgage decree obtained by one Chethru Rai against
the ancestors of defendants 1st party, their interest, to
which reference has been made, was purchased by the
Maharaja of
Gidhaur in
the name
of one
of his
employees, and the latter took delivery of possession of
the property on the
19th April, 1904.
On the 13th
August, 1903, the ancestors of the defendants 1st party
filed an application for setting aside the sale which was
dismissed by the executing court and the appeal from
the order of the executing court was dismissed by the
High Court as
well as by the
Privy . Council. After
certain disputes in the criminal courts, the defendants
second party alleging
themselves to be the lessees of
the defendants first party,
obtained a mining license
in 1937
from
the
sub-divisional
officer of
Jamui,
and the District
Magistrate apprehending a breach of
the peace,
started
proceedings
under section
144 of
the Criminal Procedure Code, which ended in favour
of the defendants first and second parties and against
the plaintiff.
The plaintiff's case is that, emboldened by the order
in the proceedings under section
144, the defendants
started working mines in the tolas mentioned in schedule II of
the
plaint and extracted a
considerable
1951)
<Jukhdev Singh
v.
Mahara}a
Bahadurof
Gidhaur
Faz/ A/IT.
1951
Sll/ohdev Singh
v.
Malrarqja
Bahadurof
Gidhaur.
Faz/ A.Ii J,
536
SUPREME COURT REPORTS
[1951]
9ua~tity of mica and hence he was compelled to
mst1tute the present suit.
In this suit, after reciting
the facts to which reference has been made he prayed
for a declaration of the sub-soil rights with regard to
the entire Mahal Durnri and for recovery of possession
of the mortgage lands situated in the tolas specified in
schedule II of the plaint.
He also prayed for mesne
profits and a permanent
injunction restraining the
defendants first
and second
parties
from extracting
mica or other underground minerals from the lands
mentioned in schedule II of the plaint. The grounds
on which these reliefs were claimed are summarized in
paragraph 12 of the plaint in these words :-
"That the plaintiff submits that he being the 16
annas proprietor of
Durnri Nisf Katauna has got an
indefeasible right
and title
to all
the underground
minerals including mica situate within the said talukas.
The plaintiff further
submits that all the
titles and
interest in the
said 4 annas mokrari shares of the
ancestors of the
defendant 1st
party
having
been
acquired by plaintiff's ancestor by auction purchase in
1903, the defendant
1st party have
no sort of right
and
interests in
the mica
and other
underground
minerals nor the
defendant
2nd party
have derived
any lawful right under leases alleged to
have been
granted in their favour
by defendant
1st party, the
plaintiff in law is entitled to get a declaration of his
title and possession with respect to all the underground
. h . 1 d.
.
"
rig t me u mg rmca ........... .
The suit was contested by ~$fendants Nos. I to 11
(defendants
1st party), but, as the
trial
judge has
pointed out, the real defendant was defendant No. l,
father of the appellant. The case of this defendant
was that . the four annas interest in village Dumri was
a
ghatwali tenure granted to the ancestors of
the
defendants first party by Muhammadan rulers to guard
the hill
passes in the taluka, and the grant under
which they held was affirmed subsequently by Captain
Browne, a ·representative of the East India Company.
The defendant No. 1 further contended that the mineral
S.C.R.
SUPREME COURT REPORTS
537
and subsoil rights were vested in him as the holder of
the ghatwali tenure, and that the plaintiff had acquired
no right by his auction-purchase in 1903 inasmuch as
the property in suit being Government ghatwali tenure
was inalienable and consequently the auction-purchased
was
invalid. Lastly,
it was
contended
that
this
defendant and his ancestors had been exercising rights
· of possession over the
mines and minerals
for more
than 12 years
prior to the suit in assertion of their
ghatwali right and to the knowledge of the plaintiff
and his ancestors and had thus acquired an indefeasible
right by adverse possession to the mines and minerals
in suit, especially
those in the lands specified in
schedule II of the plaint.
The Subordinate
Judge decreed the suit, holding
among other things that the disputed tenure was a
zamindary ghatwali tenure, that it was not inalienable,
that the plaintiff had been in possession of the property
since he purchased it in 1903 until the order of the
District Magistrate made in 1938, that the plaintiff as
the proprietor of the Mahal was entitled to the mineral
and subsoil rights and that under the mortgage-sale
only the surface right had passed to the plaintiff. The
findings of the
Subordinate
Judge were
substantially
upheld on appeal by the High Court, with this modification
that,
while
agreeing with the Subordinate
Judge that the
subsoil rights remained with the proprietor, the High Court also held that even if the
defendant No. 1 was assumed to have had the subsoil
rights, those rights passed
at the
mortgage~sale of
1903 and therefore in any event the plaintiff was the
real owner of the
subsoil.
On the plea of
adverse
possession raised in defence, the finding of the High
Court was
that there was
no clear evidence that any
mine was worked on behalf of the lessees of defendant
No. 1 and that at the utmost the evidence adduced in
the case showed that there had been some isolated acts
of possession during recent years, probably since 1935
onwards, and
therefore the plea could not be upheld.
The two main points urged on behalf of the appellant in this appeal are :-
1951
Sukhdev Singh
v.
Maharaia
Baliadurof
Gid/iaur.
Fazl Ali J,
19SI
Sukhdev Singh
v.
Mahara}a
Bahadurof
'Gidhaur.
Faz/ All J.
538
SUPREME COURT REPORTS
[1951]
( 1) that the finding of the courts below that the
ghatwali tenure held by the defendants first party was
a zamindary ghatwali and not a Government ghatwali,
could not be sustained and that in fact it was a Government ghatwali and therefore the property was inalienable and no title passed to the plaintiff ; and
(2) that in any event,
the plaintiff's
suit was
barred by limitation under articles 142 and 144 of the
Limitation Act.
The first point does not appear to us to be free from
difficulty, and since its determination depends upon
the proper construction of several old documents, we
heard the parties at considerable length, notwithstanding the fact that the courts below
have concurrently
found that the tenure in question
is not a government ghatwali. Before .dealing with the merits of the
controversy between
the parties, it
is
necessary
to
understand what is meant by a "ghatwal" and what
is a ghatwali tenure, and for the purpose
of correctly
apprehending what these expressions
stand
for, it is
sufficient in our opinion to quote the following passage
from the decision of the Patna High Court in Rani
Sonabati
Kumari v.
Raja Kirtyanand
Singh('), in
which the subject of ghatwali tenures
has
been very
elaborately discussed :-
"Literally a ghatwal means a guard of the passes
and the term
'ghatwali tenure'
was applied
by the
Moghuls to lands assigned at a low rent or free of rent
for guarding the mountain passes and protecting the
villages near the ·hills from the depredatioqs of lawless
hill tribes.
These ghatwali tenures are to be found
for the most part on the western frontier of Bengal
and particularly in the areas
known as
Kharagdiha,
Gidhaur, Birbhum,
Kharagpur,
Bhagalpur,
and
the
Santai
Parganas.
The ghatwals varied in rank and
the incidents of their tenure varied in different places.
In some cases they were owners of large estates, some
of these estates being more or less of the nature
of semi-military colonies .......... In some cases the
( 1) I.L.R. 14 Patna 70
S.C.R.
SUPREME COURT REPORTS
539
ghatwalis were created directly by the ruling power,
while
in other
cases
they
were
created by
the
landlords or zamindars for the purpose of protecting
their zamindary and tenantry
and
to
enable
them
to have a small force
at their command and to
discharge the obligations they owed to the ruling
power.
Sometimes
the
owners
of
large
ghatwali
estates subdivided and re-granted the lands to other
tenants 'who
besides paying
small rents
held their
lands on condition of rendering certain quasi police
and military services and providing a specified number of armed men to fulfil
the
requirements of the
Government or of the zamindar as the case might be."
A Government ghatwali is thus a tenure created by
the ruling power in favour of a person who is required
to render ghatwali services to it, whereas a zamindary
ghatwali is a tenure created by a zamindar for ghatwali services to be rendered to him. It is quite plain
that the reason why the appellant is anxious to establish that the
tenancy is a Government ghatwali is
that a Government ghatwali has been uniformly held
to be inalienable.
On the
other hand,
a zamindary
ghatwali may be alienated with the consent of
the
zamindar, and, where local custom permits, even without his consent.
From the reports of cases relating to
zamindary ghatwalis, it
appears that by
the passage
of time the consent of the zamindar has ceased to be a
matter of much significance, and is generally . presumed
when it is found that the
alienation has been made
without any objection from the zamindar.
As to the
extent of the power of alienation, the following observations of the Privy Council in Kali Prasad v. Ananda
Rai (1) are pertinent :-
"When once it is established that the ghatwal had
the power of alienation,
as before stated,
that power
forms an integral portion of his right and interest in
the ghatwali, and
there is no evidence whatever to
limit it to an alienation for his
own
life and
no
longer."
(1) lSI.A.18
1951
Sukhdev Singh
v.
Maharaia
Bahadurof
Gidhaur.
Fazl Ali .T.
1951
Sukhdev Singh
v.
Maharaj a
Bahadurof
Gidhaur.
Faz/ Ali J.
540
SUPREME COURT REPORTS
[1951]
In order to determine the true character of a ghatwali tenure, it is usually necessary to refer to the grant
by which the tenure was created. In the present cas_e,
the appellant
relies upon
exhibit C (1), which is a
ghatwali sanad granted in 1776 to the ancestors of the
appellant and which runs as follows : -
"Know ye the Chaudhuris, kanungoes, zamindars
and mutasaddis of mauza Dumri Ghat (illegible)
pargana Gidhaur, Sarkar Monghyr comprised in the
province of Bihar.
The perquisites of ghatwari in all the rahdaris in
mauza aforesaid, have now been granted
to
Kunji
Singh, Jangal Singh, Ragho Singh and Manorath Singh,
ghatwars of the said mauza, in accordance with what
has been in vogue from old time, with effect from the
commencement of 1184 fasli.
It is desired that they
should allow the said ghatwars to enjoy the perquisites
of the ghatwari in all the rahdaris according to old
customs. It will be the duty of the said ghatwars to be
ever ready in discharging the duties of the post and
guarding the ghats
and chaukis of
their elaqa by
making rounds day and night.
If murder, mischief,
theft, highway
robbery and sudden night attack be
committed in their elaqa, they will be held liable therefor and will be dismissed from their post. Treat this
as peremptory and act according to what is written.
Dated the 5 Ziqada of the 18th year of the August
reign corresponding to 1184 Fasli.'
This sanad was
granted by Captain Browne, who
was deputed by the
East India Company to restore
order in a tract known as Jungle Terai, a vast waste
and hilly country as its name signifies, lying to the
south of Bhagalpur and west of Rajarnahal Hills. This
document was construed by a Bench of the Patna High
Court in Fulhati Kumari v. Maheshwari Prasad('), and
as has been pointed out by Dawson Miller C.J. in that
case,-
" It is not a grant of land but an authority to the
persons named to collect
as
formerly
ghatwari or
(') A.I.R.1923 Patna'453
..
S.C.R.
SUPREME COURT REPORTS
541
ghatwali fees or tolls from those using the roads and
passes which the ghatwals undertook to protect."
When W(! compare this sanad with other ghatwali
sanads granted by Captain Browne, some of which are
found discussed in reported cases, the contrast becomes
very marked. In some of the other documents-for
example in the document which was the subject of the
decision of the Privy Council in Narayan Singh v.
Niranjan Chak._ravarti(1), and of the Patna High Court
in
Rani
Sonabati
Kumari
v.
Raja Kirtyanand
Singh(2) the grant was in respect of a very extensive
area of land and there were also words
used to indicate
that the services were to be rendered directly to the
ruling power. The mere fact, therefore, that the sanad
in this case was granted by Captain Browne cannot be
held to be decisive of the nature of the tenure, because
it seems to have been part of the · duties assigned to
him to confirm and recognise old titles. As was pointed out by Dawson Miller C.J., the sanad
should be
read along with the record of certain proceedings before the Dewani Adalat of Ramgarh, which show that
a tenancy comprising 8 annas in mauza Dumri was
granted by the zamindar of Gidhaur to 2 persons, one
of whom was
the ghatwal
mentioned
in Captain
Browne's sanad, with the sanction of Captain Browne.
In the present case, a document of 1798, which was the
proceeding of the original court and which was before
the learned judges who decided Fulbati's case(3) has not
been produced, but we have before us a judgment dated
the 18th March, 1799, of the appellate court in the
same proceeding.
This judgment recites that the case
of the ghatwals was that they had been for 3 generations in possession of half of village Dumri, but in the
year 1187 fasli
(1780 A.D.) the zaminar of Gidhaur
wanted to raise "revenue" or rent but they refused to
accept a new patta
or kabuliyat at an enhanced rent.
Subsequently, the court ordered the zamindar to grant
a patta, but the zamindar did not do so and forcibly
dispossessed the ghatwals. They thereupon prayed that
( 1 ) 51 I.A. 37
(') J.L.R. 14 Patna 70
[ 3) A.l.R .. 1923 Patna 453
1951
Sukhdev Singh
v.
Maharafa
Bahadurof
Gidhaur.
Faz/ .A.// J,
1951
Sukhdev Singh
V;
Mahara}a
Bahathlrof
Gidhaur.
Fa2l Ali J.
542
SUPREME COURT REPORTS
[19;1J
the zamindar may be ordered to gran't them a patta and
receive the kabuliyat at the old rent.
The appellate
court, to
which the zamindar had appealed, upheld
the decree of the first court ordering the patta to be
granted. This document shows firstly
that the ghat·
wali tenure in respect of half of Dumri had been in
existence for 3 generations prior to 1789, i.e., it must
have come into existence long before Captain Browne's
sanad, and secondly that it was held under the zamindar ; otherwise, it was not necessary that the zamindar
should grant a patta and the ghatwal should execute a
kabuliyat in his favour.
We have also before us a document (exhibit 1) which
is a report of one Khadim Muhammad Ataullah, an
employee of the
East India
Company,
incorporating
certain
statements
made by
the then
zamindars of
Gidhaur showing that they had been in possession of the
zamindary for nearly 700 years and that "the milkiat
zamindary,
Chaudhri and
Kanungoi of the
pargana
.......... had all along been in their possession." This
document shows that Gidhaur was an ancient zamin-
<lary and the zamindar also performed the functions cf
chaudhri and kanungoi.
The last mentioned point is
of some significance, because the sanad
of Captain
Browne was addressed to chaudhris, kanungos, etc.
In the case of Fulbati Kumari('), to which reference
has been made, there was an extract quoted from the
Bengal District Gazetteer, volume XVII, at page 168,
which runs as follows :-
"About 1774
the lawless
state of this tract led
the British
to place it in charge of Captain James
' Browne, who settled the estates with the ghatwals with
two
exceptions. These two exceptions
were
Dumri
and Mahesri which were settled directly with the proprietors,
the
story being that
the
ghatwal tenure
holders fled at the approach of Captain Browne their
reputation as dacoits and
brigands being too strong
for them to face a Government officer without fear of
the consequences.
In the case of Dumri however, the
(') A.I.R. 1923 Patna 453
'
-
S.C.R.
SUPREME COURT REPORTS
543
ghatwals finding
that in their absence a
settlement
had been made of their tenure, returned and obtained
a sanad settling it with
them under the
Raja of
Gidhaur.
Of the estates
settled with ghatwals
only
two or now held by their descendants, viz., Tilwa and
Kewal. The others qavc passed into the hands of the
Maharaja of Gidhaur, Chetru Rai,
Akleswar ·Prasad
and others of Rohini."
The statement in the District Gazetteer is not necessarily conclusive,
but the
Gazetteer
is an
official
document of some value, as it is compiled by experienced officials with great care after obtaining the facts
from official records. As Dawson Miller C.J. has pointed
out in Fulbati's case(1), there are a few inaccuracies in
the latter pan of the statement quoted above, but so
far as the earlier part of it is concerned, it seems to
derive
considerable suppon from the documents to
which reference has been made.
The counsel for the appellant greatly relied on the
fact that Dumri ghatwali is . mentioned in Captain
Browne's "India Tracts" as one
of
the ghatwalis
placed under. the Collector of Jungle Terrai districts.
It appears that this point was not raised before any of
the courts below, nor was
Captain
Browne's treatise
placed before them. There is
thus considerable force
in the objection raised on behalf of the respondent that
he has not had sufficient opportunity
to study the
matter and place relevant materials before this
coun
to enable it to determine what meaning and value
6hould be attached to
Captain
Browne's
statement.
But apart from this objection, it seems to us on the
evidence as it stands, that the inference sought to be
drawn from Captain Browne's statement is not fully
justified for the following reasons :-
1. The mere fact that the ghatwali was shown
to be under the Collector cannot alter the character of
the ghatwali, i.e., if it was a zamindary ghatwali, it
could not
become a
Government
ghatwali
merely
because it was stated to be under the Collector.
(1) A.I.R.1923 Patna4S3
1951
Sukhdev Singh
v.
Maharaja
Bahadurof
Gidhaur.
Faz/ Ali J,
1951
Sukhdev Singh
v.
MaharQ/a
Bahadurof
Gidhaur.
Fazl Ali J.
544
SUPREME COURT REPORTS
[1951]
2.
As Collector of Jungle Terrai districts, Captain
Browne appears to have had control not only over the
ghatwals but also over the zamindars within the area
administered by him.
3. The observations
made
by
Captain
Browne
with regard to the
Jungle Terrai ghatwals and their
relation to the zamindar hardly support the view urged
on behalf of the appellant.
·Referring to the
Jungle Terrai ghatwalis, Captain
Browne states in his book as follows :-
"All the
Jungle
Terry
gautwalls were formerly
subject to the several Rajahs, to whose territories their
Gautwallies belonged; they
paid a slight tribute in
token of feodal obedience, and were bound to oppose
all invasions (principally from
the south)
to attend
their Rajahs when summoned, with all their followers
in arms, and to be responsible for every violence and
irregularity committed in their respective boundaries ;-
their followers are still bound by the same feodal ties
to them, and have lands for feodal services ; nothing
can be conceived more absolute than the authority of
these chiefs over their vassals ; the fear of death even,
when seized on in war, is not sufficient to force from
them the discovery of any secret respecting their chief,
his family, or property."
Again, Captain Browne's description of the zamindar
of Gidhaur is to the following effect :-
"The
Raja of
Guidore
was formerly
of great
extent, but the conquests made from it by the Rajah
of Bierboom and Comgar Cawn, and the independency
which these wars gave the
Gautwalls an opportunity
of assuming, have
reduced the present Rajahs Gopal
Singh, and Durrup Singh, to follow an ebb, that they
can scarcely recover sufficient consequence to be of any
political weight whatever."
On the whole, it appears that the ghatwals of Dumri
were hardly men of such consequence as to break off
from the zamindar and set themselves up as independent chiefs.
S.C.R.
SUPREME COURT REPORTS
545
There are two other items of evidence which seem
to have an important bearing on the question. In the
first place, the appellant's tenure was included within
the Gidhaur zamindary in the Permanent Settlement,
and secondly, it is shown in the Record of · Rights as
istemrari mokrari
tenure
under
the
zemindar
of
Gidhaur. In the case of Raja Lelanund Singh Bahadr,or
v. The Bengal Government(1) where the Government set
up a claim to resume the ghatwali in the zamindary
of Khuruckpore for the purpose of revenue assessment,
the claim was negatived by the
Privy Council, and
one of the grounds upon which the decision was based
was that the ghatwali lands were part of the zamindary
and were included in the Permanent Settlement of the
zamindar and were
covered by the
jama assessed on
that zamindary. There can be no doubt that prima
facie the fact that the tenure was included in the Permanent Settlement of the zamindar and under that
Settlement the ghatwal had to pay rent to the zamindar
raises a presumption that the ghatwali was in some
way connected with the zamindar, but it must be
recognized that the permanent settlement of the land
"would not affect the
nature of the
tenancy
upon
which the lands were held, nor can it convert the services which were
public into private services under
the zamindar": [vide Raja Nilmoni Singh v. Bakranath
Singh(2) ]. There
are several
reported
cases
which
furnish instances in which
the properties
of persons
who were Government ghatwals were included in the
zamindary
of other persons,
but where
no clear
evidence is forthcoming as to the true character of the
ghatwali, the fact that the tenure is included within a
zamindary and is covered by the jama assessed upon
it should
turn the scale in favour of the party who
alleges that it ·is a tenure which is dependent upon the
zamindary. In this case, the presumption arising under
the Permanent Settlement is reinforced by the entry
in the record of Rights which shows that the tenure
in question
1s
istemrari
mokrari
held
under
the
Zamindar.
( 1) 6 Moore's I.A. IOI
( 1) 9 I. A. 104
1951
Sukhadev Singh
v.
Maharaja
Bahadurof
Gidhaur.
Faz/ Ali J.
1951
Sukhdev Singh
v.
Maharaja
Bahadurof
Gidhaur.
Faz/ Ali, J.
546
SUPREME COURT REPORTS
[1951]
The learned counsel for !he appellant relied upon
exhibits N and N-1 and certain rent receipts granted
by the zamindar to show !he appellant's independent
title, but, in our opinion, lhese documents do not help
him much. Exhibit N is a notice issued to an ancestor
of !he appellant in 1859 by an official whose signature
on !he document is not legible. Jt refers to a report
of the sub-inspector of thana Chakai stating !hat "the
sautars (bad characters) are in their places of residence
and no riots or
disturbances are
taking place", and
directs the ghatwali to prepare a list of the sautars of
his ilaqa and file it before the officer-in-charge of the
lhana. Exhibit
N-1 is a similar notice,
but it is
incomplete and bears no indication as to who issued
it.
It recites a report of a police sub-inspector stating
!hat owing to failure of crops there were burglaries
and !hefts and recommends that the zamindars of the
ilaqa should be directed to "look after !he occurrences
and keep eyes over the bad characters and mischief
makers sci that occurrences
may be stopped".
These
documents do not necessarily show that !he appellant
is a Government .gatwal.
It Was not unusual in old
days
to issue notices like those · referred to, to the
zantjndars of !he ilaqa,
as exhibit
N-1
itself shows,
and the mere fact that. the person to whom the notice
was issued was described as a· ghatwal docs not show
that he was addressed in the capacity of a Government
ghatwal and not as a zamindari ghatwal.
The next item of evidence upon which the appellant
tried to rely consists of certain rent receipts and road
cess receipts, but these also do not help him, seeing
that they contain, among other things, a statement
that the tenure with regard. to which the receipts were
granted, appertained to
the proprietary zamindary of
Gidhaur.
This brief review of the evidence is sufficient to show
that the appellant has not been able b~ clea~ .and conclusive evidence to rebut the presumptton ansmg from
the Record of Rights and the record of the Permanent
Settlement, and he has failed to
establish his claim
that the tenure in question is Government ghatwali. It
S.C.R.
SUPREME COURT REPORTS
547
may be incidentally mentioned that in the mortgage suit
which preceded this litigation, there was no allegation
J?y way of defence that the ghatwali was not alienable,
and though the point was raised in the execution proceedings it was
decided against the
appellant by the
court of first instance and was abandoned on appeal.
In these circumstances, we see no reason to disturb tlie
concurrent
finding of
the courts
below which have
dealt with the piatter with great care.
Passing now
to the second· point raised in this
appeal, we find that tllere are concurrent
findings of
both the courts below against the defendants on the
plea of adverse possession. In arriving at this findings,
the courts below have fully discussed the evidence and
given cogent
reasons in support of their conclusions.
This coilr~ iit usually reluctant to reinvestigate matters
which have beetr fully investigated by the courts below
and on which there are
cop,~rent findings. In the
present case, the appellant has failed to show to us
any exceptional circwnstinces to
induce us to depart
from the sound and well established practice; -and in
this view the findings of
the court below must be
accepted.
It was however
contended that in any event the
plaintiff's suit is barred under article 142 of the Limitation
Act inasmuch
as it was
incumbCnt
on the
plaintiff to prove that he had been in possession of the
disputed lands, especially those
mentioned in schedule
·II of the plaint, within 12 years of the suit, but he had
failed to do so.
In our opinion, this plea must be
negatived.
The trial judge in his
judgment came to
a very clear finding in these words :-
"The story of possession and dispossession as put
forth in the plaint must be believed, because, as I have
already said there is
overwhelming
evidence in· this
case to prove the possession of the plaintiff over the
surface as well as the subsoil."
The finding of the Subordinate Judge does not appear to have been -challenged before the_ High Court,
and though no less than 16 reasons have been givc;n in
2-10 S. C. Indial67
1951
Slfkhd<> Slqh
v.
Maharaj a
Bahadur of
Gidhaur
Faz/ All J.
1951
Slll6tle• Si gh
v.
Ma/roraja
Bah•dur of
Gi4/raur
Fazl All J.
548
SUPREME COURT REPORTS
[1951]
the statement of case filed in this court on behalf of
the appellant, it has not been stated that there is no
evidence to show that the plaintiff was
in possession
of the disputed land or the land mentioned in schedule
U within 12 years of the suit.
Thus both the points urged in this appeal fail. There
can be no doubt that the entire tenure has passed to
the plaintiff by the sale, but, apart from this fact, it is
well-settled that a zamindar is presumed to be the
owner of the underground rights in the
tenancies
created by him in the absence of evidence that he
ever parted with them: [See Hari Narayan Singh v.
Sriram
Chak_ravarthi(1) and
Durga Prasad Singh v.
Braja Nath Bose(')].
The result is that this appeal fails, and it is dismissed
with costs.
Appeal dismissed.
Agent for the appellant : R. R. Biswas.
Agent for the respondent : R. C. Prasad.
BISHUNDEO NARAIN AND ANOTHER
"·
SEOGENI RAI AND JAGERNATH
[Smu liAB.ILAL
KANIA
C. J.,
PATANJALI SAsTRI,
- MEHAR CHAND MAHAJAN, S. R. DAs and
VIVIAN BOSE JJ.]
Civil Procedure Code (Act V of 1908), 0. 32, r. 7-Suit for partilion to which minor is party-Compromise by guardian-Sanction
of Court not obtained before entering into agreement-Validity of
decree-Suit by minor to set aside decree-Mere unfairness of divinon, effect of.
Where a Court has sanctioned an agrccm.cnt or compromise in
a suit to which a minor is a party after satisfying itself that it
is for the minor's benefit, the decree based on the agreement or
compromise cannot be held to be invalid or not binding on the
minor merely because the sanction of the Court was not obtained
by the next friend or guardian before he began to negotiate for
the agrccmC11t or compromise.
(I) 37 I.A. 136
(2) 39 I.A. 133