Amrit Ram and Others vs Tikait Dwarka Narayan Sahi

Mukharji, J.—In this first appeal the defendants are the appellants. Plaintiff Tikait Dwarka Narayan Sahi, proprietor of Gadi Tilaiya, pargana Gumob, thana Kodarma, district Hazaribagh, sued the defendants for declaration of title and recovery of possession is respect of 13 big has of land covered by a sanad (Ex. A) dated 17th November 1911. The Sanad in question was granted by the then proprietor, Fateh Narain Singh, an elder brother of the plaintiff.

Defendants 1 to 17 are the heirs of Jhari Ram, the grantee. Defendant 18, who was subsequently added as a party, is the widow of Jhari Ram. She was impleaded as Jhari Bam had transferred plot No. 3350, one of the plots in dispute, to her by a, deed of gift, Ex. L, dated 18th September 1981. A. pleader commissioner was appointed at the instance of the plaintiff, and his report which is to be found at page 49 of the Paper Book, Parts I and II, shows that when he visited the locality he found a house under construction on this particular plot. Defendant 19 is an idol of whom defendants 1 to 18 are the sebaits. This defendant was added as a party in view of the fact that by Ex. K, dated 18th September 1931, the said Jhari Ram dedicated a portion of the disputed land to this idol. The claim of the plaintiff was contested by the defendants. Defendants 1 to 6 filed one written statement. Another was filed by defendant 18. Defendants 6 to 17, who were minors, filed another written statement through their guardian ad litem. They simply adopted the written statement filed by defendants 1 to 5. The learned Additional Subordinate Judge who tried the case framed as many as 11 issues, some of which were not pressed. Before I refer to the issues, I may here state what the case of the plaintiff-respondent was. Stated within a brief compass, his case was as follows: Deceased Jhari Ram was a karpardaz of Tikait Pateh Narain Sahi. The latter was a very simple man, and JhariRam being shrewd had a great hold on liim. Jhari Ram used to look after the affairs of Tikait Fateh Narain in Court, and he also managed the other affairs of the Tikait in his capacity as his karpardaz (servant). Tikait Pateh Narain promised to grant a service tenure in respect of the land in schedule kha of the plaint to Jhari Ram for his future service as a karpardaz on condition that if Jhari Ram should cease to render service to the Tikait or his successor-in-interest, the latter will have a right to resume the jagir. On 17th November 1911 a sanad was granted, but not in the terms already settled between Tikait Fateh Narain and Jhari Ram. Jhari Ram, by fraudulent means, got it mentioned in the sanad that it is a dowami jagir and is granted for service already rendered. There was also no mention that if Jhari Ram failed to render services the jagir will be resumed. Within a month or so Tikait Pateh Narain Sahi came to know of the fraud perpetrated by Jhari Ram, and he called him to his presence and rebuked him for what he had done. Jhari Ram expressed regret and promised that the terms already agreed upon will hold good. In the finally published record of rights the land in question was recorded as a service tenure resumable on the death of the grantee. Jhari Ram died about the year 1935. The plaintiff who had succeeded to the Gadi on the death of his brother Tikait Pateh Narain Sahi called upon the heirs of Jhari Ram to render service like their deceased father. As they declined to render service, the plaintilf wanted them to give up possession of the suit land, but they refused to do so. The plaintiff was then compelled to bring the suit out of which the present appeal has arisen.

In their written statement the defendants denied that Jhari Ram was ever a karpardaz of Tikait Fateh Narain Sahi. Their case was that Jhari Ram was a money-lender and a businessman. It was further their case that one Akbar Ali brought a suit against late Tikait Pateh Narain Sahi and obtained a decree. According to the defendants, when in the execution proceedings the property of Tikait Pateh Narain was going to be sold Jhari Ram advanced money and saved the property with the result that the Tikait was greatly pleased and granted Jhari Ram a permanent Jhari, as evidenced by Ex. A. On behalf of the defendants it was also said that Jhari Ram made pairvi on behalf on the Tikait in Court in connection with the suit brought by the said Akbar Ali. The allegations of the plaintiff that Jhari Ram continued to render service to Tikait Pateh Narain were denied. It was also denied that after Jhari Ram''s death the plaintiff called upon his heirs to render service. The allegation that Jhari Ram committed fraud in the matter of the execution of Ex. A was wholly denied.

Issue 2 framed by the learned Additional Subordinate Judge was whether the jagir sanad from Tikait Pateh Narain Sahi was obtained by fraud and misrepresentation by Jhari Ram. The next issue was whether the jagir is a service tenure resumable on cessation of service. Issue 5 was "Did Jhari Ram disclaim his right under the Sanad or give up any part of the lands granted and admit the resumability of the jagir?" Another issue 7 was whether the suit was barred "by limitation and adverse possession. The question as to whether the house on the suit land could be ordered to be demolished was considered under issue 10. Issue 12 was as follows: "Is the plaintiff entitled to has possession of the suit land? If so can he get it without payment of the value of the house?"

Upon a consideration of the evidence and circumstances the learned lower Court came to the conclusion that there was some sort of agreement or arrangement between the parties by which the sanad, Ex. A, was partially superseded. Prom the survey records the learned lower Court held that the defendants gave up possession of a portion of the suit lands. He further held that during the continuance of the survey proceedings, Jhari Ram admitted that the jagir was a resumable service tenure. So far as the allegations of fraud and misrepresentation were concerned, the clear finding of the learned lower Court is that this part of the plaintiff''s case is unacceptable. The learned lower Court granted a decree to the plaintiff in the following terms:

The suit be decreed on contest as against defendants 1 to 5 and 18 and ex parte as against the others. Plaintiff''s title to the suit lands is hereby declared and it is hereby declared that he do recover possession of the same on evicting the defendants there from. The defendants are ordered to remove the materials of the house standing on plot No. 3350 within one month of this date failing which the house will be demolished by the Court''s agency and vacant possession of the site delivered to the plaintiff. Plaintiff will also get mesne profits for three years preceding the institution of the suit in Munsif''s Court and up to the date of delivery of possession. In the circumstances of the case plaintiff will not get any costs.

I may mention here, that the suit was originally filed in the Court of the Munsif.

On behalf of the defendants-appellants it has been contended that the terms of the sanad, Ex. A, being quite clear, the learned lower Court should not have taken extraneous circumstances into consideration, as he has done in this case. According to the learned Advocate for the appellants the mention of the word ''Jagir Dowami'' in the sanad makes it perfectly clear that it is a permanent and heritable Jagir that was granted under Ex. A. The decision of the present appeal turns on the construction of the document in question. Before I consider the contents of the document, I may mention that no argument was advanced before us on behalf of the respondent that the finding of the learned lower Court on issue No. 2 regarding the alleged fraud and misrepresentation is unsustainable. A perusal of the judgment shows that the learned lower Court took pains to consider all the relevant evidence on this point, and arrived at the conclusion that this part of the plaintiff respondent''s case can-not be true.

The following is a translation of'' the operative part of the sanad, Ex. A:

Whereas Jhari Bahu Ram, son of Rijho Ram, deceased...rendered faithful services by looking after oases, etc. I, the executant, being highly pleased with him, gave him 8 bigbas of paddy and 5 bighas of tanr lands, in all 13 bighas in mauza Tilaiya, pargana Gumo, thana Kodarma, sub-registry Darahi, district registry and district Hazaribagb, which is free from all debts and encumbrances, as a perpetual Jagir grant, from this day onward. It is desirable that the said Jhari Bam should enter upon possession of the land, as per boundaries given below and enjoy the produce thereof peacefully and should look after the zamindari affairs faithfully and honestly and pay the annual cess of Re. 1-4-0''into ray office. I have, therefore, executed this sanad of the Jagir grant by way or gift of my own accord, so that it may be of use when required.

The words ''Jagir Dowami'' in the sanad have been translated as perpetual ''Jagir.'' Mr. Sarjoo Prasad appearing for the appellants has con-tended that the contents of Ex. A make the intention of the exfcecutant. quite clear as to the nature of the grant. Mr. B.C. De appearing on behalf of the respondent has, on the other hand, contended that the words ''Jagir Dowami'' mean a Jagir permanent in the life-time of the grantee and not a heritable estate. A number of decisions have been referred to by both the sides, but in not a single one of them their Lordships of the Privy Council or of the various High Courts had to consider the implication of the words "Jagir dowami." In one case reported in Krishna Prasad Singh v. Budhan Manjhi AIR 1928 Pat. 451 the meaning of ''thika dawami'' fell to be considered. Their Lordships quoted with approval from the Settlement report of Mr. Sifton (as he then was) that the status of dowami in the record-of-rights is restricted to cultivating tenancies winch have grown into tenures. The lexicographical meaning of the word ''dowami'' is ''lasting, continuing.'' The word, therefore, connotes permanence The question is, what sort of permanence is really meant. In Raja Lilanand Singh Bahadur v. Thakur Munoranjan Singh (1974) 13 Beng. L.R. 124, the meaning of the expression ''istimrari mukarrari''. was considered. ''Mukarrari'' means ''a fixed allowance, quit rent'': vide Hindustani English Dictionary by S.W. Fallon. The word ''istimrari,'' according to the same, authority means ''perpetual, continuative, never ceasing.1 The question that their Lordships of the Judicial Committee had to consider was whether ''istimrari mukarrari'' means ''an estate of inheritance.'' Their Lordships held that the expression ''istimrari mukarrari'' might mean either permanent during the life of the grantee or permanent as regards hereditary descent. This view was reaffirmed and amplified in Tulsi Prasad Singh v. Ram Narain Singh (1986) 12 Cal. 117. If the words ''istimrari mukarrari'' cannot unequivocally refer to a hereditary interest, then the word dowami also cannot refer to such an interest. Therefore, in my opinion, the mere mention of the word ''dowami'' in the sanad, Ex. A, does not carry the case of the defendants-appellants very far. The sanad besides making mention of the word'' dowami,'' also uses the word ''gift,'' The whole of the instrument is in Hindi, but the English word ''gift'' has been used therein. At one place it is said that this will be a Jagir dowami and at another place it is mentioned "that the Jagir will be by way of a gift. The meaning of the crucial word ''dowami'' not being quite clear as already pointed out it cannot be said that the real intention of the grantor is quite apparent on the face of the document. Where such is the case, one has to look to other relevant circumstances to find out the real intention. The circumstances under which the instrument was executed thus become important. So also the other terms of the instrument and the subsequent conduct of the parties. First of all I shall deal with the other terms of the instrument. A remarkable feature of the document is the total absence of any of the familiar expressions like ''ba farzandan, al aulad and putra pautradi'' which we usually associate with instruments by which heritable rights are conferred. They are indeed not essential, but they are usually met with in some form or other. The sanad, Ex. A, contains a desire of the grantor that Jhari Earn should come into possession and enjoy the usufruct. If a heritable estate was meant, then one would have expected a mention of the fact that, the grantee and his descendants will continue to enjoy subject-matter of the grant without any let or hindrance.

Next, I shall refer to "the circumstances under which the sanad was granted. It is recited '' in the sanad, Ex. A, that the jagir is granted because of past services. It is further added that in future also Jhari Ram, the grantee, will continue to render services. There is no evidence that Jhari Earn was actually servant of the grantor. On the side of the plaintiff it was said in evidence that Tikait Fateh Narain wanted to utilisethe services of Jhari Earn and that he accordingly granted the sanad to him (Jhari Earn). The plaintiff''s case further was that Jhari Earn rendered Service so long as he was alive. The case of the defendants-appellants, on the other hand, was that Jhari Earn helped the Tikait in the case brought by Akbar Ali by advancing a loan to him. Entries in some bahi khatas were exhibited in this case to show that the Tikait was indebted to Jhari Ram. Kashi Ram (D.W. 7) son of Jhari Ram, in his deposition has said that the only concern that his father had with the late Tikait was that he lent money to the Tikait''. There is no evidence to show that Jhari Ram advanced loans on any particularly favourable terms. There is also no evidence as to what Jhari Ram exactly did in connection with the case brought by Akbar Ali, save and except this that he advanced some money and thereby saved some property of the Tikait from sale. The relationship between the Tikait and Jhari Ram was, thus, one of creditor and debtor. This is an important circumstance to be borne in mind. However, much a debtor may feel obliged to his creditor, it is unlikely that he (the debtor) will permanently deprive himself of his property in favour of the creditor to repay his debt of gratitude. In this connection it will not be out of place to refer to the evidence regarding the means of the late Tikait. Fakira Lall (P.W. 1) is a very old servant of the Tikait''s family. We learn from him that the plaintiff, respondent has got two villages, the annual income of which was Rs. 2000 before survey and its. 4000 since the survey. We also get from the same witness that in 1964 Sambat, which will correspond to 1907 A.D., the Tikait was indebted to the extent of Es. 20,000. Tikait Dwarka Narayan Singh (P.W. 6), the plaintiff, had deposed to the effect that the debt amounted to Rs. 55,000. Fakira Lall had further deposed that when the Tikait called Jhari Earn in 1968 Sambat (1911 A.D.) he told him (Jhari Rarn) that he will not be able to pay him any salary. This shows that the financial position of the Tikait was far from satisfactory when the sanad was executed. It does not stand to reason that the Tikait circumstanced as he then was will execute a permanent sanad in favour of Jhari Ram, as contended on behalf of the defendants, appellants.

The subsequent conduct of the parties is also relevant in this case, as pointed out above. The importance of such conduct was emphasised by Lord Sugden in his of quoted lines--Tell me what you have done, under such a deed and

I will tell you what that deed means, occurring in Attorney-General v. Drummond (1842) 1 Dr &War. 353 I may refer to Exs. 1 and 4. Exhibit M is an objection by Jhari Ram under Sections. 83(1) and 111(6), Chota Nagpur Tenancy. Act before the Survey authorities. The relief sought was that the plots covered by Ex. A might be entered as a perpetual jagir and not as a mere service tenure. Exhibit 4 is the decision of the Survey Officer. It is dated 18-7-1913. This decision is of some importance. The sanad in question was produced before the officer. The following few lines from Ex. 4 are important:

A registered Sanad is also produced in support of the claim. The Sanad clearly stated that it is a Jagir gift but there is also a stipulation to the effect that the grantee will continue rendering such services. Fakira, Lall who represents the defendant states that the lands are liable to resumption on the objector''s stopping to render services. The first party does not deny this. The Sanad is, however, not very clear. When there is no dispute about the resumability I allow a Jagir Khewat to the objector with resumable rights.

On behalf of the defendants-appellants it has-been contended that Jhari Earn was represented by one Chetlal, during the survey proceedings and that this Chetlal, being a brother of Fakira Lall (P.W. 1) an old servant of the plaintiff, respondent, played him false and might have made an admission which was detrimental to the interests of Jhari Earn. It is to be noted that Ex. M, the objection petition, Was signed by Jhari Ram himself. At the time of the actual hearing of the objection petition, Jhari Ram might not have deen present, but it is difficult to believe that he remained ignorant of the order that was passed. No steps appear to have been taken by Jhari Ram to have the survey entry corrected. Referring to the evidence of Kashi Ram (D.W. 7), one of the defendants, I find that there was a partition in the family of the defendants in 1924 or 1925 in the presence of Chetlal. Chetlal obviously continued in the service of Jhari Ram long after the survey proceedings were over. If he had acted against the-interests of his master during the survey proceedings of 1913, is it likely that he would be retained in service in 1924 or 1925? There are clear indications in the record to show that there was some sort of compromise between the parties about the time of survey. Exhibit 2 is the khewat of the village, and Ex. 3 is the khatian. Exhibit 2 shows that only 4.29 acres of land out of the area covered by ex. a is in possession of Jhari Sah (same as Jhari Ram.) The total area of 13 bighag will be much more than 4.29 acres, There is no clear evidence as to what happened to the rest. Op behalf of the defendants-appellants it was stated that as some of the lands were tanr (high land). Jhari Ram did not care for them. The khewat makes dear mention that the tenure is resumable.

Another circumstance showing conduct is the execution of the deed of gift (Ex. L) and the deed of endowment (ex. k). It may be said that Jhari Ram could not have parted with the jagir land in this way if he knew that the grant was for life only. If the attendant facts are closely examined it will be clear that this conduct of Jhari Ram was not a bona fide one. In the first place both the documents were executed on the same day. In the next place the beneficiaries were members of his own family. The deed of gift, was, as already stated, in favour of his wife. The other document makes clear mention of the fact that the entire management of the dedicated property will remain in the hands of Jhari Ram and his family. Lastly, under the two deeds Jhari" Ram disposed of all the 4.29 acres of the jagir lands of which he was recorded in the Survey as evidenced by the Khewat and Khatian, Exts. 2 and 8 respectively. Exhibit 1 recites that Jhari Ram was old in 1931. He must have known that in view of the entry in the Survey Record of Eights dispute regarding the jagir land was bound to crop up after his death. He therefore made haste to execute the two documents in question. If this conduct shows anything it shows that Jhari Ram apprehended that there was trouble ahead.

The suit out of which the present appeal arises was filed in 1941. It may be asked why the plaintiff waited for about 6 years before he instituted the suit. No adverse inference should be drawn against him from this because he could file his suit any time within the statutory period of limitation.

In my opinion the appeal is without any merit, and would dismiss it accordingly. In the circumstances of the case each party will bear his own cost of this Court.

Manohar, Lall J.

I am also of the same opinion, but wish to make a few observations as to the construction which should be placed upon the document of jagir grant. It is apt to draw attention to the observation of Lord Davey in Beni Pershad Kori v. Dudhanath Roy (1900) 26 I.A. 216:

Whether the use of this word (that is to say, dawami) necessarily imports a perpetual hereditary interest, or whether, notwithstanding the use of the word ''dawami,'' it may be held that upon the considerations of the object and provisions of the pottah as well as the surrounding circumstances the intention to grant a perpetual lease does not sufficiently appear, is a question of some difficulty.

The document in the present case has the word ''dawami'' which does not necessarily import lasting beyond the life of the grantee. The words naslan had naslan and batlan bad batlan are conspicuous by their absence in this grant. We are, therefore, forced to consider the object and provisions of the patta as well as the surrounding circumstances in order to find out whether the intention was to grant a lease lasting beyond the lifetime of the grantee. That this was so, does not sufficiently appear. I am not in agreement with the argument of the Advocate-General that upon the construction of the patta itself it must refer ambiguously to a perpetual grant to be enjoyed by the grantee and his heirs. The surrounding circumstances and the object of the grant have been fully considered by my learned brother, and I agree with his reasonings and conclusions.

There is a further difficulty in the way of the appellants namely that the survey record of rights distinctly states that after the dispute between the parties had been settled it was agreed that the possession of the grantee over a part of the lands which were the subject of the original grant would be considered for his life-time only he gave up his rights to the remaining. The entry in the record of rights must be presumed to be correct and unless it is displaced by evidence to the contrary, the appeal must fail: see the Privy Council cases in AIR 1934 182 (Privy Council) and AIR 1930 45 (Privy Council) . If the evidence and the circumstances disclosed in the evidence leave us in doubt as to the true import and meaning of the grant (which I have already stated is ambiguous), the plaintiff must succeed as the survey record of rights is in his favour. It is also to be observed that the parties gave a go by to the original grant as in the survey record of rights the ancestor of the defendant was entered as in possession not over the whole area covered by the original grant but of a portion only. The learned Advocate-General drew out attention to the fact that in the survey record of rights reference is made to the title deed of the defendant''s ancestors based not on any new arrangement between the parties but to the original document of the jagir grant.

In my opinion, however, the reference to the original document was made by jibe survey authorities for the sake of convenience to show how the defendant originally came to acquire the rights in the properties. But as there was a dispute between the parties and the dispute, was settled, as expressly stated by the survey officer by the defendant''s ancestor agreeing to be recorded as in possession of a resumable grant, it is no longer open to the appellant to argue that we must ignore the whole of those proceedings which as I have said are clearly stated in the order of the Settlement officer.

For these reasons, I am of opinion that the appeal fails and must be dismissed, and in the circumstances each party should bear his own costs in this Court.