H. Mathewson vs Secretary of State

Fact.--The plaintiff had purchased the tenures in suit in sales for arrears of rent and cesses u/s 5 of the Birbhum Regulation No. XXIX of 1814 which, had been made applicable by Government notification. He had been put in possession and had received sanads of appointment for these tenures from Government. But subsequently he was dismissed and deprived of the lands whereupon he tiled the present suit for declaration and possession.

Jwala Prasad, J.

[After setting out facts His Lordship dealt with minor issues as follows:]

On issue No. 3 it was contended by the learned Government Pleader that the Civil Court has no jurisdiction to restore a ghatwal to his service, and as the land is merely an appanage of the service, possession cannot b0 restored either. This is a suit for the recovery of possession of land and the Civil Court undoubtedly has jurisdiction to investigate the claim. The Civil Court will act, it is true, appoint a ghatwal Hemendra Nath v. Upendra Narain [1915] 43 Cal. 473. But it is bound to decide, when the question is raised, whether the land of which possession is claimed has been rightly taken away from the plaintiff or not.

On issue No. 4 the learned Government Pleader contends that the sales at which the plaintiff purchased the tenure and sub-tenures in suit were irregular and fraudulent. The learned District Judge has considered this question fully. If is unnecessary to discuss it now for this reason that the defendants 2 to 11 who were entitled to raise the question have not appeared in the appeal to contest the finding of the District Judge. It is, in my opinion, not open to the Secretary of State to question the sales which were held by his own agents Further the sales have never been set aside and even if they were irregular they were not a nullity and must therefore stand Malkarjun v. Narhari Narhari [1901] 25 Bom. 337.

On issue No. 8 it was claimed by the learned Government Pleader that the suit is barred under Article 14 of the Limitation Act by one year''s limitation and under Article 91 by three years'' limitation. As already stated, this is a suit for the recovery of land and the period of limitation is unquestionably twelve years.

On issue No. If, the contention of the defendant is that the order dated the 6th March 1916, by which the plaintiff was permitted to withdraw from his former suit with liberty to bring a fresh suit on the same cause of action was not in accordance with law. That, however, is immaterial. The Court had jurisdiction to pass the order which has never been questioned and must therefore stand Rajkumar Mahton v. Ramkhelawan Singh 1922 Pat. 44.

I shall now turn to the substantial questions in the case; the nature of the tenure and sub-tenures in suit; the nature of the estate which the plaintiff obtained by his purchase; and the propriety of the plaintiff''s dismissal and its consequences.

A large number of reports by Government offiers and correspondence on the subject have been filed: some on behalf of the plaintiff and some on behalf of the defendants. This constitute the bulk of the evidence in the case and they have swelled the record to an enormous size.

As observed in the case of Raja Muttu Ramalinga Setupatti v. Perianayagum Pillai [1873] 1 I.A. 209, in connection with the reports made by Collectors under the Madras Regulation VII of 1817, they are not to be regarded as having judicial authority where they express opinions on the private rights of the parties, but being the reports of public officers made in the course of duties and under statutable authority, they are entitled to great consideration so far as they supply information of official proceedings and historical facts and also in be far as they are relevant to explain the conduct and acts of the parties in relation to them and the proceeding of the Government founded on them. I shall therefore refer to them to see how fir they throw light upon the origin and incidents of the tenure in question.

The investigation as to the nature and incidents of the tenure involves going briefly into the history of pargana Barabhum appertaining to Manbhum in which the tenure is situate, as gathered from the reports and the correspondence of the Government officers.

[His Lordship then reviewed the history of Pargana Barabhum as gathered from the reports and correspondence of Government Officers and entered in great detail into the discussion of the evidence in the case, and proceeded:]

The decision of this case does not depend upon whether the grant o the tenure was burdened with the service or it was a grant for the purpose of remunerating the services performed, for in the case of Alexander John Forbes v. Meer Mahomed Taki [1870] 13 M.I.A. 438, while holding that in the latter case the grant is determinable when there is no further occasion for the services, and in the tenure burdened with service, the lands are not liable to be resumed when there is no occasion for the performance of those services, their Lordships observed that "they (the grantees) may be liable to forfeit the tenure if they wilfully fail in the performance of this duty." The Right Hon''ble Sir James W. Colvile observed: "Had this been a grant reserving to the zamindar a small money-rent as well as the services, if indeed the latter are reserved to the zamindar, their Lordships would have had no doubt upon the case," namely, that the grantee would have forfeited the tenure if he had wilfully failed to perform his duty; vide also Raja Leelanund Singh v. Kunhya Lull [1872] 17 W.R. 315.

It seems to have been concluded by the decisions of the Judicial Committee that where a tenure is subject to certain services a ghatwal may be dismissed for "neglect of duty or incompetency" even when his tenure cannot be put to an end on the ground that the services were no longer required.

In Raja Lilanund Singh Bahadur v. The Government and Thakur Manoranjan Singh [1868] 2 B.L.R. 114 and Raja Saheb Perahlad Sen v. Maharaja Rajendra Kishore Singh [1869] 12 M.I.A. 292, while dismissing the claim of Government to resume ghatwali tenures in Kharuckpore, their Lordships of the Judicial Committee in assessing the mesne profits for the period during which the Government after resumption was in possession took into account in favour of the Government the value of services which during that period the ghatwals had ceased to render on account of Government being in khas possession upon the theory thus stated by their Lordships: "Now, what is the theory of the ghatwali lands? They are assigned to the ghatwals for maintenance in return for, and in payment of, police duties performed by them, and this remuneration they receive in lieu of wages in money;" vide also Secretary of State v. Sri Raja Kritibas Bhupati Hari Chandan Mahaputra [1915] 42 Cal. 710.

In the case of Manoranjan Singh v. Raja Lelanund Singh [1865] 3 W.R. 84, where the zamindar had granted by a sanad mukarrari istamrari right in the tenure and had made it hereditary subject to the payment of fixed and established rent to the zamindar it was found that the tenure was analogous to the Birbhum tenures subject to the performance of police service and consequently the Government or the zamindar could not defeat the rights of the ghatwals so long as they were willing to perform the service, but their Lordships observed that for misconduct and failure to perform the conditions annexed to their tenure they were, no doubt, liable to be, and sometimes were, ejected and when so vacant the right of nomination no doubt rested with the zamindar.

In the case of Raja Neelanund Singh v. Surwan Sihgh [1886] 5 W.R. 292, where the patta granted by the zamindar showed that the holder of the tenure had engaged to perform certain police duties and the zamindar had reserved to himself the power of suspension or dismissal, it was held that whatever may have been the former right and status of the defendants tenure-holders they became extinct by the patta and the zamindar was at liberty to determine the tenure when the services were no longer required and that there was no necessity of going into the origin, history and character of the ghatwali tenure [vide also Raja Neelanund Singh v. Nusseb Singh [1886] 6 W.R. 80 and Raja Leelanund Singh v. Kunhya Lall [1872] 17 W.R. 315 already referred to.

In the case of Secretary of State v. Poran Singh [1878] 5 Cal. 740 where under the Government letter, dated 5th July, 1806 (similar to letter Exhibit Z-151), the appointment was vested in the magistrate of the Jungle Mahals, as in the present case, and the ghatwal had no evidence to show that he had any title independent of services as ghatwal to hold the land in question, it was hold that the power of appointment in the Magistrate carried with it placing him in possession of the ghatwali lands and that a civil Court cannot reinstate a ghatwal dismissed by the police authorities and that the right to possess the land depended upon the tenure of the office vide also Debakar Singh v. Radhagobind Singh 24 Ind.Cas. 527 and Devi Narain Singh Ghatwal v. Sri Krishan Singh [1864] 1 W.R. 321 (a Birbhum ghatwali case).

The cases of Godadhar Banerjee v. Government [1866] 6 W.R. 326 and Pitambar Deo v. Jagannath Rai Ghatwal [1872] W.R. 130 show that although the Government could not resume or sue for khas possession of a ghatwali village included in a decennially settled estate, it can bring a suit for a declaration of its right to nominate a ghatwal or receive services from a ghatwal and to maintain its nominee in possession as ghatwil. The view has been confirmed in the recent Full Bench case of Hemendra Nath Roy v. Upendra Narain Roy [1915] 43 Cal. 473, which related to a digwar of Ghat Burrah. In that case repeated instances of appointment and dismissal with the corresponding change of possession of the land were given in evidence. Sir Lawrence Jenkins, C.J., held that whether the office was hereditary or not (no sanad was forthcoming) it appeared from the course of succession that there was a general usage that on the death of a digwar hriding office his successor was appointed in his place and the heir''s claim and tenure of office was dependent on the approval of Government. Therefore on the removal of the ghatwal, his successor acquired the valid title to the office only if appointed thereto by the executive Government. To the same effect was the view of Mookerjee, J., who observed that "the office is not hereditary in the senae that the heir of the last owner is entitled as a matter of right to succeed to the office and the holder of the office is liable to be removed for failure to discharge his duties to the satisfaction of the executive Government. On the removal of the digwar, his successor acquired a valid title to the office only if appointed thereto by the executive Government."

The unanimous view of the Court was that a civil Court has no jurisdiction to re-instate a digwar dismissed by the executive Government as unfit to discharge his duties; but where the Commissioner decides against a claimant, not in the exercise of his discretion but upon an erroneous view of the title of the contestant, the civil Court can grant relief by a declaratory decree u/s 42 of the Specif!8 Relief Act, so that the plaintiff may approach the executive Government and seek their decision on the question of the appointment of a successor to the office of a digwar. Upon the principle that the tenure may be available for service and that in case of dismissal the successor of the dismissed ghatwal may easily obtain possession of the properties, the ghatwal is not competent to alienate by private sale or otherwise, nor is the same liable to sale in execution of decree except with the consent and approval of the zamindar where the services are rendered to him, or of the Government where the services are rendered to the Government: vide Raja Lilanund Singh v. Durgawati [1861] W.R. 64, Lala Guman Singh v. Grant [1861] 11 W.R. 292, Sartekh Chandra De v. Changer Singh [1853] S.D.A. 900. (a Birbhum case); Grant v. Bangsi Deo [1871] 6 B.L.R. 652 where it was held that a Birbhum ghatwal was not competent to grant leases in perpetuity, nor could he give a patta binding upon the subsequent ghatwal followed in Narain Mullick v. Badi Roy [1902] 29 Cal. 227. This practically overruled the earlier decision in the case of The Deputy Commissioner of Beerhhoom v. Rungola Deo [1862] W.R. 34.

The above restrictions apply also to a shikmi ghatwali tenure Bally Dobey v. Banei Deo [1882] 9 Cal. 227.

On the same principle only the surplus proceeds of a tenure collected during the lifetime of the judgment-debtor are liable to be taken in execution as being his personal property, but not so the profits after his death. In the case of Ramchunder Singh v. Raja Johar Zooman Khan [1875] 14 B.L.R. 7 the tenure-holder was held not entitled to any share in compensation allowed for the acquisition of lands but only to the interest accruing therefrom during his life-time, inasmuch as the tenure-holder''s interest in ghatwali lands was limited to his life.

The point has been discussed in all its aspects by their Lordships of the Judicial Committee in Nimoni Singh Deo v. Bakranath Singh [1882] 9 Cal. 187. It related to a mahal of jagir in the zamindari of Pachet, succession to which was subject to the sanction of Government (as in the present case), the jagirdar being bound to render public services. One-third of the revenue assessed upon the jagir mahal was retained by the jagirdar forming no part of the zamindari assets on which the jama of the latter was fixed. It was held that whether the jagir was a ghatwali tenure or not, within the meaning of the term as applied in Regulation XXIX of 181 (the zamindari being Pachet adjoining and at one time included in Birbhum), the jagir was analogous to such tenure, as described in the pre-amble te> that Regulation; that the nature of the tenure bad not been altered by the Permanent Settlement after which the services due by the jagirdar remained as before, public services, and continued to be due to the Government; that the zamindar became entitled only to the rent or revenue which was previously due to the Government and in respect of which he was assessed and did not become, entitled to the service in respect whereof one-third of the rent or revenue was allowed as compensation to the jagirdar; that the jagir though hereditary was not subject to the ordinary Rules of inheritance according to the Hindu or Muhammadan Law but was held upon the condition of approval of the heir by the Government; that thus were precluded both division of the jagir mahal upon the death of the holder and alienation during his life-time; that the mahals were not liable to attachment and sale in execution of a decree against the father and predecessor-in-interest of the jagirdar as assets by descent in the possession of the latter. It was found in that case that neither the origin of the jagir nor the precise time at which it was created was known, but that so far back as 1178, B.C. the villages were held by jagirdars who paid Government two-thirds of the annual value thereof as revenue and retained the remanining one-third as remuneration for the services under which the jagir was held. Two-thirds of the annual value was permanently settled as part of the zamindari of Pachet, and the one-third received by the jagirdar in lieu of the services formed no part of the assets of the zamindari in respect of which the Government revenue was fixed. The jagirdars Wf re successively appointed or approved by Government up to the time of Gurucharan Mookerjee appointed in 18)6 in place of Rup Singh who was dismissed for misconduct. Upon these facts their Lordships held: "It is quite true that if the jagirs were transferable without the consent of Government, either by descent to an heir or by voluntary sale or by sale in execution or otherwise, there will be no security that the transferee would be a proper person to discharge the duties in respect of which the lands are held at the reduced rent." The transferee might be a person of questionable or even of bad character as remarked by the Court in the case of Narain Acharjee Chowdhary v. Mohamaya Debia Chawdhrain [1868] 10 W.R. 240 Applying the principles enunciated in the cases referred to above, it becomes immaterial in the present case whether the lands were included in the decennially settled estate of the zamindar or not, for that question could only be relevant if the present case were a suit for resumption. It is also Immaterial whether the tenures were hereditary or burdened with service or were grants on condition of rendering services, for the question could be important only if Mr. Mathewson were dismissed on the ground that the services were no longer required, whereas in the present case he has been dismissed for misconduct and neglect of duty, and on such dismissal he forfeits the tenures whether they were burdened with services or were purely service tenures granted on condition of performing services. It is also immaterial in the present case whether the services were originally of military character, for ever since anything is known of the tenures the holders thereof besides the military duties "doubtless performed police duty" to quote the words of the Government resolution (Exhibit Z-59) of the 18th August, 1876, and they held the lands as remuneration for the performance of the duties.

In the case of Raja Leelanund Singh Bahadoor v. The Government of Bengal [1885] 6 M.I.A. 101 speaking of the Kharuckpore ghatwali tenures, the Right Hon''ble Pemberton Leigh says: "The ghatwali lands were held by a tenure created long before the East India Company acquired any dominion over the country and though the nature and extent and the rights of the ghatwals in the ghatwali villages may be doubtful and probably differed in different districts and different families there clearly was some ancient law or usage by which these lairds were appropriated to reward the services of ghatwals, services which, although they include the performance of duties, were quite as much in their origin of a military as a civil character."

In the subsequent case of Raja Leelanund Singh Bahadur v. Government [1868] 2 B.L.R. 114, Loch, J., observes that these lands were "assigned to the ghatwals, for maintenance in return for, and in payment of, police duties performed by them, and this remuneration they received in lieu of wages in money", and their Lordships of the Judicial Committee in the case between the same parties Raja Leelanund Singh v. Thakur Munorunjun Singh [1873] I.A. 181 held that the holders of such tenures might be "dismissed for neglect of duty or incompetency" and in the case of Alexander John Forbes v. Meer Mahomed Taki [1870] 13 M.I.A. 438 it was held that upon dismissal they may be liable to forfeit the tenure if they wilfully fail in the performance of their duty, though the lands are not liable to be resumed when there is no occasion for the performance of those duties. As a matter of fact ever since the assumption of the charge of the pargana the Government exercised the right of appointment and dismissal, and the dismissed ghatwal forfeited the lands which were made over to the person appointed by the Government in his place.

[His Lordship here referred to some of the appointment and dismissal files which showed that the Government had exercised the right of appointment and dismissing ghatwals and dispossessing them from ghatwali lands and that all parties concerned had recognised the right]

Mr. Mullick, however, contends that Mr. Mathewson having purchased the lands at auction sales in pursuance of the Government notification extending Section 5 of the Birbhum Ghatwali Regulation to the tenures in question, these tenures became saleable and consequently Mr. Mathewson could not be evicted from them on account of his failure to perform the services, or dismissal from the office. There is no substance in this contention. Mr. Mathewson purchased the lands under the Government notification the terms whereof were that the purchase shall be on the:

same conditions in respect of the payment in future of rent and cesses and the performance of the duties for the maintenance of the public peace to which the defaulter was liable at the time when the tenure was made over or sold.

Mr. Mathewson himself applied for the extension of Section 5 of Regulation XXIX of 1814 (Birbhum Regulation) and it was at his repeated representations that the Government extended the said provisions. He was feeling difficulty in realizing his arrears of rent, and having obtained the benefit of the extension of the provisions he cannot be permitted to turn round now and say that his purchase of the tenure was not subject to the conditions of rendering services to the Government and that the sanad obtained by him, whereby he was to hold the lands only upon the condition of performing the services, was null and void, and not binding upon him.

Mr. Mullick at one stage wanted to dispute the validity of the extension of the Regulation and of the sale held thereunder. He wanted to argue that the sale held under the Regulation did not alter the character of the tenure. He soon perceived the danger of the argument and the possibility of its being used against himself, and he gave it up. It is obvious that if the extension of the Regulation was invalid, the sales were, therefore, also invalid and Mr. Mathewson did not acquire any right, under the sales, in the tenures in question, and now the tenures are in possession of the old holders, the rightful owners thereof; as according to Mr. Mullick, Mr. Mathewson cannot claim to eject them. His claim to the tenures is based entirely upon his purchases and if the purchases are invalid he has no title to them and has not acquired any by adverse possession, he being only a recent purchaser. The learned Government Pleader took advantage of this argument of Mr. Mullick and urged that the sales were all invalid and fraudulent. We have already shown that there is no substance in this contention. No fraud was definitely pleaded, nor was evidence directed towards it, and the evidence is overwhelming that the sales were held bona fide for real rent decrees and under the notification issued by the Government extending Section 5 of the Birbhum Ghatwali Regulation. We have not at this stage to go into the irregularities of the sales, and no substantial irregularity has b8en pointed out, for we are not at present concerned with, the setting aside of the sales. This is not a suit for that purpose and the time and stage for impugning the sales on those grounds has long passed.

Now, the Government had undoubted power under the Scheduled Districts Act of 1874 to extend the provisions of the Birbhum Ghatwali Regulation or any other act in a restricted form. The Regulation was, therefore, validly extended.

Mr. Mullick then contends that Mr. Mathewson having purchased the properties for valuable consideration at auction sales, he cannot be deprived of the lands upon the ground of his dismissal. In this also Mr, Mullick is mistaken, for whatever be the consideration for the sale--though Mr. Gait''s letter of 1906 shows that the sales were for inadequate prices--the sales had taken place on the conditions set forth above and therefore Mr. Mathewson is bound by the terms of the conditions, one of which was that he will hold the land only so long as he will remain a ghatwal and will lose the lands in ase of his dismissal.

Again, it was argued that the sale conferred all the incidents upon the tenure which the Birbhum ghatwali tenures have got, which are cohered by the Regulation in question.

In the first place, all the provisions of the Regulation were not extended but only that which provided for the sale of the lands for arrears of revenue with the conditions attached to it. Therefore the tenures in question will be governed by the terms under which they were sold. In the second place, Birbhum ghatwali tenures themselves though hereditary are liable to be forfeited on the dismissal of the holder thereof as well as any other tenure of that nature Alexander John Forbes Meer Mahomed Takie [1870] 13 M.I.A. 438, Raja Lilanund Singh Bahadur v. The Government and Thakur Manoranjan Singh [1873] I.A..181, The Secretary of State v. Poran Singh [1878] 5 Cal. 740, Debakar Singh v. Radhagobinda Singh 24 Ind.Cas. 527, Devi Narain Singh Ghatwal v. Sri Krishan Singh [1864] 1 W.R. 321, Pitambar Deo v. Jagannath Rai Ghatwal [1872] W.R. 130, Godadhar Sanerjee v. Government [1866] 6 W.R. 326, Nilmafd Singh Deo v. Bakranath Singh [1882] 9 Cal. 187 and Ramchunder Singh v. Raja Johar Zooman Khan [1875] 14 B.L.R. 7.

Therefore even if the tenure in question was governed by the incidents of the Birbhum Ghatwali Regulation, the dismissal for neglect of duty or misconduct will entail forfeiture. Whether the Government has or has not a right to resume the tenure (and we are not concerned with this question), it certainly has a right to appoint a ghatwal and to receive services from, the person appointed and to maintain its nominee in possession of the ghatwali lands Godadhar Banerjee v. Government [1866] 6 W.R. 326. and Pitambar Deo v. Jagannath Rai Ghatwal [1872] W.R. 130.

There should be no confusion between the resumability of a tenure and the forfeiture thereof on account of dismissal of the holder thereof. The one has nothing to do with the other as is clear from the aforesaid authorities.

Therefore I hold that Mr. Mathew-son took the tenure in question with the condition that he would remain in possession of it only so long as he continued to be the ghatwal and would lose the same on his dismissal.

One behalf of Mr. Mathewson it is said that the dismissal was not proper. We are not competent to enter into that question as was held in Debakar Singh v. Radhagobinda Singh 24 Ind.Cas. 527, Devi Narain Singh Ghatwal v. Sri Krishn Singh [1864] 1 W.R. 321 and Hemendra Nath Roy v. Upendra Narain Roy [1915] 43 Cal. 473.

Even if his dismissal were not proper the question can only be considered with a view to see if he has been wrongfully deprived of the lands in question, for the recovery of which he has brought the present suit. If, however, he has been dismissed for misconduct or neglect of duty, he has forfeited the lands in question and cannot get any relief.

In the present case Mr. Mathewson was dismissed on account of his continued absence from the country and not having returned to his duties when required to do so by the Deputy Commissioner. It may now here be repeated, what has been said above; as to the necessity which the Government felt of framing Rules for the appointment of substitutes in case of the auction-purchaser of the tenures not being willing himself to serve.

The tenures were not saleable, and the Government used to appoint proper persons to be ghatwals and to perform the duties and to settle the lands for the said purpose. Naturally after the introduction of Section to of the Birbhum Ghatwali Regulation, the tenures passed into the hands of the auction-purchasers. It was, therefore, necessary to frame Rules for the performance of the duties by substitutes or deputies. These Rules (Exhibit Z-156) are contained in Government letter, dated the 28th March 1907. Under the Rules the nominee of the purchaser was to be approved by the Deputy Commissioner who had the right of removing the nominee and appointing a substitute without further reference to the purchaser and the purchaser was to continue to be responsible for the performance of the duties by himself and his substitutes. Some of the sanads obtained by Mr. Mathewson mention the names of the nominees who were approved of by the Deputy Commissioner, but he was, under the Rules framed by Government, personally responsible for the conduct of his subordinates and deputies.

[Then his Lordship referred to the evidence and to correspondence which in his Lordship''s opinion showed that Mr. Mathewson had been dismissed for incompetence, neglect of duty and misconduct and proceeded.]

Now, the appointment files referred to above show that for absence from the ghats and for remaining away without leave and for other causes the Government exercised the right of dismissal, in most of which Mr. Mathewson himself moved in the matter for dismissal of the defaulting ghatwals, and upon dismissal the lands were forfeited and made over to the newly appointed ghatwal.

Therefore we cannot say that the dismissal in the present case was not justified, and it is certain that dismissal for any of the reasons aforesaid entails forfeiture. Mr. Mathewson admits in his plaint that the Government has been exercising the right of appointment and dismissal, particularly for misconduct. Therefore the Government exercised the right which they possessed in dismissing Mr. Mathewson.

Therefore the reliefs (a) and (b) regarding the declaration as to the dismissal being illegal, improper and without jurisdiction must fail. The consequential relief in Clause (c) for declaring his right to the properties and awarding possession thereof must also fail.

The result is that the decree of the Court below is affirmed and the appeal is dismissed with costs.

[The further portions of his Lordship''s judgment are not material to our report.]

Ross, J.

I agree