Jadu Deo and Others vs Chigu Mahara

Chatterji, J.—The plaintiffs as shikmi ghatwals of a patti of five annas four pies share of mauza Sarsa brought their suit for a declaration that the settlement by the Sub-divisional Officer of Daoghar or the alleged settlement by the Pradhan of the village was ultra vires and without jurisdiction, and that the orders of settlement made by the Sub-divisional Officer on 24th July 1926 and 6th November 1926, and the settlement, if any, by the Pradhan of the village be set aside.

They prayed also for the recovery of possession of the land in suit, in case possession had been delivered to the defendants. Plot 1 measuring roughly about 75 acres had been recorded in the Anabadi Parcha as being jungle in possession of Jadu Deo, plaintiff 1. They had cut away the trees some years ago, and are still the proprietors of the land. The defendants who were the jamabandi raiyata had applied to the Sub-divisional Officer, Deoghar, for settlement of the lands of the plot for reclamation, and this had been allowed in spite of the plaintiffs'' objections. The suit was dismissed by the learned Subordinate Judge and his decision was affirmed on appeal by the District Judge of the Santal Parganas.

Their learned advocate contends, in the first place, that the learned Subordinate Judge had erred in holding that parti and jungle lands are not differentiated; in fact jungle plot is not synonymous with waste land or parti. Mr. Jayaswal on behalf of the respondents argues, that the two are practically synonymous, for there may be trees or small jungles in village waste, and all that the raiyats would require is the permission of the proprietor to cut down the trees, and u/s 16(a) of the Record-of-Rights the proprietor shall not unreasonably refuse such permission.

The learned advocate for the appellant contended, in the next place, that the Record-of-Rights duly prepared according to the rules is conclusive as to rights and has the force of a decree of Court. As against plot 1 the remark "jungle dakhal Jadu Deo" did imply that he was the proprietor not only of the trees but also of the land on which the trees stood. So that he continues to be the proprietor even when the trees are cut away. Mr. Jayaswal for the respondents argues that this particular plot was included in the land of the village having been recorded as plot 1; that this particular plot was not the khas reserve of the proprietor; nor was it a plot excluded from the village under the provisions of Section 15, Regn. 3 of 1872.

It is only relating to such specially reserved and excluded plots that the proprietor has full rights, and he referred to Section 2, part 1 of the Record-of-Rights and-Duties in Pradhani villages: p. 207, Santal Parganas Manual. The proprietor could not exercise the rights covered by Section 2 in such a way as to materially injure the rights of the raiyats specified in Clause (b), Section 16, and further he shall not cause the land included in forest blocks to be brought under cultivation without the permission of the Deputy Commissioner, his rights were therefore subject to all these limitations. He next referred to Section 16 under the heading "village common rights" specially to the provisions contained in Clauses (a), (b) and (c). The village community has joint rights over the waste land of the village; the trees had been cut away and the plot was nothing but the waste land of the village. The third contention urged by appellants'' advocate was that the Sub-divisional Officer had acted without jurisdiction in ordering the settlement now complained of. Section 16(a) of the Record of-Rights provides:

The proprietor or raiyate, if aggrieved by the action of the headman in settling waste land, may object before the Sub-divisional Officer, who, after due enquiry, may set aside, or modify the settlement.

The Pradhan, defendant second party had not settled any part of the lands and the plaintiffs had not objected before the Sub-divisional Officer complaining of any action of the Pradhan. Mr. Jayaswal referred to para. 6 of the plaint and the reliefs (a) and (b) as set forth in para. 9, and to issue 11 framed in the suit. The plaintiffs had disputed the validity of the settlement made by the Sub-divisional Officer as also the settlement made by the Pradhan with the defendants first party. Furthermore u/s 16(g) of the Record-of-Rights:

if any dispute arise regarding the exercise of the rights included in this section the person aggrieved may complain to the Sub-divisional Officer.

The plaintiffs were denying the rights of the jamabandi raiyats to obtain settlement of the plot in question and the dispute had arisen out of that denial. Accordingly the learned Sub-divisional Officer had acted with jurisdiction.

The contentions raised in this appeal relate to matters of general and special interest in the Santal and the case appears to be one of first impression. The matters have, in my view, to be decided by reference to Regn. 3 of 1872 as amended up-to-date, and according to the most recent rules for the conduct of settlement proceedings. It would appear that by Notification No. 12774-S-218-R, dated 5th December 1925, new rules came into force in supersession of Notification No. 1967-L-R, dated 10th April 1900, and all subsequent amending notifications on the subject. Under Rule 16 the Record-of-Rights prepared u/s 13, Regn. 3 of 1872 shall in-Clude: (a) the abstract khatian jamabandi; (b) the Record-of-Rights-and-Duties.

Under Rule 17 there shall be a separate settlement record for each village, whether it be a part of one estate or tenure, or contain the whole or part of several estates or tenures. There shall be a separate rent-roll for each estate or tenure within a village. Under Rule 19 a Record-of-Rights-and-Duties shall be prepared for each village showing the rights and duties of proprietors, headmen and raiyats as ascertained under Regn. 3 of 1872. Rights and duties shall be so recorded that the record shall be clear and complete in itself. Under Rule 20 in dealing with forest rights, the settlement officer may introduce such regulations, due regard being had to the existing rights of landlords and tenants, as to the manner of exercising such rights, and as to the trees or jungle over which they are to be exercised, as to ensure the permanent preservation of the village fuel and timber supply. It will be his duty to demarcate all village common land whether forest, pasture, roads or other land, distinguishing it from waste as not available for cultivation. The settlements which are questioned had been made in July and November 1926 and will therefore be governed by the notification of December 1925.

u/s 13, Regn. 3 of 1872, for every village shall be drawn up a paper setting forth the custom of the village or tribe in regard to facts including Clause (f) for the management and usufruct of the waste land and other matters relating to the internal arrangement of villages and the said paper shall be deemed to form part of the Record-of-Right. The abstract khatian jamabandi is the rent-roll of the village, prepared from the terij and baaed upon the raiyati khatian. The raiyati jamabandi of the village would include ordinary raiyati jotes, jotes of "khariddar" raiyats, Pradhan''s private holding and his official holding. At the end would be entered a note of the total of such exceptional areas as khas karuat," " basauri," " unassessed homestead," " mukarrari lands," " rent-free lands," " chaukidari jagir," and the village waste land." These are added to complete the account of the total village area. In a few villages only village forest reserves are constituted. These are supplementary to the last paragraph of the village enquiry paper. u/s 15, Regn. 3 of 1872, the settlement officer shall demarcate and define the boundaries of each village, and when doing so, he may exclude from such village any large area of waste or forest which may be beyond the reasonable requirements of the village; but it is provided that the exclusion of any waste land from any village under this provision shall not affect any proprietary rights in the land, but such rights shall remain intact.

This being a pradhani village, part 1, p. 207 of the Record-of-Rights deals with the proprietary rights and duties. Details of the rights are given in Sections 1 to 9 and in Section 10 as against the heading general it is provided that the proprietor shall enjoy all the rights and shall perform all the duties of a proprietor according to the customary or enacted laws locally in force except as restricted by this Record-of-Rights. Part 2 deals with the rights and duties of raiyats, including the duties of the headman which are provided in Sections 11 and 12. The duties and the rights of the raiyats are provided for in Sections 13, 14 and 15, and lastly, in Section 16, village common rights are dealt with in Clause (a) to (g). Section 17 deals with the rights of basauri raiyats and Section 18 with the effect of illicit alienation of holdings; and Section 19 dealing with the general rights of raiyats provides that the rights secured to raiyats by this record are to enable them to cultivate and enjoy their holdings with due regard to the proprietor''s rights. The rights cannot be yielded by contract. And no further rights, save as secured by customary or enacted law, may be claimed unless under special contract. These being the provisions the case has to be decided in accordance therewith.

Coming now to the facts the suit plot is plot 1 of the village and is included in the Anabadi Parcha and recorded as in the possession of Jadu Deo. It is not included in the demarcated area of the village waste land available for reclamation. It would therefore be a piece of private land recorded in the possession of the proprietor Jadu Deo who would retain his general rights u/s 10 of the Record-of-Rights as proprietor. u/s 16(a) of the Record-of-Rights the village community has joint rights over the waste land of the village and if the land in question was not waste land of the village the community could not have any joint rights over it. u/s 19 the raiyats were to enjoy their rights with due regard to the proprietor''s rights and could not have any further rights, save as secured by customary or enacted law, and it was not stated that there was existing any special contract between them and the plaintiffs the proprietors of plot 1.

The mere fact that the plot in question was not a khas reserve forest block or a block excluded u/s 15 of the Regulation would not affect the question at all; for even in such blocks the proprietor has full proprietary rights, but he is not allowed to reclaim without the permission of the Deputy Commissioner for the obvious reason that the object and policy of the law would be defeated in case he was allowed to convert or change the special nature of the block which was mainly intended to be a block for the purpose of being utilized as a forest reserve.

The land not being part of the village common waste the Pradhan would not have the rights conferred on him by Section 12(e) of the Record-of-Rights, namely during the term of the settlement to enjoy rent-free such of the village waste as he reclaims himself, and to recover rents at half the settlement rates for so much of the waste as raiyats reclaim; nor would the Sub-divisional Officer be authorized to deal with any part of the land in question or to give it out in settlement to the jamabandi raiyats for reclamation. The point as to whether there was a complaint in this case by the proprietors against the action of the headman is not so very material as it is clear on the facts that no dispute had arisen or could possibly have arisen regarding the exercise of the rights included in Section 16, and accordingly the learned Sub-divisional Officer could not have any jurisdiction to decide the dispute u/s 16(g) of the Record-of-Rights. The learned District Judge observed:

It is said repeatedly that forest recorded merely as "jungle" is part of the village waste land, and the rights in it are governed not by Section 2 but by Section 16.

But these remarks are of very little help when he does not give any reasons or instances in support of them. On the other hand there is nothing in the regulation itself to support his views, The result accordingly is that it must be held that plot 1 in question is the private land of the plaintiffs the admitted proprietors over which they have their proprietary rights and that it is not a part of the village common waste over which the village community would have joint rights. The mere fact that the trees had been cut away and the land in its present condition is nothing but a stretch of wide waste would not at all affect the question of the rights of the plaintiff to the land. The land was anabadi or unreclaimed land at the time the Record-of-Rights came to be prepared and could not have been noted as kamat which would mean cultivated land in the khas possession of the proprietor.

A jungle plot would ordinarily mean and include not only the standing trees but also land on which the trees stood and the observation of the learned Subordinate Judge to the contrary cannot be held to be correct. The trees upon the land were part of the land and the right to cut down and dispose of those trees was incident to the proprietorship of the land as observed by their Lordships of the Judicial Committee in Ruttonji Edulji Seth v. Collector of Tanna [1866] 11 M.I.A. 295 . Regn. 29 of 1814 had been extended to the holders of the Ghatwali lands in the Santal Parganas by Act 5, 1859.

According to the former usages and constitution of the country, the Ghatwals were entitled to hold their lands generation after generation, in perpetuity, subject nevertheless to the payment of a fixed and established rent formerly to the zamindar but now to the Government, and rights were conferred upon them to create mining leases even beyond the term of their own possession. They are therefore the proprietors of the land and there is nothing in the regulation to take away their rights, the exercise of which came to be restricted, having regard to the local requirements and customs of the Santal village. These being all the contentions raised are found in favour of the appellants The decree of the District Judge is set aside and the appeal is allowed, and the suit of the plaintiffs is ordered to be decreed with costs throughout.

Ross, J.

I agree.