Jogendra Narain Singh and Another vs Radha Prasad Singh and Another

Manohar Lall, J.—This is an appeal by the plaintiffs against the judgment and decree of the learned Subordinate Judge of Deoghar dated 10th September 1934, by which he dismissed the plaintiffs'' suit which they had instituted for a declaration that Kunjora was a Ghatwali tenure entitled to be held generation after generation an perpetuity subject to the payment of fixed and established rent and subject also to the performance of certain duties and (for a further declaration that the dismissal of plaintiff 1 from the office of the Ghatwal was ultra vires and in the alternative for a declaration that the plaintiff second party as his son was entitled to and eligible for the appointment for the office of Ghatwal in his place and that the appointment of the defendant first party was illegal and without jurisdiction. The plaintiffs also claimed that either plaintiff 1 or plaintiff 2 may be placed in possession of the Ghatwali of Kunjora by evicting the defendant first party; there was also a claim for mesne profits. The Secretary of State for India in Council was impleaded as a second party but no relief was sought against him beyond the fact that the plaintiffs wanted the decision in the presence of the Secretary of State. The learned Subordinate Judge has dismissed the suit of the plaintiffs. Hence the appeal before us.

The facts necessary for the determination of the matters which are in controversy in this case are no longer in dispute (the only dispute is as to the legal rights of the parties and as to the inference to be drawn from certain documents) and may be shortly stated. The Kunjora Ghatwali in dispute (which will be hereinafter referred to as "the Ghatwali") bears touzi No. 1/36 Tappa Sarath Deoghar and is admittedly a Ghatwali tenure governed by Birbhum Ghatwali Regulation, 29 of 1814.

It is also admitted that this Ghatwali is descendible from generation to generation but nevertheless subject to payment of fixed and established rent to the zamindar of Birbhum through the Deputy Commissioner of the Santal Parganas and also subject to the performance of certain duties for the maintenance of the public peace and for supporting the police. It is also common ground that the plaintiff first party succeeded1 to this Ghatwali in the year 1904 on executing a muchilka in the customary and ancient form which is to be (found at page 15 of the paper book and beears date 7th September 1904. Since then the has been in possession of the Ghatwali which is 14 square miles in area, and from which he has been dispossessed by reason of an order of dismissal by the Commissioner of the Santal Parganas dated 15th March 1930, with effect from 1st April following.

The circumstances which led to the passing of this order of dismissal are admittedly these. By Regulation 4 of 1910 (a regulation to provide for the organization and maintenance of rural police in Santal Parganas) the mode of performing a part of the duties of the Ghatwal in supporting the police was altered in the manner prescribed under Sections 6, 7 and 8, that is to say, the Government itself determined the pay of the chaukidars employed in each village in this Ghatwali and fixed the amount required for their salaries and equipments and the Ghatwal became liable to pay the amount so determined by the Deputy Commissioner u/s 7.

By the rules framed by the Local Government under the, provisions of Section 25 of this Regulation, the Ghatwal was required on the date fixed by the Subdivisional Officer for payment of the dues of these chaukidars to "bring or send to the thana the sums due to the chaukidars," in order that these dues shall be paid to the chaukidars by Gazetted Officers or Police Officers. Appellant 1 paid the amount so determined for the payment of the chaukidars regularly up to 1923 but in 1924 he defaulted and the amount in arrears was sought to be realized from him by a distress warrant issued u/s 8(2) of the Regulation of 1910.

In the following year he again defaulted and a distress warrant had again to be issued but a very small sum of Rs. 3 was realized and no further moveable property was available to be seized in execution. The Government thereupon gave warning to this Ghatwal that he was continually defaulting in paying the dues of the chaukidars in the manner prescribed and also that he was frustrating the realization of the arrears by concealing his moveable properties. The only explanation which plaintiff 1 gave on 10th August 1925 by a written petition was that he was unable to borrow the money to pay to the chaukidars.

Accordingly, the Deputy Commissioner on 29th August 1925 recommended that the Ghatwal should be dismissed from his Ghatwali and the office should pass to a person next entitled to hold it. These facts are clearly stated in Ex. O at pp. 20 and 21. The matter of the dismissal of this Ghatwal was thereafter allowed to remain unsettled for some time. It appears that the Government gave him sufficient time as locus poenitentia but appellant 1 instead of taking any lesson from the warnings began to default even in payment of the arrears of road cess which were due from him with the result that a number of certificates were issued under the Public Demand Recovery Act for the realisation of arrears of cess amounting to such small sums as Rs. 46-4-6 in September 1928 (see p. 24), for realizing Rs. 77-5-6 in December 1928 (see p. 26), and for realizing another small sum of Rs. 46-4-6 on the same date in December 1928 {see p. 28). A perusal of thevarious orders in these certificate cases shows that the proceedings for realization were unduly and deliberately protracted due to the attitude taken up by the Ghatwal and even warrants of arrest had to be issued against him. The payments were ultimately made on 20th February 1930.

In the meantime Government issued a more serious warning to the Ghatwal on 13th August 1929 and called upon him to show cause why he should not be dismissed from the Office of the Ghatwal on account of "being a habitual defaulter in the payment of Government dues and for continued wilful breach of the terms of muchalka" (p. 31). On 15th March 1930 Mr. (now His Excellency Sir Maurice) Hallett, Commissioner of Bhagalpur, in a very carefully considered order came to the conclusion that

the Ghatwal has habitually defaulted in payment of the choukidari tax which he is bound to pay u/s 8 of Regulation 4 of 1910 (Santhal Parganas Rural Police Regulation) as well as under the terms of his muchalka by which he is bound to carry out certain police duties in his estate. Failure to pay choukidars for months in the end must react on the efficiency of that force and prevent police work being carried out in an efficient manner. For a breach of the term of his muchalka he is liable to dismissal and a fine of Rs. 1000; He has defaulted in payment of choukidars continually since at least 1924. He has been given ample warning both in this Court and in that of the Deputy Commissioner but has paid no heed to that warning. For his failure to pay choukidars alone the Ghatwal is liable to dismissal and it is unnecessary for me to deal with the question of the other dues. I accordingly direct that Babu Jogendra Narayan Singh Ghatwal of Kunjora be dismissed from the office of Ghatwal with effect from 1st April 1980.

The Ghatwal sent a memorial to the Local Government but the Governor-in-Council by a resolution, to be found at p. 38, bearing date 15th August 1930 rejected the memorial regretting that it was necessary for the Government to dismiss the Ghatwal of Kunjora from his Ghatwali and added:

But the persistent failure of the, Ghatwal in spite of warnings to meet the obligations, upon the observance of which the Ghatwali tenure is founded, left Government no option in the matter. In the circumstances, His Excellency in Council is not prepared to review the matter.

It is clear from the above narrative of facts that appellant 1 was dismissed from the Ghatwali on account of his persistent default in carrying out the statutory obligations to be found in Sections 7 and 8 read with Rule 2 at p. 130 of the Manual framed u/s 25 of the Regulation of 1910. The question which is very seriously argued before us is whether the Government have a right to dismiss a Ghatwal for failure to pay the choukidars dues.

It was argued by Sir Sultan Ahmad, appearing for the appellant, that when the Government has by a statute commuted a part of the duty of the Ghatwal into a money demand the amount and the mode of realisation whereof are specifically fixed by statute, the only remedy which the Government have is to realise these dues in the manner provided in Section 8(2) and that non-payment of these dues by the Ghatwal cannot give Government any right to dismiss him from his office.

Mr. P.R. Das on behalf of the respondent argued, on the other hand, that Government have full right to dismiss the Ghatwal for non-payment of arrears of rent by the express provisions of Section 5 of Regulation 29 of 1814 and that the concluding portion of Clause 8, Sub-section 2 of the Regulation of 1910 namely "the Deputy Commissioner shall recover the same by the process prescribed for the recovery of arrears of Government revenue" must mean that the provisions of Section 5 of the Regulation of 1814 are incorporated in the later Regulation by necessary implication and therefore the Ghatwal was liable to be dismissed for non-payment of choukidari dues also. He argued in the next place that even if we do not accept this contention as sound, the Ghatwal is liable to be dismissed on the express terms of the muchalka, which he executed in 1904 and he sought to justify the order of dismissal by bringing in the default in the present case within the words:

Further I shall continue to comply with the orders which will be issued by Government from time to time without any objection; and I shall make no delay in complying with the laws and orders that will be passed on me.

The learned Advocate-General appearing for the Secretary of State supported this argument and also asserted that the Ghatwal has not obeyed the earlier terms in the muchalka that:

Further without the permission of Sarkar (Government) I shall not dismiss my servants, who are engaged for performing the police duties.

The learned Advocate-funeral suggested that the servants referred to in the last quotation are the choukidars. In my opinion this contention of the learned Advocate General is not sound. The servants refer, red to in this last quotation are the servants who are engaged by the Ghatwal himself and not those choukidars who by the express terms of Rule 2 (to be found at p. 137 of the Santhal Parganas Manual) are to be appointed, dismissed and suspended by the Sub-divisional Officer himself. (This rule is made specifically applicable to the Ghatwali in question. See the concluding portion of Rule 3 at p. 140.) I do not agree with the contention of Mr. P.R. Das that Section 5 of the Regulation of 1814 is by necessary implication incorporated in Section 8(2) of the Regulation of 1910, for the simple reason that if that was the intention Of the Legislature, they could easily have said so.

In truth the matter is not open to any doubt if the provisions of Public Demand Recovery Act, namely Bihar and Orissa Act 4 of 1914 are considered. Section 3, Sub-clause 6 defines "public demand" as an arrear or money mentioned or referred to in Schedule 1 and Section 3. Schedule 1 at page 24 mentions:

Any money which is declared by any law for the time being in force to be recoverable or realizable as an arrear of revenue or land revenue, or by the process authorized for the recovery of arrears of revenue or of the public revenue or of Government revenue.

The words underlined (here italicised) by me are the very words used in Section 8 (2) of the Regulation of 1910. (The earlier Public Demand Recovery Acts which were repealed by Section 2 of the Act of 1914 were similar in terms on this matter.) The learned Advocate-General even went to the length of contending that all the processes which were issued from time to time for, the realization of the choukidari dues from the Ghatwal by distress warrants were all illegal but this is an erroneous contention.

In my opinion, the Ghatwal was not liable to be proceeded against under the provisions of Section 5 of the Regulation of 1814 for non-payment of choukidari dues. If this is so, Government have no right to dismiss the Ghatwal acting under the provisions of Section 5(2) in cases where he is in arrears for the payment of the choukidari dues. The power to dismiss a Ghatwal then for non-payment of choukidari dues must be found, if at all, elsewhere and the critical question is whether such power is given to and remains in the Government for all time as a customary right evidenced by the muchalka which this very Ghatwal executed in 1904.

A perusal and study of the luminous judgments of their Lordships of the Privy Council in the celebrated cases reported in Nilmoni Singh Deo v. Bakranath Singh (1883) 9 Cal 187, Satya Narain Singh v. Satya Niranjan Chakravarti A.I.R.1924. P.C. 5 and Ashutosh Deo v. Bansidhar Shroff A.I.R.1928. P.C. 177 confirm, me in the view that the ruling power always has a customary right, as a necessary incident of a Ghatwali tenure, to dismiss a Ghatwal for misconduct or for non-payment of his dues which are as a matter of ancient and customary form enumerated in the muchalka. The terms of the muchalka are very clear and unambiguous and in my opinion the failure of the Ghatwal to obey the statutory duty of bringing in the money on the appointed day for payment to the choukidars amounted to a clear violation of the terms of the muchalka inasmuch as

he failed to comply with the orders issued by the Government from time to time and he made a delay in complying with the laws and orders that were passed upon him;

in fact he never paid the arrears in full, if at all, since 1924. The Regulation of 1910 is a Regulation which by the defining clause in Section 3 applies to the Ghatwali of Tappa Sarath in Deoghar. The Government gave repeated warnings to the Ghatwal but he persistently refused to pay the arrears and in my opinion Government were fully justified within the terms of the muchalka to dismiss appellant 1 from his office, with effect from 1st April 1930 and I am unable to give any relief to appellant 1.

It will now be convenient to state the facts which fed to the rejection of the claim of appellant 2 to be appointed as a Ghatwal of the Ghatwali in place of his father, who, I have just held, was rightly dismissed by the executive authorities. On 31st May 1930, 16 candidates applied to be appointed as a Ghatwal of Kunjora in place of the dismissed Ghatwal; the first of these applicants was Raj Kumar Singh, appellant 2 before us. The Deputy Commissioner submitted his remarks as to the qualifications and claims of each candidate to the higher authorities while forwarding their applications. Regarding this appellant, he wrote as follows:"if it be possible to appoint him in place of his father he may be selected": Ex. MM p. 35.

On 1st August 1930 the Commissioner of Bhagalpur informed the Deputy Commissioner that he did not think "that the appointment of Babu Raj Kumar Singh, son of the dismissed Ghatwal, is desirable," and proceeded to give his views why he selected the defendant-respondent and appointed him as the Ghatwal of Kunjora (Ex. P, p. 37). It will be noticed that no reason whatsoever was given as to why this appellant was considered undesirable. If the matter stood here, it would be difficult to support the case of the defendant-respondent but the appellant applied to the Commissioner for a review of his order dated 1st August 1930 and the Commissioner disposed of this review application by another order on 19th September 1930 (Ex. H, p. 39) by which he refused to review his former order.

In this order the Commissioner gives the following reasons:

The former Ghatwal was dismissed for consistent refusal to pay the chowkidari tax. The petitioner is the son of the former Ghatwal who claims that ''the dismissal of a Ghatwal for neglect of duties is tantamount to his civil death and the next heir succeeds to him, and consequently on the dismissal of his father by the order of this Court, the appellant has become entitled to the Ghatwali in question and he has the sole right of appointment as a Ghatwal to the said estate.1 The son was not appointed as the appointment of the son would seem to have been merely equivalent to reinstatement of the father with the tenure free from incumbrances. As the former Ghatwal had in the past shown that he was of extravagant habits and had encumbered the tenure with debts so that he was unable to pay his taxes, it did not seem desirable to appoint the son. I do not agree with the view of the law expressed by the petitioner that on the dismissal of the father the son has a right to appointment.

The appellant thereafter presented a memorial to the Local Government but the same was rejected on 2nd April 1931 by a resolution printed at p. 42 which does not give any reasons. In the meantime the present suit had been lodged on 30th March 1931.

The facts stated above are admitted and the questions which fall to be decided are (1) whether the Government were justified in refusing to appoint the appellant as the Ghatwal for the reasons stated by them in the order of the Commissioner dated 19th September 1930 when the Ghatwali was admittedly hereditary and perpetual and (2) whether this Court can interfere with the order of the Executive and place the appellant in possession of the Ghatwali.

In the numerous cases cited at the Bar, which we have carefully considered, I do not find any case which directly deals with the question before us. In all the cases the question arose on the death of the former Ghatwal but there is no case in which the identical question, namely the right of the son to be appointed as a Ghatwal in place of his father who was dismissed for misconduct, has been directly considered.

In the records of this case some correspondence is to be found which indicates the views of the Government regarding the question at issue before us. Ex. 3 at p. 9 deals with the question whether the Ghatwali tenure is heritable so long as there is a member of the family of the original grantee competent to perform the functions of Ghatwali.

This question in its broadest aspect was set at rest by the Full Bench ruling of the High Court in Koolodeep Narain Singh v. Mahadeo Singh (1866) LR 559 in which it was laid down that a grant, although originally for life only, must be regarded as heritable if long usage and transmission from ancestor to heir for several generations without objection could be proved.

Regulation 29 of 1814 recognizes the hereditary nature of the Ghatwali tenures of Birbhum and the Privy Council in Leelanund Singh v. Government of Bengal (1854) 6 MIA 101 extended the privilege to the Bishunpur Ghatwali Jaghirs; this being so, it seems to the Lieutenant Governor to be very hard indeed to deny recognition, in the case of the petitioner, to the hereditary nature of the Lakhanpore Ghatwali tenure. It has been in the same family from a period anterior to the British Rule, and it lapsed only because of the physical incapacity of Kartic Roy, its last holder, and husband of the petitioner.

Mr. Barlow in his decision quoted in your para. 9, stated that the family have been tried and found wanting. This is a vague and inappropriate reason to give for breaking the succession. If Kartic Roy or any of his predecessors had been found wanting, the individual ought to have been removed but to put a ban on the whole family is not equitable with regard to your statement that Banwari, the nephew of Kartic Roy, being the son of a thief is incapacitated for the office of Ghatwal, I am to say that in such a matter as this, the sins of the father should not, in the Lieutenant Governor''s opinion, be visited on the son.

Under these circumstances, the Lieutenant Governor desires that you will recognize the hereditary nature of the Lakhanpore Ghatwali tenure, and appoint Banwari to the post of Ghatwal if he be found fit for it. The hereditary nature of the tenure being accepted, the petitioner cannot be ousted from her right to provide for the discharge of the duties of the post and till Banwari has been tried and found wanting or until the widow is unable to provide for the due discharge of the ?duties of the post the succession cannot be broken.

This is a quotation from the letter conveying the opinion of the Lieutenant Governor to the Commissioner of the Bhagalpur Division and bears date 3rd October 1882. This view was again accepted on 27th May 1883 in Ex. 5, p. 12, which recognizes the principle that

the family cannot forfeit their hereditary title and lands for ever because the man who was in charge of the Ghatwali at the time of a certain dacoity took place failed to give information about it.

On 22nd June 1920 the same view was followed in the order of the Commissioner of Bhagalpur (Ex. 2, p. 18) in these words:

According to those orders, a hereditary Ghatwali tenure cannot be taken away from a family because the incumbent at any time misconducts himself or proves unfit to discharge his duties, so long as there is some other member of the family fit for the post and in the case of a minor so long as some suitable arrangement can be made for the performance of the necessary duties until the minor comes of age.

In my opinion this is the correct view of the law and of the incidents attached to and regulating this Ghatwali. I do not agree with the contention put forward by Mr. P.R. Das that as soon as the Ghatwal is dismissed for misconduct the result is that the whole tenure is forfeited and therefore Government have a right to appoint any one whom they like.

This argument rests upon a misunderstanding of the position of the Ghatwal and in treating his case as the case of a mere Jaghirdar who has "a jaghir assigned for the support and remuneration" and such a jaghir

may be no more than wages in kind, arising from the use of a plot of land customarily in the occupation of the ghatwal for the time being, and in such a case personal service by the employee and personal selection and appointment by the employer may well be in every case essential incidents of the relationship. Incompetence and misconduct on the part of the employee may be causes for removal of the ghatwal and resumption of his holding per Lord Sumner in the case of Satya Narain Singh v. Satya Niranjan Chakravarti AIR 1924 P.C. 5

But this is not the case here. The area of land in this case which belongs to the ghatwali is, as already stated, 14 square miles, the profits derived by the ghatwal from the ghatwali are large; therefore the case of this ghatwali falls within the second class of cases mentioned by Lord Sumner at p. 200 in these words:

On the other hand, there are great estates, whose proprietors are found holding them or parts of them upon the terms of providing that ghatwali services shall be forthcoming, either regularly or when required; services which it is impossible for the proprietor himself to render in his own person, and which become possible to him and to those to whom he renders them simply by virtue of his possession of the lands thus granted. In such cases the ghatwali tenure,, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the office to descend to some-member of his family, if not necessarily to the senior member.... A recognized right to be appointed ghatwal, then takes the place of a formal appointment; a recognized right in the superior to dismiss the ghatwal, if he is no longer able and willing to render the service required by his tenure, and to appoint another person to the office and the tenure of the lands, then readily suffices to maintain in perpetuity the incidents of the tenure.

In other words the lands of this ghatwali are appropriated to the maintenance of the ghatwal who performed and was able to perform the duties as a ghatwal (see the case in Joykishen Mookerjee v. The Collector of East Burdwan (1863) 10 M.I.A. 16 at pp. 44 to 46. If the argument of Mr. P.R. Das was correct the hereditary nature of the ghatwali would disappear the moment the ghatwal was in default in performing certain services which were required of him and it would be most inequitable and illogical and against the customary right, which has prevailed in this ghatwali tenure, to visit the sins of the father upon the whole family and to eject the whole family for no fault of theirs.

In the present case, the son is willing to perform the services, he offers to carry out the duties of the ghatwal and pay up the arrears of his father, the deceased ghatwal, and unless it is found that he will not be able to or is unfit to discharge the duties of the ghatwal his recognized right to be appointed as ghatwal remains intact. At p. 206 in Satya Narain Singh v. Satya Niranjan Chakravarti A.I.R.1924 P.C. 5 referred to above, Lord Sumner anticipates to some extent the question that has arisen here and has observed in this manner:

Since the tenure is a service tenure, the lands are liable to forfeiture if the obligation of service ''s expressly repudiated while the rights of the ruling power are similarly sufficiently safeguarded by holding that the succession of an heir incapable of rendering even the vicarious service involved in the provision of this armed force, might be treated as being in itself a ground of forfeiture in the person of that successor, if not in the persons of the entire family, for it is what might be called an anticipatory repudiation.

That is to say, in each case it must be decided whether the misconduct of an incumbent involves the forfeiture in the person of that incumbent only or in the persons of the entire family by applying the doctrine of anticipatory repudiation. An instance of this kind would fee where the ghatwal says, as if on behalf of the entire family, that they are not the ghatwals at all and refuses to perform the services which are the necessary incidents of the tenure.

In such a case there is an express repudiation by the entire family and the ruling power would be justified in taking away the tenure from the entire family. Again the ruling power may think that the incumbent who is being removed has left no heir who is capable of rendering even the vicarious services involved as a part of the obligations of the holder of the tenure. The ruling power in such a case again would be justified in holding that these circumstances are themselves a ground for forfeiture in the persons of the entire family. Applying these principles to the present case, it is clear to my mind that the appellant has a recognized right to be appointed a ghatwal in the place of his father, the ghatwali being admittedly hereditary and perpetual, provided only he is fit to discharge his duties and meet his obligations.

The question, then, is whether this appellant is a person who is found incapable of performing these duties or otherwise unfit to be appointed a ghatwal. The decision of fitness for the post of a ghatwal must ordinarily rest with the executive authorities subject to this important reservation that if the executive has simply made a pretence of dealing with the question of the fitness of the ghatwal who claims to be recognized as the next ghatwal and declares him unfit in an arbitrary manner or in a manner which the law would not recognize then the Civil Courts are free to interfere. As an instance of this, attention may be drawn to the case in Lall Dharee Roy v. Brojo Lall Singh (1868) 10 W.R. 401 where the Calcutta High Court pointed out that this Courts will interfere where the heir is not being appointed a ghatwal on the ground that he was not sufficiently dutiful and respectful to his own father in his lifetime. Jackson, J. observed:

I think that in coming to this decision and so-withholding from the plaintiff the inheritance to which he was entitled, the Commissioner did an. act beyond the scope of his authority, and which the plaintiff was quite competent to question by a. suit in the Civil Court. It is clear that the plaintiff was actually entitled to succeed, and consequently the suit was properly entertained and correctly decided.

Mitter, J. agreeing added:

A ghatwali tenure in Birbhum is not resumable at the mere good-will and pleasure of the executive authorities.

In other words the Civil Courts will not accept fanciful, arbitrary or pretended exercise of discretion by the executive in-refusing to appoint a ghatwal.

Now what are the facts in this case? The Commissioner, as already pointed out, has given reasons for holding that in his view the appointment of the appellant is not desirable, because the appointment of the son would be merely the re-instatement of his father and as the father has shown that he was of extravagant habits and had encumbered the tenure with debts so that he was unable to pay his taxes, it was not desirable to appoint the son. We were informed that some of the encumbrances were created by the old Ghatwal in favour of his wife. The reasons are not quite satisfactory and it is easily open to another officer or tribunal to: take another view but. I cannot say that it is not reasonably possible to take the view which the Commissioner has taken and with which the Local Government have agreed on further consideration.

Similar reasons were accepted as good grounds for the dismissal of a Ghatwal in Debakar Singh Vs. Radhagobindo Singh and Others, . In these circumstances, with great reluctance, it appears to me that it is impossible for me to say that, the executive authorities did not reasonably consider the hereditary claims of this heir to be appointed as a Ghatwal on the removal of his father--the claim was considered on its merits and rejected--it is also impossible for me to say that the exercise of discretion by the executive in this case was, arbitrary or fanciful or pretended.

I shall now briefly deal with the cases relied upon by Mr. P.R. Das in support of his contention that the Civil Courts have no jurisdiction to re-instate a dismissed Ghatwal or to force a Ghatwal on the executive authorities. The first case cited by him is the case in Debee Narain Singh v. Sree Kishen Sein (1864) 1 W.R. 321. In this case the only question as stated in the judgment is

whether the Civil Courts can interfere to re-instate a Ghatwal, who has been dismissed by the Police authorities, in the lands which he formerly held as Ghatwal.

It was found as a fact that the plaintiff was dismissed by the authorities "for not performing the police service, the performance of which was one of the conditions on which he held those lands". It is to be noticed that the plaintiff contended that, although the police authorities were competent to dismiss him from the office of the Ghatwal, they could not by that dismissal affect his right to continue to possess the Ghatwali lands and as was pointed out in the next sentence "it is admitted that he is liable to immediate dismissal by the police authorities if he fails to perform his service in a proper manner". In my opinion this case is no authority for the proposition contended for by Mr. P.R. Das; the plain, tiff had admitted that he was liable to dismissal but nevertheless wanted to assert his right of remaining in possession of the Ghatwali lands. In other words he wanted to sever the office from the lands.

The next case relied upon is the case in Secretary of State v. Poran Singh (1880) 5 Cal. 740. In this case the Courts of fact appear to have found that the Ghatwal was guilty of misconduct and came to the conclusion:

We entertain no doubt that the plaintiff has no right to be re-instated in the Ghatwali land unless the executive authorities will condone his conduct and restore him to his situation.

The plaintiff was a Sudder Ghatwal in the district of Bankura and was dismissed for misconduct. As to the nature of this particular Ghatwali, Jackson, J. says:

The plaintiff has no title deed whatever, or any documentary evidence of any description to show that he has any title independent of service as Ghatwal to hold the lands in suit; and the very name "Ghatwali" indicates that the tenure is held by virtue of the office of Ghatwal.... There has been no attempt to show that at any time has the Ghatwali land been held by one person by right of inheritance, and the office of Ghatwal by a different person by appointment or otherwise.

In my opinion this case does not support or even decide the proposition contended for by Mr. P.R. Das.

The next case relied upon is the case in Debakar Singh Vs. Radhagobindo Singh and Others, . In this case the Court found that the facts were that the plaintiff was dismissed by reason of his making default in payment of the quit rent that was due from him to the Sadder Ghatwal and the Court observed that:

If in the opinion of the police authorities, it is essential that money should not remain due from the Ghatwals to the Sadder Ghatwal or that, in the interests of the public, Ghatwals should remain free from debt and perform their duties with less likelihood of taking gratification from other parties, it is obviously a matter for the executive authorities to consider.

It appears therefore that this case is merely an authority for the proposition that where the executive authorities find that the Ghatwal had been guilty of misconduct, they have jurisdiction to dismiss him and the observation upon which reliance is placed that the Court cannot re-instate any body as Ghatwal because the Court cannot force upon the executive authority a person to discharge the duties must be read in connexion with the next line that follows which says that he is such a person who,

in the opinion of the executive authorities is not suited or is not fit to perform those duties. In my opinion, the Court cannot re-instate a person in the land who has been properly dismissed from the office.

I respectfully agree with this observation and, as I said before, the question in every case would be whether the person has been properly dismissed from the office on the ground that he is neither suited nor fit to perform those duties.

Attention was next drawn to the case in Hemendra Nath Roy v. Upendra Narain AIR 1916 Cal. 829. The learned Judges of the Calcutta High Court granted a declaration to the plaintiff defining the position of the plaintiff on the death of the previous Ghatwal. That was a suit brought by one Upendra to establish his claims to lands in a certain Ghatwali in the district of Bankura held as Digwari Chakran right against one Hemendra (the man appointed by the Government), the Secretary of State and the zamindar. The learned Chief Justice in his judgment states as follows:

Whether we have here to deal with an office remunerated by the possession of land or land burdened with the service of an office is practically immaterial.... But such materials as there are on the record, in my opinion, supported the conclusion that we have here an office remunerated by the possession of land,

and definitely came to the conclusion that the Digwari position was that of the office remunerated by the enjoyment of land. Upon these facts, the attitude of the Government in that case was entirely free from difficulty because the Commissioner who passed the order had refused to appoint the plaintiff to the office and was guided not only by the conduct or fitness of office of Upendra but proceeded on his view of the rival legal claims of the various applicants and when the plaintiff being dissatisfied with the decision of the Commissioner went to the Board of Revenue they referred him to the Civil Courts. Mookerjee, J. who gave a concurring judgment also examined the situation elaborately and came to a similar conclusion that:

We have here, not a grant of lands burdened with a certain service, but the grant of an office, the performance of whose duties is remunerated by the use of lands. The land and the office went together; but the office was the primary concern, the occupation of the land was subsidiary thereto. I think the inference is also legitimate that we have here a case, not of property held by a man to himself as holder of an office and his successors in that office. The office itself was not hereditary in the sense that the heir of the last holder was entitled as a matter of right to discharge the duties of the office and to remunerate himself from the usufruct of the lands attached thereto. The theory that the office was hereditary in character is inconsistent with incontrovertible facts disclosed in the evidence.... The view that the Digwar was liable to be removed for failure to discharge his duties satisfactorily and that on his removal the Executive Government was free to appoint a qualified stranger as successor, is borne out by the documentary and oral evidence on the record,

and came to the conclusion that the position was that

the disputed lands appertain to the office of Digwar of Ghat Bbarra, that the office itself is not hereditary as a matter of right, that the holder of the office is liable to be removed for failure to discharge his duties to the satisfaction of the Executive Government, that on the removal of a Digwar his successor acquires a valid title to the office only if appointed thereto by the Executive Government....

Mookerjee, J. pointed out at p. 449 that in that case

the Commissioner refused to approve the appointment of the plaintiff as Digwar, not because the Commissioner considered him unsuitable for the office, but because the Commissioner took an erroneous view of the relative rights of the plaintiff and his opponent, the determination of the Commissioner was in essence based upon an erroneous adjudication of a question of title.

In my opinion this case is no authority, for the proposition contended for by Mr. P.R. Das but it rather supports only this proposition that the Civil Courts have no jurisdiction to reinstate a Ghatwal who has been properly dismissed by the executive authority as unfit for the discharge of those duties. Apart from this, the finding of fact; which I have quoted already shows that the case before the Calcutta High Court, was not a case of hereditary and perpetual Ghatwali to which entirely different considerations would apply.

Another case cited by Mr. P.R. Das was the case in Jogendra Nath Singh v. Kali Charan Roy 9 C.W.N. 663 but that case far from, supporting his contention appears to lay down a contrary proposition. In that case the Court found that the particular tenure was not merely heritable but was also permanent and that a tenure of this description could not be determined or resumed by the zamindar or the Government on the ground that the services were no longer required or had been dispensed with and it was further held that in the case of a tenure of this description where during the lifetime of the Ghatwal his son who was appointed as Deputy was dismissed, the dismissal of the son does not mean the dismissal of the father and that after the death of the father the son was entitled to succeed although during the lifetime of the father he had been dismissed while acting as a Deputy to the father.

All these cases which I have just been considering were referred to in a Division Bench ruling of this Court reported in H. Mathewson Vs. Secretary of State, . In considering the claim of Mr. Mathewson that he was improperly dismissed, Jwala Prasad, J. observed:

We are not competent to enter into that question as was held in Debakar Singh Vs. Radhagobindo Singh and Others, Debee Narain Singh v. Sree Kishen Sein (1864) 1 W.R. 321 and Kusum Kumari Lodh and Others Vs. Kutiswar Barai and Others, .

I have already dealt with the very authorities which are the basis of that observation by Jwala Prasad, J., and have shown that these authorities do not support the proposition contended for by Mr. P. E. Das, The facts which were established in the case reported in H. Mathewson Vs. Secretary of State, showed that Mr. Mathewson was rightly dismissed for misconduct in the discharge of his duties as the Ghatwal, he having purchased the Ghatwali on the very terms that he would himself perform the duties and that he would not be evicted from the Ghatwali so long as he performed these duties to the satisfaction of the Government and would lose the Ghatwali on dismissal. But later on towards the end of p. 771 Jwala Prasad, J. proceeds to observe that the question of the impropriety of the dismissal of the Ghatwal can be considered with a view to see if he had been wrongfully deprived of the lands in question, for the recovery of which he had brought this action and added that "if he has been dismissed for misconduct or neglect of duty, he has forfeited the lands in question and cannot get any relief" and proceeded to point out that 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".

In my opinion this case also is no authority for the proposition contended for by Mr. P.R. Das. Upon a review of the authorities cited, I hold that the Civil Courts have power to interfere in certain circumstances indicated by me above. It was also argued by Mr. P.R. Das that the present suit is not maintainable inasmuch as the defendant has got his name recorded in the recent settlement proceedings as the Ghatwal of Kunjora and he relied upon Ex. LL at p. 45 which shows that on 7th March 1931, the Record of Rights was prepared showing in the khewat of this village, Kunjora, that the defendant had been appointed as the Ghatwal.

It was however pointed out to Mr. Das by us that there was nothing in the evidence on the record to show that this document was other than a mere draft Record of Eights because it did not give the date on which it was finally published. Mr. P.R. Das could not give any satisfactory answer. It seems to me that it must be held that the Record of Rights could not have been finally published because the defendant himself stated in para. 24 of the written statement that the settlement operations in this Ghatwali estate were still going on. The suit was instituted before the Settlement Officer of Dumka, Santal Parganas, on 30th March 1931, that is to say, within 23 days of the draft preparation of this khewat and this is well within six months which is the time provided by Section 24 of Regulation 3 of 1872 which applies to Santal Parganas and by which any person interested is allowed to bring forward in the Settlement Courts any objection he may desire to make to any part of such Record of Eights within a period of six months from the date of such publication and the objection so made is to be inquired into and disposed of by a decision in writing under the hand of the officer presiding in that Court.

In this view of the matter the argument of Mr. P.R. Das that under the provision of Section 25 of this Regulation, the Record of Rights must be deemed to be conclusive must be rejected. It was next argued that under the provision of Section 25-A the present suit is barred because the plaintiffs are neither zamindars or proprietors and the present suit cannot be treated as a suit "where only the rights of zamindars and other proprietors as between themselves are concerned".

This identical question has been decided by a Bench of this Court in Sonabati Kumari v. Kirtyanand Singh AIR 1935 Pat. 306 where it was held that a person in the position of the present plaintiffs would be entitled to be called proprietors if not zamindars. Indeed, column 5 of the very khewat, Ex. LL at p. 45, enters the name of this defendant as a proprietor. I therefore overrule this contention of Mr. P.R. Das also. I have given my most anxious consideration to this case and I have, as indicated above, reluctantly arrived at the conclusion that the claim of plaintiff 2 must also be dismissed. It would have been more satisfactory if the Government had given a trial to plaintiff 2 and then removed him from office in case he was found unfit or unable to perform the duties of his office. I would affirm the decree of the Subordinate Judge but under the circumstances direct that each party should bear his own costs of this appeal.

Chatterji, J.

I agree that the appeal should be dismissed but I desire to give in brief my own reasons so far as appellant 2 is concerned. His case is that the tenure being hereditary and permanent, he was by right entitled to be appointed ghatwal on the dismissal of his father, appellant 1. Admittedly the tenure in question is a Birbhum Ghatwali tenure governed by the provisions of Bengal Regulation 29 of 1814. Section 1 of that Regulation shows that the ghatwals are entitled to hold their lands, generation after generation, in perpetuity, subject nevertheless to the payment of a fixed and established rent to the zamindar of Birbhum and to the performance of certain duties for the maintenance of the public peace and support of the police.

In other words, the ghatwal has a right to hold the tenure hereditarily and in perpetuity subject to two conditions, namely (1) the payment of the fixed rent and (2) the performance of certain duties for maintenance of the public peace and support of the police. By Section 3 the rents are made payable to the Collector, the arrangement being that the Collector after deducting the Government revenue on that part of the estate which comprises the ghatwali lands is to pay the balance to the zamindar (vide Section 4). Section 5 prescribes penalty for non-payment of the rent. The section runs as follows:

Should any of the Ghatwals at any time fail to discharge their stipulated rents, it shall be competent for the Governor-General in Council to cause the ghatwali tenure of such defaulter to be sold by public sale in satisfaction of the arrears due from him, in like manner, and under the same rules, as lands held immediately by Government, or to make over the tenure of such defaulter to any person whom the Governor-General in Council may approve, on the condition of making good the arrear due; or

to transfer it by grants assessed with the same revenue, or with an increased or reduced assessment, as to the Government may appear meet; or to dispose of it in such other form and manner as shall be judged by the Governor-General in Council proper.

Should any increase of revenue be obtained from the operation of any arrangements of the nature above described, such increase shall be paid in conformity to the tenor of the preceding article to the zamindar of Birbhum, his heirs and successors.

It gives in clear terms the Government full power to forfeit the tenure of the defaulting ghatwal and to make it over to any person whom it may approve or other, wise to dispose of it in such manner as it may think proper. It is thus evident that notwithstanding the hereditary character of the ghatwali tenure, the Government, in case of breach of the condition to pay rent, is at liberty to forfeit the tenure and to take it away from the family of the defaulting ghatwal. It must be as a matter of policy of the State based on grounds of expediency touching the administration of police duties by the ghatwals that this right of the Government was recognized by legislative enactment.

Let us next consider the position of the ghatwal with regard to the non-performance of the duties for the maintenance of the public peace and support of the police. There is no provision in the Regulation as to what those duties exactly are or as to what would happen in case of breach of the duties. These matters are obviously left to be determined according to established usages. It appears that according to the established usages every ghatwal on his appointment has to execute a muchalka (agreement) in favour of the Government binding himself to perform the duties specified therein and undertaking the liability to be dismissed from the ghatwali in case he violates the terms of the agreement.

In the present case it is admitted in the plaint that plaintiff 1 did execute such customary muchilka when he became a ghatwal. This muchilka is Ex. B and is dated 7th September 1904. It will be enough for the present purpose to quote the following passages from this document:

Further I shall continue to comply with the orders, which will be issued by Government from time to time without any objection; and I shall make no delay in complying with the laws and orders that will be passed on me. The ghatwali mahal is settled with me on the said jama on these aforesaid terms. If I violate the terms I shall be dismissed from the ghatwali and shall pay a fine of Rs. 1000.

For the reasons given by my learned brother, plaintiff 1 was guilty of breach of the terms of the muchalka and he was rightly dismissed for the breach. The question now is, whether on his dismissal, his son as his next heir could as a matter of right claim the ghatwali and whether the Government was bound to recognize him as ghatwal. To me, it seems that when for breach of the conditions on which he holds the tenure, the ghatwal is dismissed from his office by the Government his tenure is forfeited and the Government has a right to make a new grant to any person whom it may consider fit. I am supported in this view by the observation of Viscount Sumner in Ashutosh Deo v. Bansidhar Shroff AIR 1928 P.C. 177 in which their Lordships of the Judicial Committee had to deal with a similar ghatwali tenure governed by the same Regulation 29 of 1814, the precise question for investigation there being whether the Santhal Parganas Rural Police Regulation 4 of 1910 had the effect of affecting the inalienability of such tenures. Viscount Sumner at p. 749 observes:

If the effect is that contended for, the tenure would pass to a purchaser by the sale alone and would in future involve no further obligation on the holder, if so much, than payment of such police salaries as might attach to it. The Government would lose its power of. forfeiting the tenure on failure of the holder to perform the conditions and of making a new grant to some more worthy ghatwal.

Once a tenure is forfeited the right of the Government to resettle it with any new ghatwal whom it may consider fit comes in. Ordinarily the Government should, and the documentary evidence in this case shows it does, consider and respect the hereditary claim of the next heir of the dismissed ghatwal but he cannot force such claim upon the Government. The argument by analogy that the forfeiture amounts to civil death of the dismissed ghatwal does not appear to me to be sound. Take the case of an ordinary tenure, permanent and hereditary, which is held on conditions the breach whereof involves a forfeiture of the tenure. Can it be said that when there is such breach on the part of the holder of the tenure for the time being, the forfeiture has the effect of letting in the next heir to succeed? I think not. This principle of law, in my opinion, is equally applicable or perhaps with greater force in the case of a service-tenure, though impressed with hereditary character. The claim of appellant 2 is based on the provisions of Regulation 29 of 1814 {vide para. 14 of the plaint). Section 1 of that Regulation, as already stated, lays down that the tenure is hereditary and permanent subject to certain conditions. If those conditions are violated, and as a result the tenure is forfeited, it is liable under certain circumstances to lose its hereditary character. I have already shown that in case of the breach of the condition to pay rent the Government has, under the provisions of Section 5, the right to terminate the hereditary character of the tenure if necessary.

If such is the result of a breach of the condition to pay rent, I do not understand why in the case of a breach of the other condition to perform the duties relating to the maintenance of the public peace and support of the police a different result would follow. Of course in construing an old Regulation mixed up with customs and usages the reasoning employed for arriving at a certain result may not be always logical, but in considering the particular question before us we should bear in mind that the ghatwali is a service tenure of a peculiar nature and the Government has to see to the efficient discharge of the police duties appertaining to the office of the ghatwal. No custom or usage has been pleaded, much less established, by which appellant 2 can claim to enforce his right of succession to the ghatwali which has been forfeited in consequence of the dismissal of his father from the office. The case of ordinary succession is quite different because in that case on the death of a ghatwal his next heir by right of inheritance comes in unless he is found unfit for the office.

I therefore consider that appellant 2 cannot claim as a matter of right to be appointed ghatwal in the place of his father. I should mention here that the evidence in this case shows that even on the death of a ghatwal his next successor has to be appointed as ghatwal by the Commissioner. The Muchilka (Ex. B) itself shows that appellant 1 was appointed by the order of the Commissioner. That order was not on the record and to be quite sure of it we sent for it. Prom it we find that the appointment of appellant 1 was sanctioned by the Commissioner of the Bhagalpur Division and the Santhal Paranas on 25th July 1904.

I may also refer to Mr. O''Malley''s District Gazetteer of the Santhal Parganas at p. 220 where the following passages occur:

The power of appointing and dismissing a ghatwal is vested in the Commissioner of the Bhagalpur Division. Ordinarily the next heir of a deceased ghatwal is appointed to succeed him, provided he is fit to perform the duties attendant on the office.

The position that the ghatwal has to be appointed the appointing authority being obviously the Government is recognized in the plaint itself. Para. 14 of the plaint states that "the plaintiff 2nd party was by right entitled to be appointed ghatwal of Kunjora in place of plaintiff 1st party." Again in para. 19, Clause 4 of the plaint plaintiffs pray for a declaration that "the plaintiff 2nd party as his descendant was in law entitled to and eligible for the appointment of ghatwal in his place." This disposes of the argument advanced by Sir Sultan Ahmad on behalf of the appellant to the effect that no appointment to the office of ghatwal is necessary and the next heir automatically comes in to fill up the vacancy.

This argument was based on the following passage in the judgment of their Lordships of the Judicial Committee in Satya Narain Singh v. Satya Niranjan Chakravarti AIR 1924 P.C. 5:

Neither by the terms of the grant nor by the general law applying to such ghatwali tenures is an actual appointment of the next heir to be ghatwal in the room of his predecessor requisite.

In that case the tenure under consideration was of a different kind not governed by the Regulation 29 of 1814 and the facts also were quite different.

The case of appellant 2 however may be disposed of on another ground and on that ground alone. It is conceded that the question of his fitness for the office of ghatwal is to be decided by the Government. In this case the Commissioner did consider the question of his fitness and found him undesirable, and the matter was carried to the Governor-in-Council. It cannot be said that the executive authorities did not of all consider his claim or that they acted arbitrarily. The Civil Court is not therefore competent to question the propriety of their decision. Accordingly appellant 2 is not entitled to any relief. There is another difficulty in his way. Even assuming that we could hold that he should have been. appointed to the office of ghatwal and that the appointment of respondent 1 was bad, we cannot do anything beyond giving a mere declaration to that effect. We cannot force the executive authorities to remove the one and appoint the other instead.

A mere declaration therefore would be infructuous if the executive authorities, for reasons of their own, ultimately choose, not to act upon that declaration. Such declaration the Court should not grant. As regards possession of the tenure, it cannot be given apart from the office because the one goes with the other.