Kamakhya Narain Singh vs Jawahir Khan and Others

Dawson Miller, C.J.—The plaintiff, a minor, is the proprietor of the Ramgarh Raj suing through the manager of his estate which is under the management of the Courts of Wards. He instituted the suit out of which this appeal arises claiming a declaration that the tenure ordinarily called Jagodih Lat consisting at present of 41 villages is an ordinary jagir within his zamindari and is resumable on failure of the direct male line of the grantee and that the entries in the Record of Rights, finally published in 1914, describing it as a shamilat or shikmi taluk and non-resumable are incorrect. The defendants are the present holders of the tenure and others claiming through them. The villages comprised in Jagodih Lat from part of Pargana Chai, and this, together with many other Parganas, was settled with the plaintiff''s ancestor, Raja Maninath Singh of Ramgarh, by the Permanent Settlement, and it can no longer be disputed that Jagodih is comprised within the plaintiff''s zamindari.

It is the plaintiff''s case that under the Moghul Emperors and for some centuries before the British acquired the Diwani of Bengal, Bihar and Orissa in 1765, the Rajas of Ramgarh were the paramount chiefs of a large tract of hilly country north of Hazaribagh including Ramgarh, Chai and Champa and many other parganas a number of which were held under them by petty chiefs under service tenures, or jagirs, granted originally for life but which subsequently, by custom became descendible in the direct male line of the grantee, being defeasible on failure of his lineal male descendants and that Jagodih was a tenure of this nature. He further relies upon the Permanent Settlement made by the East India Company with his ancestor Raja Maninath Singh, and the effect of the Settlement Regulations. In addition he contends that the question now agitated was decided in a suit between the ancestors of the parties in 1793 and cannot again be re-opened. The defendants, on the other hand, contend that the Jagodih Chiefs were independent talukdars paying not rent to the Ramgarh Raja as their overlord, but revenue through him to the Moghul Emperor, and that had they been so minded, they could have obtained a Settlement direct from the East India Company under the provisions of the Settlement Regulations and in particular Regulation VIII of 1793, but that, notwithstanding this omission, and the fact that Jagodih was comprised in the Settlement with the plaintiff''s ancestor as part of the Ramgarh Raj, they ought not to be treated as lease-holders holding under the Raja of Ramgarh, but as talukdars still paying their revenue through him, and that their estate is not resumable by the Ramgarh Raja in any event. They further contend that the villages, in question were their ancestral nankar villages, that is revenue free, in which they hold absolute proprietary rights.

During the recent Survey and Settlement operations in the Hazaribagh District, the Settlement Officer directed the Jagodih tenure to be recorded in the khewats as a shamilat taluk held under the Ramgarh Raj and as non-resumable, and it was so recorded in the Record of Rights finally published in 1914. The plaintiff accordingly instituted the present suit in 1920, before the Additional Subordinate Judge of Hazaribagh claiming the declaration already mentioned. The learned Judge dismissed the suit and the plaintiff has preferred this appeal.

Two main questions arise for consideration. The first concerns the relationship existing between the Ramgarh Raja and the holder of Jagodih before the Permanent Settlement; and the second is what effect, if any, the Permanent Settlement had upon the relationship previously existing between the parties. The plaintiff''s case is that for many years before the Permanent Settlement, the Ramgarh Rajas were in possession of Jagodih and the other parganas of Chai and Champa, but from time to time granted jagirs of these parganas, or of certain villages therein, to the Chai Chiefs whom they had reduced to subjection, and certain documents purporting to show such grants have been tendered in evidence. These documents are challenged by the defendants either as spurious or inadmissible.

It is hardly surprising that after a lapse of about a century and a half direct and conclusive documentary evidence of the grants under which the defendants'' ancestors held should be difficult to obtain, and it has been necessary to investigate a number of official reports and records of contemporary transactions in order to ascertain; the relationship existing between the Ramgarh Rajas and those who held interests under them in their zamindari. (The judgment then set out the history of Ramgarh, Jagodih and other Chai Parganas from 1585 and continued). From 1764 onwards the Settlement of Jagodih and the other Chai Parganas was always made with the Rajas of Ramgarh although the Chai Chiefs made efforts to have their independence recognized. The first document produced in support of this part of the case is Ex. 23, a Settlement of Jagodih and other Parganas with Raja Mukund Singh for the year 1878 F. (1771 A.D.) at a jama of Rs. 9,001 after deducting nankar inam. The next (Ex. 24) is a Settlement with Raja Mukund Singh for three, years, 1179 to 1181 F. (1772-1774 A.D.) at a jama of Rs. 21,000. The next Settlement was for five years 1181 to 1185 F. with Raja Tej Singh at a consolidated jama of Rs. 33,000; and finally we have the Decennial Settlements with Raja Maninath for the years 1179 to 1206 F. at an annual jama of Rs. 40,001 reduced by deduction of sayer and expenses to a net annual jama of Rupees 28,100. This was further reduced by an order of the Board of Revenue in 1792 by certain allowances for excise, markets etc., to Rs. 26,587. This Settlement includes, inter alia, Pargana Chai which embraces Jagodih, Rampur, Paroria, Danarh and Itkhori. The settlement which was afterwards made permanent provides: "You shall not without the order of the Hazur resume Devotar, Braimmhotar Mahotar Aimas, Madatmash of pirs and faqirs, orchard land, lakhraj, tanks and istamrari villages without obtaining order from the Hazur, nor are you to make fresh Settlement of the same unless you get a sanad from the Hazur to do so. You shall raise in time usual earthwork within your boundary limits. In case of negligence on your part you shall be liable for the loss accruing therefrom; you shall guard and watch over the highways within your boundaries carefully so as to enable travellers and passers by to journey over them peacefully and safely. You will not harbour thieves and robbers within your jurisdiction. If peradventure anybody''s property be stolen or robbed, you will conformably with criminal regulations search for and produce the thieves and robbers with the property.

From this it will be seen that the grantee became responsible to Government for keeping the peace within the zamindari, a task previously carried out with the assistance of the jagirdars holding under the Raj whose sanads generally provide that they should maintain a certain number of armed men.

It appears from the documentary evidence in the case and from Mr. Sifton''s Settlement Report (pages 86 and 87) that the question of resuming the jagirs was raised at the time of the Decennial Settlement. Mr. Leslie, the Collector, complained to the Board that the value of the Ramgarh Estate was greatly reduced by the alienation of most of the lands in jagir and recommended resumption on the death of the existing incumbent on the ground that the services for which the jagirs were assigned were no longer required. At the same time he pointed out that the custom of the devolution of the jagirs from father to son had become so established that he feared any sudden innovation would be attended with bad consequences. I have already referred to this letter of July 1788 in which he included Lal Khan of Jagodih as one of the jagirdars of Ramgarh, In the later correspondence in 1792, after referring to the kamil jama, Mr. Leslie states that it had been thought expedient to require the jagirdars to pay a certain annual revenue in lieu of maintaining the people specified in their sanad, a measure which caused considerable discontent at first and the proportion of the kamil jama which they should pay was not finally determined until the time of Mr. Dallas who fixed it at 6 annas in the rupee on the kamil jama.

This measure however had not proved satisfactory as this rate of payment although easy in some cases was intolerable in others and the zamindar had been obliged to grant reductions in his Mufassil Settlement to several people whose revenue was excessive. He further states that the jagirdars had in many cases fallen into arrears, as their lands had not been cultivated, and they had taken up the position that they were independent of the zamindar and could not be dispossessed. He makes certain suggestions for alleviating the situation and in the event of the Board not approving his proposals, he asks for a determination on the point whether the zamindar has the right to resume the jagir in case the jagirdars falls into arrears and secondly, whether on the death of the jagirdars his heirs have the right to get possession on the same terms, or whether the zamindar may resume the land and increase the rent or levy a fine for renewal. The Board replied that they conceived it optional with the zamindar to resume such of these tenures as they might think proper either upon the death of the present incumbent or upon their being unable to discharge the revenue assessed on their lands and, after resumption fix such assessment as they might think proper under the general regulations. From that time onwards the jagirs in Ramgarh have come to be regarded as resumable, but by the custom in the family established and supported by legal decision the zamindar cannot resume except upon failure of the lineal male line of the grantee.

I may now turn to the documents relied on by the plaintiff as showing that the Jagodih Rajas held their lands under a jagir tenure from Ramgarh. The plaintiff'' case is that the Ramgarh Rajas were the paramount chiefs of that part of the country for centuries before the advent of British rule. He further contends that although Ramgarh may have lost its dominion over Jagodih from time to time during the disturbed period in the first half of the eighteenth century, nevertheless from 1763 onwards they were always masters of the country, and in fact from about that time they retained possession, and by way of maintenance, and in return for certain services, the nature of which is not very clear but probably included the maintenance of certain armed men, they made grants of a few villages in their Parganas to the Chai Chiefs including Jagodih. (The judgment then discussed the several documents relevant to the case and while dealing with the suit of 1793 continued). It was contended on behalf of the respondents that the suit of 1793 did not include a claim for the proprietary interest in the villages of which the plaintiffs in that suit were already in possession, but I think it must be taken on a perusal of the record of the suit that the Jagodih. Rajas were claiming proprietary rights over the whole of their Parganas of which according to their case they had been deprived. They state in their plaint: "Raja, Maninath Singh of Ramgarh is in possession of the milkiat and malguzari Rs. 6,501 besides the zirats which is our own jama of five mahals." They were claiming apparently the whole of that which was lost which was their milkiat right; and had they proved that they were entitled us proprietors even to the villages which they still held, and not as jagirdars I think that they would have been entitled to a declaration as to that part of the property. Evidence was called on both sides as to the terms on which they held these villages. It was their case that the rent was collected during the time of Mr. Dallas under same sort of parwana granted by him and that they were paying as proprietors but a body of evidence was called on behalf of the Raja of Ramgarh including that of Daryao Singh, the sazawal sent by Mr. Dallas to collect the rent, to show that he collected the rent from them as jagirdars in the same way as he collected it from the other jagirdars and credited it to the revenue payable by Ramgarh. There seems to have been no object in calling this evidence unless it were to prove that the Jagodih Rajas were holding those villages as jagirdars and not as proprietors. The Court seems to have accepted the evidence for the defendant on this question and dismissed the whole claim on the ground that the plaintiffs had been out of possession of the proprietary right from before 1765. I consider therefore that the present respondents ate precluded by that decision from re opening the question of their proprietary interest.

I hold further that on the evidence before us it is amply proved that the Raja of Jagodih held the villages at that time in his possession under a baiswan or jagir grant from Ramgarh. These villages then numbering 21, reduced to 15 after the rent suit of 1786, are the nucleus of the present 41 villages of the tenure. The bond of 17 84 the genuineness of which is corroborated by the compromise ID the rent suit of 1786 admits that they were jagir villages and the amalnama issued by Raja Maninath Singh in 1784 (Ex. 14) is further corroboration of the jagir grant. The Court in the suit in 1793 seems to have taken the same view. Moreover it is significant that as late as 1848 Raja Shibraj Khan the descendant of Lal Khan and ancestor of the present respondents, in his petition to Government giving the history of taluka Jagodih states:

The said Raja Makund Singh through his high handiness brought the zamindari in his possession and occupation but left out several villages out of the aforesaid mahal for the maintenance of the dependents of the ancestors of your petitioner the Raja.

Maintenance grants in Ramgarh and Chota Nagpur like jagirs are resumable on failure of the lineal male descendants of the grantee. In fact it would appeal that at all events up to recent times no grants were ever made in Ramgarh of a larger interest than a tenure descendible in the male line. Woodroffe, J., in Ram Narain Singh v. Chota Nagpur Banking Association AIR 1917 Cal 748, when discussing the nature of mokarrari istamrari leases which were first granted in Ramgarh in about the year 1864 states:

Before that date there had been no absolute transfers in Ramgarh the nearest approach to such transfers being jagirs descendible in the male line

If my decision on the above points is accepted it is unnecessary to consider the effect if any of the Settlement Regulations upon the status of the Jagodih Rajas, but in case the present suit may go to a higher tribunal I propose to state my conclusions upon this question.

The entry in the Record of Rights to the effect that the tenure is not resumable by the Raja of Ramgarh in any event can only be justified on the assumption that the tenure holders have an absolute proprietary interest in the land and are not lease holders. It is the respondents'' case that at the time of the Permanent Settlement they were in the position of independent talukdars and although they have lost their rights with regard to the other villages in the taluk they at all events retain the right of independent talukdars with regard to the villages which they still possessed at the time of the Settlement. This argument is based upon the assumption that the suit of 1793 did not include those villages. Under the provisions of Regulation VIII of 1793 as already stated it is provided by 01. (4) that the Settlement, under certain restrictions and exceptions therein specified shall be concluded with the actual proprietors of the soil of whatever denomination who the zamindars, talukdars or chaudharies. The talukdars to be considered the actual proprietors to the land composing their taluks are set out in Section 5 and are to be regarded as independent talukdars entitled to a separate settlement with Government. The distinguishing feature of this class is, as I read the section, that they have either acquired their land from the zamindar or other actual proprietor by sale or gift making over to them the proprietary rights, or have received from Government grants of a similar nature directing them to pay their revenue through some other zamindar and not direct to Government. The respondents rely upon the third clause of Section 5 and say that they are talukdars whose taluks were formed before the zamindar or other actual proprietor of land to whom they now pay their revenue or his ancestors succeeded to the zatnindari and they further point to Section 6 which provides that proprietors of taluks, who now pay the public revenue assessed upon their lands through a zamindar or other actual proprietor of land, and whose title-deeds contains a clause stipulating that their revenue is to be paid through him, shall continue to pay their revenue through such zamindar or other actual proprietor of land as heretofore. Assuming that for certain short periods under the Mughal Emperors and before the acquisition of the Diwani they had settlement of their taluks and were paying revenue direct to the treasury or through some renter such as Kamdar Khan or some other zamindar they lost all rights in their zamindari before 1765 when Raja Makund Singh finally drove them out; and the Settlement made by the British Government took notice only of those rights which still subsisted on the 12th August 1765. From that date onwards they cannot be said to come under the provisions of 01. (6) as they can produce no title-deeds containing a clause stipulating that their revenue is to be paid through Ramgarh or any other proprietor after that date. Had they wished to assert such a right after the property was settled with Ramgarh, they should have brought a suit to establish such right under the provisions of 01. (12) of Regulation VIII. I am assuming, of course, that the villages comprised in their tenures were not included in the suit of 1793. Questions having arisen as to the time within which such a suit could be brought it was provided by Regulation I of 1801, Section 14, (after reciting the necessity of fixing a period for the institution of such suits) as followers:

It is hereby required all that talukdars who as the proprietors of the lands composing their taluks may consider themselves entitled u/s 5, Regulation VIII, 1793 or any other part of that regulation to be separated from the zamindars to which their taluks are attached shall prefer a written application to the Collector of the zillah in which their taluks may be situated for the separation thereof within one year from the date this Regulation under penalty of forfeiting all title to separation under Regulation VIII, 1793, if they shall omit to apply as directed within the prescribed period at the expiration of which the portion of the section above mentioned shall be considered extinct with regard to all taluks for which no claim to separation may have been then preferred; and such taluks shall thereafter be considered as dependent taluks not entitled to be separated from the zamindaris to which they may be attached though in other respects the rights of the talukdars are not meant to be in any degree affected by the Regulation.

The effect of this section appears to me to be that the holders of the Jagodih tenure are reduced to the status of dependent talukdars holding under the Ramgarh Raj and are to be considered as lease-holders only within the meaning of Section 7 of Regulation VIII of 1793. It is true that their rights in other respects are not affected, but they cannot be both dependent and independent. If dependent they are mere lease holders under the Ramgarh Raja and cannot have a greater interest than that of other lease holders holding under that Raj at the time of the Permanent Settlement. The highest form of tenure known in Ramgarh at that time was a jagir resumable on the death of the male heirs of the body of the grantee. The grantee in this case was Lal Khan.

With respect to the Settlement Officer Mr. Sifton who decided this question, for the purposes of the Record of Rights I think his conclusion was based upon very inadequate materials. He says:

After reading the evidence produced I am satisfied that these tenures are not of the same origin as the jagirs founded by the Padma Raja and his predecessors. They have hitherto been regarded and treated as shikmi or shamilat taluks and they probably existed as independent properties before the Ramgarh Raj was established and I can find nothing in their recent history ''to change the status of the holders of these taluks. As they were not originated by the Ramgarh Raj I find them to be not resumable by the zamindar. They will be noted in the khewat as not liable to resumption.

In his Settlement Report, at page 26, he says:

Jagodih, Rampur, Paroria, Itkhori and Barsote we shamilat-taluks, the owners of which have always claimed that they are not tenure-holders of the Ramgarh Raj and that a separate revenue ought to have been assessed on their estates. I have not been able to find-out any definite history of the taluks, but the fact of their appearing with separately assessed revenue at the time when even the Chota Nagpur Raj was paying its revenue through the Ramgarh Raj suggests the possibility of these shikmi talukdars having been also in reality independent as they claim.

If by this he means that they were separately assessed by Government as independent taluks after 1765 there is no evidence to support him. If he means that they were independent at some period or other before that date, then this ignores the fact that in 1765, when the British took over the administration of the country, their independence had vanished and the Ramgarh Raj was by conquest the proprietor. Moreover, it would appear that Mr. Sifton had not the advantage we now possess of having before him the old documents showing baiswan grants or the other documentary evidence adduced in this suit which is confirmatory of those grants.

A further point was raised on behalf of the respondents that the present suit was barred by the provisions of Section 258 of the Chota Nagpur Tenancy Act which applies to land settlements in Ramgarh. The section provides that, save as expressly provided in the Act, no suit shall be entertained in any Court to vary, modify or set aside, either directly, or in directly any order or decree of any Deputy Commissioner or Revenue Officer in any suit or proceedings under (inter alia) Section 89 except on the ground of fraud or want of jurisdiction. It is contended that the order passed by the Revenue Officer, which resulted in the final publication of the Record of Rights, was an order passed u/s 89 and cannot now be questioned. The latter section gives the Revenue Officer power on application, or of his own motion, within 12 months from the making of any order or decision under Sections 83, 85 or 86 to revise the same, whether made by himself or by any other Revenue Officer. It is contended that the order passed by Mr. Sifton was an order revising the previous order made by his subordinate u/s 83 which prescribes the procedure for considering objections to the entries made in the draft record. An objection to the entries in the draft record with regard to Jagodih was heard and decided in favour of the present respondents, and Mr. Sifton whose intention appears to have been to reserve this question for himself afterwards decided it in the same manner. When applied to subsequently, he stated that the order made by him was not and did not purport to be taken u/s 89, and added that his order would not be any bar to any subsequent civil suit to determine the status of the tenure. However that may be, it seems clear that any order passed u/s 83 relates to the draft record only. The draft has now served its purpose and final publication has taken place, and the present suit is not one seeking in any way to interfere with the draft record which is merely a preliminary publication. With regard to the Record of Rights finally published, Section 84, Clause (3) provides:

every entry in a Record of Rights so punished shall be evidence of the matter referred to in any such entry, and shall be presumed to be correct until it is proved by evidence to be incorrect.

This provision is similar to that in Section 103-B (3) of the Bengal Tenancy Act which creates a statutory presumption in favour of the correctness of the finally published record but implies the right to bring a suit averring the contrary. In my opinion the present suit is not barred by Section 258 of the Chota Nagpur Tenancy Act.

What the exact significance of the terms shamilat and shikmi may be it is not necessary to enquire--authorities differ as to their meaning but, in my opinion, the appellant is entitled to a declaration that Jagodih Lat consisting of the villages named in Schedule E of the plaint is a jagir tenure held under the Ramgarh Estate and is resumable on failure of the lineal male descendants of Raja Lal Khan, and that it is not a shamilat or shikmi tenure in the sense in which those terms are used by the Revenue Officer in the Record of Rights published in 1914.

A point was raised by Mr. Bannerji who appeared on behalf of the Respondent No. 24, Maharaj Bahadur Sidgh, who has acquired some interest by purchase in Mouza Petula one of the villages named in Schedule E of the plaint as appertaining to Jagodih Lat. He contends that Mouza Petula appertains to taluk Rampur and not to Jagodih and that he has been unnecessarily made a party to the suit. There was no evidence one way or the other to show whether the village claimed by this respondent is the same Petula as that mentioned in the documents in this case or whether it has subsequently been transferred to Rampur. This question cannot be determined in the present suit and must be left open.

The decree of the Additional Subordinate Judge is set aside with costs against the defendants who appeared at the trial, and in lieu thereof a decree will be passed granting the declaration above mentioned. The appeal is allowed with costs against the respondents who have appeared other than the Respondent No. 24 who will bear his own costs.

Mullick, J.

(After setting out fasts as stated in the judgment of the Chief Justice his lordship continued.) In para. 21 of his plaint the plaintiff states that the cause of action arose in 1914 when the Record of Rights was finally published, and in para. 22 he prays for the following reliefs:

(1) It may be declared that the tenure ordinarily called ''Jagodih Lat'' consisting of villages in Schedule ''E'' hereto annexed is not ''shamilat'' for ''shikmi'' taluk of the Ramgarh Estate, nor is it "non-resumable" as recorded in the khewats.

(2) It may be further declared that it is an ordinary jagir under the Raj and is returnable by it on failure of the direct male line of the grantee and under certain other circumstances, and the entries in the khewats are incorrect.

A joint written statement was filed by Defendant No. 3 Raj Debandra Chandra Ghose Bahadur, and by No. 5 Lokendra Nath Mukherji, No. 6 Odhindra Nath Mukherji, No. 7 Harindra Nath Mukherji, No. 8 Digendra Nath Mukherji and No. 9 Parendra Nath Mukherji jointly. They contended that taluk Jagodih was a shikmi taluk at the time of Decennial Settlement paying revenue through the Maharaja of Ramgarh, that it was not, and never had been, a tenure appertaining to the Ramgarh Estate and that the Settlement Entry was correct.

Defendants Nos. 11 and 13 Jhagru Sahu and Bhagwan Das took the same grounds as the above defendants but further pleaded that the Mouzas Debo and Petula were originally included in taluk Jagodih and that by arrangement with the proprietor of taluk Rampur they were exchanged for mouzas Pado, Ingania and Phuledaria of that taluk. They also claimed that they had purchased proprietary rights in villages Padaria Kakraula and Machola and have purchased the jagir, khorposh and khairat rights in several villages in the Jagodih Estate and also a mokarrari interest in Mouza Bhagar

Defendant No. 24 Maharaj Bahadur Singh claimed to have purchased Mouza, Petula and other mouzas in execution of a decree obtained by Damri Sowdagar against Kuar Deo Narain Sahi. He contended that this mouza was in taluk Rampur and that ha had been unnecessarily impleaded in the present suit.

Defendant No. 22 Ramkumar Lal Bhagat stated that in 1878 his brother purchased Mouza Dabo in execution of a decree obtained against Kuar Dao Narain Sahi, and that the mouza was included in Mouza Rampur and that he had been unnecessarily made a party in the suit.

Defendant No. 3 having died during the pendency of the suit his son, the Defendant No. 3(a) now represents his interest. It appears that by purchase he has acquired the interest of some of the Mukherji defendants. This defendant and Defendant No. 24 are the only contesting defendants appearing in the present appeal;

The following facts are either admitted or established beyond doubt:

(1) That the 41 mouzas in suit are situated upon the site of Pargana Chai, Champa, and Barsote as existing at the time of the Decennial Settlement.

(2) That the site was settled at the time of the Decennial Settlement as part of the zamindari of Ramgarh.

(3) That they were recorded in 1914 by the Settlement Officer as laying within that zamindari.

(4) That the zemindari bears No. 28 on the revenue roll of the District of Hazaribagh which was constituted in or about 1831.

(5) That the defendants do not claim that the lands were ever revenue free. On the contrary their case is that they were assessed to revenue which was paid for convenience through the Maharaja of Ramgarh.

Now as it was admitted before the Settlement Officer that the defendants were holding land within the ambit of the zemindari of the plaintiff and that he was paying revenue for the same, the onus of showing the nature of their title was upon the defendants and upon a failure to show that they had had a tenancy therein, the plaintiff was entitled to resume. But the Settlement Officer having held that the defendants were owners of a non-resumable tenure the onus is shifted upon the plaintiff, and the question is whether he has given sufficient evidence to rebut the presumption created by the Record of Rights. It is necessary to bear this in mind in examining the evidence adduced by the plaintiff.

On the 11th September 1792 Raja Shiva Nath Sahi of Rampur, Raja Bed Khan of Jagodih and Raja Bahadur Sahi of Itkhori in Pargana Chai, Balaghat, laid a suit before the Diwani Adalat at Chata in Zilla Ramgarh against Raja Maninath Singh, zamindar or Zilla Ramgarh, valued at Rs. 6,501 alleging that he had misappropriated the income of their villages in Pargana Chai. The prayer was made in the following words:

The usual practice as regards one-forth of our villages has been contravened, we are, however, ready to pay the rent. Raja Maninath Singh of Ramgarh is in possession of the milkiat and Malguzari Rs. 6,501 besides the zairats, which is our old jama of 5 mahals. It is therefore prayed that the said person may be summoned and justice done so that our milkiat and malguzari right may be restored to us.

The plea of the defendants was that the plaintiffs were jagirdars and that the jagirdars have been paying rent year by year.

The number of mouzas in suit was 40 1/2 and the valuation represented one years rental.

It was decided by Mr. Hunter, the District Judge in a judgment delivered on the 17th December 1793 that inasmuch as the cause of action had arisen previous to the 19th August 1765 the suit was barred under the provisions of the Code of 1793, and also that inasmuch as the cause of action had accrued 12 years prior to the institution of the suit it was also barred under the same Regulations.

There was an appeal to the Provincial Court of Appeal at Azimabad (Patna) which was, dismissed on the 29th August 1794. There was then a second appeal by the plaintiffs to the Sadar Diwani Adalat which also was dismissed on the 18th November 1795. The material portion of the judgment of the Court runs as follows:

The appellants admit that they were dispossessed of the zamindari claimed by them previously to the Company''s accession to the Diwani, and that it is established in evidence of the witnesses that they have never been restored.; to the possession of it since that period, that., it does not appear that they subsequently preferred any claims to the property in any Court of competent jurisdiction within the period limited by the Regulations nor have appellants-assigned any satisfactory reasons for having ., neglected to prefer their claims. The Court, therefore considering the admission of appellants, claims precluded in the first instance by Section 14 of the Regulation of 1798 which is extended to the Sadar Diwani Adalat by Section 7 of Regulation 8 of 1793 they resolve and decree that the decree passed in this case on the 29th August 1794 by the Provincial Court of appeal for the Division of Patna affirmed and that the appeal be accordingly dismissed.

In this suit a large number of the documents were filed by both parties and witnesses were also examined. The contents of the documents were embodied in the judgment of the Court in full and are, therefore, admissible in evidence without the production of the originals. (His Lordship here examined the several documents filed in this suit.) Judgment was given by the trial Court on the 17th December 1793, by the Provincial Court, of appeal on the 29th August 1794 and by the Sadar Diwani Adalat on 8th November 1795. It appears that in 1800 a further attempt was made by Raja Petambar Sahi, Rampur Balaghat, for recovery of proprietary right to 4 mahals within the Pargana Chai, That suit was dismissed by Lieut. Col. Freyer on the 18th June 1800 who found in his.'' judgment that as Mr. Hunter had dismissed the plaintiff''s claim to 5 of the mahals in the earlier suit on the ground that the plaintiff had been out of possession since 1764, this suit also was liable to dismissal on the same ground.

For the next 40 years we do not hear anything more about the Chiefs of the Pargana Chai, but on the 22nd November 1839 Mr. Ouselay, the Agent to the Governor General, wrote to Lieut. Thomas Simpson, the Personal Assistant to the Governor-General''s Agent, asking him to submit a statement of estates, jagirs and their malguzars and he enclosed in this letter a form Ex. 11(a) to be filled up. In reply a mulki form was filed by Bad Khan on the 17th August 1812 containing a statement of "goshwara villages" in his possession appertaining to mahal Jagodih, the "remarks" column of which contains a history of the Jagodih Chiefs. It is there stated that only 21 mauzas were left as nankar to Ben Khan, ancestor of Raja Lal Khan and 39-1/2 mauzas to Raja Shib Nath Sahi, grandfather of Raja Gauhar Sahai, after Makund Singh had treacherously captured their country that after Mr. Camab invaded Ramgarh, Lal Khan and Shib Nath Singh helped to win over Tej Singh to Mr. Camac''s side and Tej Singh was recognised as the proprietor of Ramgarh and that Tej Singh acted perfidiously in not causing Lal Khan''s nankar villages to be separated from Ramgarh; that after the death of Tej Singh Mr. Camac''s intention to recognise the Jagodih Chief''s right to separation was not carried out owing to the opposition of Raja Preshnath Singh. Bed Khan further asserted that no rent was realised for his nankar villages from the time of Nawab Kasim Ali but that Maharaja Maninath Singh upon his accession claimed a one-fourth share and as he threatened a suit an ekrarnama was executed by him on the 17th November 1795 under which he accepted 6 mouzas of Jagodih as security for rent of the nankar villages leaving the remaining 15 mouzas in the possession of Bed Khan. On the 27th August 1842 Sidhnath Singh, the son of Maninath Singh, filed an objection against Bet Khan''s mulki form asserting that Bed Khan was his jagirdar and had no proprietary interest in mouza Jagodih. He also objected that he could not file his own form till Bed Khan had filed a revised form. The order of the Collector upon this objection was that the Maharaj of Ramgarh was at liberty to state in his mulki form the right which he considered the Chief of Jagodih and Rampur to possess and to make such entries in his own form as he thought proper.

On the 21st January 1848 Raja Sheoraj Khan filed a statement in the office of the Agent to the Governor-General in answer to a request for information as the particulars of the title under which he held and stated thai he was holding taluk Jagodih Pargana Chai as zamindar and proprietor by virtue of a maintenance grant given by Raja Makund Singh and that he was holding 15 of the 21 villages covered by the grant in accordance with the terms of an ekrarnama executed by the Raja Maninath Singh.

In 1859 a Survey was undertaken of the Ramgarh District and in consequence of an order made by the Superintendent of Survey the proprietor Maharaja of Ramgarh filed a statement containing certain particulars of the villages held by him. In this statement he declares that 16 mouzas in taluk Jagodih were held as jagirs for good will and service by Raja Sheoraj Khan and Raja Bed Khan.

Seventeen years later the local authorities did not accept this view and on the 3rd April 1876 a report was submitted by Mr. Robinson, the Commissioner of the Chota Nagpur Division, to, the Assistant Secretary to the Government of Bengal on the land tenures of Hazaribagh in which the following account appears:

Shamilat or shikmi taluka. In para. 5 I have mentioned that Pargana Chai was composed of five petty Rajas. These Rajas were semi independent only paying tribute to Raja Lal Khan and when merged into Ramgarh continuing to pay tribute to the Ramgarh Raja. When the country was taken by the English and its Settlement was being made these Rajas endeavored to get Settlement made with thorn direct but their efforts failed and though they were maintained each in his Raj they were directed to pay their tribute which was then covered into a fixed rental to the Raja of Ramgarh. The Rajas of Rampur, Jagodih, Paroria and Itkhori accepted these terms and have been made shikmi talukdars, The Raja Pittij, who was resident of Gaya, refused to agree and made over his taluk to the Raja of Kandi, into whose estate this taluk has merged and the title has been lost. Similarly the Raja of Parsote succeeded in saving his estate from being merged into that of Ramgarh and the estate was made shamilat taluk as also was Pargana Kodarma but the circumstances relating to this last and its severance from the Ramgarh Estate, etc., are related in a separate Chapter. There is a legend that there were two more such shikmi taluks, viz., Tiliyaa and Gola but they have long been extinct and have merged into the Ramgarh Estate.

It is contended by the appellant that this report was the basis of the statement made by Mr. Hunter (afterwards Sir William Hunter) in his Statistical Account of Hazaribagh and Mr. Lister in his Gazetteer for the Hazaribagh District and Mr. Sifton in his Settlement Report of the District regarding the status of the Chai Chiefs and that Mr. Robinson was completely in error in regarding the Chief of Jagodih as a proprietor, his proper status being that of the tenure-holder governed by the ordinary rule as to resumption applicable to jagirs in the Ramgarh Estate.

In addition to these documents there is a set of awarzas prepared in the office of the Raja of Ramgarh ranging from 1774 to 1900 (Ex. 15 series to Ex. 21). The earliest Ex. 15(r) which is dated 1782 shows that Raja Lal Khan held a jagirdari tenure of 21 mouzahs. The income from each mouza purports to be shown against it the total being Rupees 2,480. The rok hakmi or the landlord''s demand is shown at 6-annas in the rupee, that is, Rs. 930, and a collection of Rs. 517 is shown as having been made through Daryao Singh. This document is obviously intended to relate to the period when Mr. Dallas gave orders that the jagirdars should pay 6 annas in the rupee on their kamil jama. A similar document of 1785 shows the landlord''s rent at Rs. 649-4-0 and obviously relates to the period after the jagirdars had executed the kabuliyat or bond of 1784 by the pen of Sumer Singh on the 7th Kartik Sudi Sambat 1841. In the awarza (Ex. (15)(t) for the year 1786 the rent is calculated at 4 annas in the rupee and is shown as Rs. 656-8-0. It relates to the period after the compromise when six of the mouzas were assigned to the landlord as security for rent. The landlord''s rent after making allowance for the depreciation in the currency, is entered as Rs. 640 and accords with the figure shown in the compromise petition filed by Maninath Singh in the Collector''s Court printed at p. 75 of the paper-book. Owing to exchange of villages the gross income of 21 villages is shown as Rs. 2,602 in 1786, but after the compromise the income of the 15 villages remaining in the jagirdar''s possession is shown in the awarza of 1788 (Ex 15(g) as Rs. 1,982 and it remains at this figure till 1863. In the awarza for 1774 (Ex. 15(a) the income is shown as Rs. 1,899 and so also in 1776, 1777 and 1778. In the awarzas for 1774, 1776 and 1777 five villages of Pargana Champa appear, but these go out in the awarza for 1780 which relates to Dallas'' time and the number of villages increases from 16 to 21, and the total income to Rs. 2,622.

The learned Subordinate Judge has declined to place any reliance upon these papers on the ground that they are ex parte and prepared in the zamindar''s sherista, and, that the defendants cannot be bound by them. That is perfectly true. It is also true that many of the entries in these documents are not now intelligible. Nevertheless so far as they go, I think they are good corroborative evidence of the title set up by the plaintiff. They show that since 1774 the plaintiff has always asserted that the Chief of Jagodih was his jagirdar. Papers which are nearly 150 years old ought not to be regarded in a hypercritical spirit and it is our duty, unless there is clear evidence of forgery, to see whether they cannot be reconciled with the other old documents in the case. In my opinion they cannot support the case of the plaintiff.

The same observations apply generally to the other documents produced by the plaintiff except where there is clear evidence that they are not genuine. I do not think we are justified in rejecting them on the ground that copies were admitted in the suit of 1792 without sufficient proof of the loss of the originals or that the persons executing or writing them on behalf of the respective parties have not been shown to have possessed the authority to do so. The kabuliyat or bond of 1874 was executed by Somer Singh on behalf of the jagirdars of Jagodih, but if he signed in the jagirdar''s presence and the signature was what is known in the vernacular as "bakalam," i.e., by the band of some one else, the question of authority arises.

The evidence of the plaintiff, therefore, leads to the following conclusions:

The country of the Chief of Jagodih lying within Pargana Chai was brought under the dominion of Hemant Singh, the Raja of Ramgarh in 1640. It is possible, as has been found by the Subordinate Judge, that the Jagodih family is older than the Ramgarh family and that the Chief of Jagodih was the most powerful of the minor local Chiefs in that part of the country, who all owned allegiance to Ramgarh. Hemant Singh made an assessment of the annual produce of the villages lying within the Jagodih Chief''s territory and prepared the kamil jama upon which the permanent Settlement was eventually made. The authority of Ramgarh was frequently disputed; but in 1764 Madan Singh finally reduced it. From that time the Chief of Jagodih left all his villages except 21 which were situated in the neighbourhood of his home and were granted to him by the Chief of Ramgarh on condition of service.

It is now urged on behalf of the appellants that these 21 villages were ancient nankar villages; i.e., villages given in lieu of the allowance given by the Moghuls to zamindars for collecting the revenue. But in support of this there is no evidence beyond the assertions made by the Chiefs of Jagodih from time to time. There is evidence that in 1728, 1731, 1732 and 1733 the Chief of Jagodih executed kabuliyats in favour of some representative of the Moghul Emperor. I doubt the genuineness of these kabuliyats, but even if it; be admitted that at that time the Chief of Jagodih was paying revenue direct to the Moghuls, it seems clear that by 1764 his State had bean completely conquered and absorbed by Ramgarh.

This evidence shows that for some time the Jagodih Chiefs held the 21 mouzas as tenure-holders entitled to hold ''the lands free of rent for the services required of them. It is presumed that as their territory lay on both sides of the Grand Trunk Road those services consisted of policing the road and of otherwise assisting the proprietor when necessary. In 1772 and 1773 rent appears to have been realized from them, because after the advent of the East India Company it was no longer necessary for the zamindar of Ramgarh, as was observed by Mr. Leslie, to keep a rabble army of retainers. In 1776 the rent was definitely commuted to Rule 656 12-0 and six villages were assigned as security for the same. In my opinion this evidence is sufficient to rebut the entry that the villages in suit are held under a shikmi taluki A judicial finding though not res judicata was entered to this effect in 1905 in a suit in which the proprietor of Ramgarh sued Hiram Khan, the Chief of Jagodih for the rent of the years 1958 to 1961 Sambat describing him as mashruti (conditional) jagirdar and obtained a decree against him.

I propose next to consider the evidence upon which the respondent claims that the Settlement Officer''s entry that Jagodih was a shikmi taluk is correct. Hiram khan in his mortgage in favour of Rai D.C. Ghose described the mortgaged property as revenue free nankar dehat. In this written statement in this suit the claim to a lakheraj right is withdrawn and It is pleaded that the mortgagor is a talukdar within the meaning of Section 6 of Regulation 8 of 1793; In argument before the learned Subordinate Judge that case was changed, and it was suggested that the mortgagor should have been held to be an actual proprietor u/s 5 of the Regulation. It is now urged that Tej Singh''s letter of 1772 to Capt. Camac at Patna shows that the Chief of Jagodih was paying revenue to the East India Company through the Maharajah of Ramgarh. The letter certainly does contain a promise to take revenue from Jagodih but the promise was never carried out.

Next it is said that in 1777 Pareshnath acknowledged the existence of some nankar villages and, therefore, he had a proprietary right when he issued a parwana on Patlu-peon not to realize rest from the nankar villages granted to Raja Lal Khan. I have shown that the letter does not contain any such admission. On the contrary it was Pareshnath who objected to Tej Singh''s promise being carried out and insisted that Lal Khan was a jagirdar. The Awarazas of 1774, 1776, 1777, 1778, 1780 and 1782 refer to the 21 villages held by Lal Khan as jagir and are inconsistent with any admission that he was holding nankar land as a shikmi or independent talukdar.

It is said that in the ekrarnama delivered by Maninath in 1784 Maninath declares that the said Rajas have set apart one-fourth their villages on account of Government revenue. The word "malguzari" may mean both rent and revenue and before the Permanent Settlement rent in the English sense was unknown. It was hot inaccurate to say that a tenure holder was paying revenue to his landholder. That Lal Khan was a jagirdar in Maninath''s opinion is clear from his written statement at p. 50 of the paper-book which was filed in the suit of 1792. Mr. Camac in 1780 no doubt wished a separate engagement to be taken from Lal Khan and so did Mr. Chapman, but that wish was never carried out. The payments made in 1782 to Daryao Singh do not show that they were made in his capacity as an independent taluqdar or other actual proprietor.

It is next pointed out that in his appeal petition to the Sadar Diwani Adalat (p. 87 of the paper-book) Bed Khan asserted that the suit of 1792 was for 406-1/2 villages besides nankar villages the jama of which in rupees was 6,501. In 1848 Shiv Raj Khan in the declaration of heirship (p. 120 of the paper-book) asserted that he held 15 villages revenue free. In the mulki forms filed in 1842 assertions of the same kind ware made. These assertions do not carry the case very far.

With regard to the Acts of Government, we find that Ramgarh was settled for one year in 1771, for three years, from 1772 to 1774 and for 5 years from 1775 to 1780. The first of these documents makes an allowance of Rs. 500 on account of inam nankar. The other two do not. These documents do not in any way show that there were any nankar villages in the possession of Lal Khan. It is possible that in the time of the Moghuls before the accession of the East India Company to the Diwani some nankar allowance used to be granted to the Chief of Jagodih, but there is no evidence that after 1765 they were allowed any nankar or to retain any lands in lieu thereof on the footing of any proprietary right. The evidence on the contrary shows that after 1764 Makund Singh deprived them of all their lands of the 21 mouzas which he assigned to them for their maintenance.

It is contended that though the Chai Chiefs lost their proprietary right to 406 1/2 mouzas they retained it in that small fragment comprised in the 60-1/2 mouzas which were the subject of the suit of 1792 and that they were at the time of the Permanent-Settlement actual proprietors in respect of that fragment. Apart from the effect of the Permanent Settlement on the status of actual proprietors who did not make a separate engagement with the Government, to which subject I will presently refer, it seems to me clear that at no time after 1764 was the Chief of Jagodih holding any land in proprietary right.

The entry, therefore, that he was a shikmi talukdar in the sense of a dependent talukdar paying revenue through another seems to me to be supported by no evidence at all.

It is clear that the Settlement Officer was using the term "shikmi" or shamilat" talukdar as meaning a dependent proprietor who was entitled to separation as an actual proprietor and who was paying revenue through another. The term has been used to indicate any tenure holder who dates back to the Permanent Settlement by Mr. Field in his Introduction to the Bengal'' Regulations and by the High Court in Calcutta and by their Lordships of the Privy Council in various decisions: "shikam" is the Persian for belly and shikmi taluk means literally a taluk within the belly of another or dependent upon another, and "shamilat" means joint or co-ordinate; and the ordinary meaning of the term "shikmi" talukdar is a talukdar who may or may not be an actual proprietor. At the time of the Permanent Settlement the East India. Company found in this Province many classes of persons who all claimed to be the owners of the soil. Some were ancient Chiefs and Rajas, others belonged to great land-holding families which had come into existence during the Mahomedan Government; others were officers in the employ of the Moghuls; others again were farmers who had in course of time begun to claim a prescriptive right to the office. Some were called zemindars and others were called talukdars or Chaudhurys.

The talukdars were divided again into two classes, namely, independent or Huzuri talukdars who paid their revenue direct to Government, or shikmi or mazkuri or dependent talukdars. These again were divided into two classes, namely those who were actual proprietors of the soil and paid their revenue through'' another proprietor and those who were, not actual proprietors. Section 5 of Regulation 8 of 1793 empowered the East India. Company to treat as actual proprietors the shikmi and dependent talukdars enumerated in the section. A talukdar in whose taluk the proprietor, through whom he was paying revenue had no proprietary interest, was entitled to separate himself unless he was u/s 6 debarred from so doing by his title deeds. The need of the East India Company for money was great and as there was no time to make a detailed inquiry, they decided to treat as the actual owner of the soil the person with engagement for the revenue.

The result was that all those talukdars who were actual proprietors, but who failed to separate themselves ceased to be proprietors and became tenure-holders or tenants in the English sense. They fell into the category provided by Section 7 which runs as follows:

Talukdars whose taluks are held under writings or sanads from zemindars, or other actual proprietors of lands, which do not expressly transfer the property in the soil but only entitle the talukdar to possession so long as he continues to discharge the rent or perform the conditions stipulated therein, are considered as lease-holders only.

In Section 8 special provision is made for jungleburi taluks which although to all intents and purposes proprietary estates, are classed as lease holders. The Regulation makes a sharp distinction between revenue and rent although the contrary has been sometimes said. In the opinion of the framers of the Code revenue was that which was payable to Government by the zemindar, independent talukdar or other actual proprietor who took Settlement for the zamindari. All others persons holding mal lands in the estate were subordinate in status and were liable to pay rent unless exempted by the terms of the engagement or by special contract with the zemindar. It was the duty of the zemindar or independent talukdar engaging with Government to take in his turn the necessary engagements from the talukdars dependent upon him. The Muhammadan Government had recognized no rights of property in the soil in anyone except Government and every person holding any interest therein had been liable to pay revenue to the Crown, and although there is some evidence that rent in the English sense of payment for the use and occupation of a land to a private proprietor other than the King had been known in Hindu times, the Muhammadan Government declined to subscribe to any such economic theory. The result was that the Collector of the revenue was at most entitled to a fee in addition to the revenue demandable from the raiyat. But the East India Company bringing with them a wholly different conception of the ownership of land decided to establish a middle class in whom would be vested a right in the soil, and they carried out this intention by enacting that the zemindar was entitled to contract for rent from his tenants without any reference to the revenue payable by him to Government. The rents, for some years were regulated by custom but though an attempt was made to protect the raiyat against competition rents by the Legislature the growth of population which followed upon a period of settled Government created such a sudden and urgent demand for land that the attempt met with signal failure.

Next in order to put a stop to the entertainment of application for separation long after Regulation VIII was enacted and to protect the rights of purchasers of estates sold for default of revenue, Regulation I of 1801 directed that a dependent talukdar entitled to separation who failed to make his application within one year, was to be debarred from making any application to separate, but that in other respects his rights would not be affected by the Regulation. This proviso, in my opinion, merely saves such rights as a dependent talukdar may claim as a tenant. It is a contradiction in terms to say that a dependent talukdar who had lost the right to separate himself could continue to remain an actual proprietor co-ordinate in status with the zemindar who had engaged for the revenue. The rights that were reserved to him were rights in regard to succession, transfer and the like. It may be conceded that if a dependent talukdar had been an actual proprietor be would become a tenant liable to be resumed for escheat but on no other ground; but if he was not formerly an actual proprietor his status would be governed by contract or custom.

A reference to the resumption Regulations in respect of lakheraj lands which were passed in the same year leads to the same conclusion also.

The effect of Regulation XIX of 1793 and Regulation II of 1819 was that resumed lands less than 100 bighas in area were annexed to the tenure of the dependent talukdar if any in whose taluk they were situated. In other words the relationship of landlord and tenant was established by law between the talukdar and the holder of the lands. There is, therefore, nothing startling in the view that all dependent talukdars became after 1801 the tenants of the proprietor of the estate.

In the lower Court a case seems to have been made that the talukdar of Jagodih was in effect a lakherajdar at the time of the Decennial Settlement; but that case has been abandoned before us and now upon the facts it is not arguable. The case now argued is that be was in possession of nankar lands as a part of his ancient zamindari and that at the time of the Permanent Settlement they were assessed to revenue in conformity with the Regulations and that by arrangement the revenue was computed at the income of 6 mouzas which were assigned ''as security to the proprietor who undertook the duty of paying it to Government. Such a case is intelligible; but in my opinion the answer to it is that it is not supported by the facts. It is difficult to see why the proprietor of Ramgarh should have undertaken the position of a mere post office for the transmission of the revenue and what remedy he had against the talukdar in case of default. Under the Regulations his estate was liable to be sold for the talukdar''s default unless he chose to pay the arrear himself. In my opinion the consideration for the grant of the 21 villages was that the Chief of Jagodih accepted the status of a tenure holder and he was confirmed in that position by the Permanent Settlement and he has continued to occupy it ever since.

The next question is whether the Settlement Officer''s entry that the tenure is not resumable is correct.

On this part of the case the plaintiff puts his argument as follows: He says that although it was open to the pro-praetor of the Ramgarh Estate to create a tenure that would pass an absolute estate of inheritance he has in fact never done so at any time and that even an istimrari mokarrari tenure which for a long period was considered to be such an estate has now been held to be an estate resumable on failure of male heirs in the direct line of the grantee and that a jagir is the highest form of tenure known in the estate and that has been held in repeated judicial decisions, and though originally a tenure for life, it has by custom become an estate in tail male: Ram Narain Singh v. Chota Nagpur Banking Association AIR 1917 Cal 748, Maharaja Pratap Udainath Sahi Deo Vs. Ganesh Narain Sahi and Others, , Srinath Roy v. Pratap Udai Nath Sahai Deo AIR 1923 PC 217 and Sifton''s Settlement Report, page 89. A jagir which was originally a life grant, has by custom acquired immunity from resumption except on failure of male heirs in the direct line of the grantee and as there is no tenure within the estate with privileges higher than this, the plaintiff is willing that the taluk in suit should be recorded as resumable like other jagirs. In about 1777 Mr. Heatley reported that the income of Ramgarh Estate was Rs. 1,53,000; but it was found that the proprietor was seldom able to pay a revenue of Rs. 30,000 because he had alienated large tracts of country as jagirs. In 1788 Mr. Leslie reported that these jagirs should be resumed by the proprietor on the death of the holder at the time but no orders were passed by the Board of Revenue and the evidence is that by custom the jagirs have in fact become hereditary and that sometimes a succession fee is exacted. It is true that since 1764 there is no evidence that any services have been actually performed by the talukdars; but in my opinion the evidence shows that the condition of the grant was service. The situation of the taluk in the neighbour, hood of the Grand Trunk Road and the unsettled condition of the times which complied the Ramanath Chief to retain armed forces and the admission of the talukdar himself in 1784 show that the grant must have been conditional upon service and that it was a jagir in the true sense.

As there is no question of the land being lakheraj and as the land is included within the ambit of the plaintiff''s estate, the burden of proving the incidents of the tenure before the Settlement Officer rested upon the talukdar. The sole ground upon which the Settlement Officer appears to have arrived at his conclusion was that Jagodih was entitled to be separated from the Ramgarh Estate in 1793 as an independent taluk and that the Chief had continued to pay Government revenue since the Permanent Settlement through the proprietors of Ramgarh. In my opinion there was no reliable evidence for such a conclusion. There is no evidence that Jagodih ever paid any revenue though Ramgarh before 1793 or that he was entitled at that time to be classed as an actual proprietor. In my opinion, therefore, the entry that the taluk is not resumable is incorrect and the plaintiff is entitled to have it declared that the taluk is resumable upon failure of male heirs in the male line. The question may be asked "whose heirs?" The answer, I think, is that the taluk is resumable upon the failure of male heirs in the direct line of the original grantee Lal Khan.

It remains next to consider whether the contention of the respondents that Section 258 of the Chota Nagpur Tenancy Act is a bar to the suit.

Now Section 83 of the Chota Nagpur Tenancy Act, 1908 (Bengal Act VI of 1908) enacts as follows:

(1) When a draft Record of Rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period, and shall receive and consider any objections which may be made to any entry therein, or to any omission there from, during the period of publication. (2) When such objections have been considered and disposed of in the prescribed manner, the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under this Chapter.

When the draft record of Mouzas Paro and Jagodih was prepared and published, an objection was made by the Maharaja of Ramgarh on the 10th February 1913 that it might be recorded that the shikmi taluk was held in jagirdari right in lieu of service and that the word "resumable" might be entered in Col. 5 of khewat No. 2. On the 13th August 1913 Mr N.N. Ghose recorded an order declaring that the entry was correct and declining to make any alteration. The matter then appears to have been taken by the proprietor of Ramgarh to the Settlement Officer Mr. Sifton, who on the 1st February 1914 recorded the following order:

Order in case u/s 89 of the Chota Nagpur Tenancy Act.

I have heard pleaders and counsel upon the question of the nature of the terms of Rampur, Jagodih, Itkhori and Paroria and Barsote. I reserve my orders until I should have had an opportunity of studying the paper-books of two proceedings in the High Court on the relevancy and meaning of which the parties were at variance. It is not necessary for me at this stage to write a detailed judgment as the parties will have an opportunity after final publication of proceeding in a formal suit. After reading the evidence produced, I am satisfied that these tenures are not of the same origin as the jagirs founded by the Padma Raja and his predecessor. They have hitherto been regarded and treated as shikmi or shamilat taluks and they probably existed as independent properties before the Ramgarh Raj was established, and I can fined nothing in their recent history to change the status of the holders of these taluks. As they were not originated by the Ramgarh Raj I find them to be not resumable by the zamindar. They will be noted in the khewat as not liable to resumption.

On the 24th March 1914 the Settlement Officer made the following supplementary order:

A petition has been filed by the Manager of the Court of Wards on behalf at the Ramgarh Raj enquiring under what section my order of 1st February 1914 was passed and whether it was a revisional order u/s 89, Chota Nagpur Tenancy Act, in regard to the tenures Jagodih, Rampur, Itkhori, Paroria, and Barsote. The order was not an order of revision. There had been no objection under 8. 83 in reference to any of the tenures except Jagodih, and the order of the Assistant Settlement Officer who tried the case of the resumability of Jagodih held it to be non-resumable. The question of the nature of these tenures had been reserved by me for a full hearing when notices for orders were sent by the attestation officers. My proceedings were not and did not purport to be taken u/s 89, Chota Nagpur Tenancy Act, and hence my order will not be any bar to a subsequent civil suit to determine the status of these tenures.

It is, however, contended by the respondents that although the Settlement Officer did not think that his order was an order u/s 89 it was in fact such an order, and that u/s 258 no suit can lie so as to affect that order Section 258 of the Chota Nagpur Tenancy Act runs as follows:

Save as expressly provided in this Act, no suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any decision, order or decree of any Deputy Commissioner or Revenue Officer in any suit, application or proceeding u/s 29., Section 32, Section 35, Section 42. Section 46, Sub-section (4), Section 49, Section 50, Section 54, Section 61, Section 63, Section 65, Section 73, Section 74A, Section 75, Section 85, Section 86, Section 87, Section 89, Section 90, or Section 91 (proviso) or under Chs. XIII, XIV, XV. XVI, or XVIII, except on the ground of fraud or want of jurisdiction and every such decision, order of decree shall have the force and effect of a decree of a civil Court in a suit between the parties and, subject to the provisions of this Act relating to appeal shall be final

Now, was the Settlement Officer acting u/s 89 of the Act on the 1st February 1914? In my opinion he was not In the first place, ha did not revise any decision made u/s 83; but even if it were held that he did revise the entry in the draft record and that he passed an order within the meaning of Section 89, then the plaintiff''s reply is that he is not seeking to vary, modify or set aside, either directly or indirectly, that decision. He is not concerned any longer with any entry in the draft record. The final record, having been published, he is bringing the present suit for a declaration that the final record is incorrect and this he is entitled to do under the general law. He might have proceeded u/s 87 of the Act for the correction of the entry, but he has chosen not to do so. He has an alternative remedy and Section 258 of the Act is no bar to the suit.

It was also argued that the learned Subordinate Judge was right in finding the issue of limitation against the plaintiff.

It is contended that as the talukdar first made his claim to proprietary rights in 1792 and repeated it in 1842 and 1843 the present suit is barred by the rule of 6 years'' limitation under Article 120 of the Limitation Act. The answer to this is that it was not necessary for the plaintiff to take notice of every challenge and that a new cause of action arose when an authoritative record of the title of the talukdar was made in the survey and settlement proceedings.

The learned Subordinate Judge also finds that on the death of the original grantee the possession of his successor become adverse if the tenure was a life jagir. In my opinion there is no evidence of any adverse possession. The tenancy was continued by the consent of both parties, and as the evidence shows that the jagirdar was let into possession by the proprietor it is not open to him to plead adverse possession during the continuance of the tenancy. In my opinion the learned Subordinate Judge''s findings on the issue on limitation cannot be sustained.

There is one other question which requires consideration and that is the effect of the decision of the Sadar Diwani Adalat in 1795 in the appeal against Mr. Hunter''s judgment of the 17th December 1793.

In my opinion that decision operates as res judicata. Although the case of the plaintiffs in that suit was that they were in possession of their nankar villages, and although they did Dot pray for the recovery of those villages the point directly and substantially in issue was whether the plaintiffs had a zamindari or milkiat right in the 406 villages in Pargana Chai. If they had succeeded in proving their milkiat right to those'' villages'', their title to the alleged nankar villages which were in their possession would have also been established without a further suit. Indeed it was contended by the plaintiffs in their appeal that the fact that they were in possession of the nankar lands was proof of their ancient proprietary title. In my opinion the rule of constructive res judicata applies here and it must be assumed that the question of the title of the plaintiffs to the nankar lands was also decided against them. If that view is correct, then the Jagodih Chiefs lost the right to claim in any subsequent proceeding proprietary rights to any of the 21 mouzas claimed by them as nankar. It follows then that they cannot now be heard to urge that proprietary right to the 41 villages now in suit.

The decision of this appeal does not depend on oral evidence. It depends upon the construction of and weight to be attached to documentary evidence and on matters of record in respect of which we are in as good a position to pronounce a decision as the learned Subordinate Judge.

In my opinion, after giving due weight to the learned Judge''s appreciation of the evidence in the case, his decision cannot be supported and the appeal must be decreed with costs.

As First Appeals Nos. 163, 169 and 230 of 1922 were heard together, the judgment in each appeal will be governed by the material portions the judgments in the other two.