Kamakshya Narayan Singh vs Thakur Jado Charan Singh and Others

Mullick, J.—The plaintiff Kumar Kamakshya Narayan Singh is the proprietor of the Ramgarh estate which is now under the management of the Court of Wards. Defendant 1, Thakur Jado Charan Singh, a member of the plaintiff''s family, is in possession of the 88 mouzas in suit His estate is now managed by a manager appointed under the provisions of the Encumbered Estates Act. Defendant 2 Bindheswari Charan Singh is Jado Charan''s younger son. Defendant 3 is the wife of Jado Charan Singh. Defendant 3 is in possession of some of the villages in suit by virtue of a hibanama executed by defendant 1. Defendant 2 is in possession of a part of the property under a gift from defendant 3, and another part by transfer from defendant 1. It is alleged that defendant 2 had a decree against defendant 1 and that the transfer was made in order to satisfy this decree. Defendant 10 is the minor ion of the eldest son of defendant 1. Defendants 4, 5, 6, 8 and 9 are lessees or purchasers from defendants 1, 2 and 3. The remaining defendants are members of the family of defendant 1, defendant 16 being a khorposhdar.

The cause of action is said to have arisen in 1918 when plaintiff discovered that the lessees were prospecting and digging for mica in some parts of the land in suit. The plaintiff accordingly asks for a declaration that the defendants have no right to any minerals in the mouzas and that the leases to defendants 4 and 8 are void and inoperative. He also prays for an injunction upon the lessee defendants and for damages.

Written statements were filed by defendants 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 16, 18, 19 and 20. The principal defendant i. e., defendant 1 denied that the plaintiff had any title. He claimed the 68 mouzas in pargana Markacho as an independent talukdar who has been paying revenue since the time of the Permanent Settlement through the plaintiff and as regards the 20 mouzas in Pargana Rampur, he claimed them as a revenue free estate created by a sanad dated 4th November 1791, as a reward for services rendered to the East India Company in the course of the conquest of Zillah Ramgarh.

Defendant 1, further stated that his independent taluk originally known as Dehat Markacho now comprises 70 mouzas in pargana Markacho (this appears to be a mistake for 68) and that his revenue free estate originally consisted of mouzas Dharguli and Chalkusa in pargana Rampur but that it now includes 28 other dakhali mouzas which have since been established and not 18 as alleged in the plaintiff''s schedule.

The Subordinate Judge found that defendant 1 had proved his title as independent talukdar in respect of the 68 mouzas in pargana Markacho. In regard to the mouzas Dharguli and Chalkusa and their derivatives he found that the predecessors of the defendants had held a revenue free estate long before the Permanent Settlement, the validity of which was affirmed in 1791. It is not clear whether he found whether revenue was assessed and then remitted or whether ont revenue at all was ever assessed, but the findings were sufficient to defeat the plaintiff and the suit was accordingly dismissed.

The lands in suit have been referred to in this suit at various times as Dehat Markacho, Dehat Dharguli Dehat Chalkusa, lot Markacho, pergana Markacho and pergana Rampur. They lie in the present District of Hazaribagh within the Chota Nagpur Division in the province of Bihar and Orissa. The district of Hazaribagh has been carved out of Zilla Ramgarh which was a large tract of country in the Chota Nagpur plateau within the Muhammadan Suba of Bengal, Bihar, Orissa, out of which the present province of Bihar and Orissa was created in 1912. Till its conquest in or about 1760 Zillah Ramgarh was within the jurisdiction of the Muhammadan Naib Subedar of Bihar and Orissa who was resident at Patna and was the Deputy of the Nawab Nazim of Bengal whose headquarters were at Murshidabad and whose sovereign was the Moghul Emperor at Delhi. It appears from Hunter''s Statistical Account of Bengal for the Hazaribagh District, the Bihar and Orissa District Gazetteer by Lister, Sifton''s Settlement Report and Robinson''s History of the tenures of the Hazaribagh District that the Mohamedans first began to interfere with the jungle tract in question, which they called Jharkhand, in or about 1585 and that in 1632 the Emperor Shajahan included Chota Nagpur in the jaghir of Palamau which he gave to the Subedar of Patna on an annual rental of Rs. 1, 36, 000. Between 1642 and 1670 the pressure of the Muhamadans forced the Chief of Ramgarh to remove to Ichak. The country was then much disturbed and the various chiefs who held estates in it and owed a very slender allegiance to the Muhamadan Government, were at constant war with each other. The disorder was further increased by the Maharatta invasion'' which passed through a part of Chota Nagpur on its way to Bengal. In consequence of the grant of the Dewani of Bengal, Bihar and Orissa made in 1765 by the Emperor Shah Alam to the East India Company the right to receive the tribute of Ramgarh passed to the Company; but apparently owing to the disturbed condition of, the tract no attempt was made to subdue it till 1772. In that year Mukund Singh was the Chief of Ramgarh and his relative Tej Singh sought the assistance of Captain Camac to attack Mukund Singh who was put to flight and died eventually in exile. The Ramgarh Raj passed to Tej Singh and the present plaintiff is his direct lineal descendant. Tej Singh died in 1772 or 1774 and his son Pareshnath in 1782. In 1790 a decennial settlement was made with Pareshnath''s son Maninath, which was made permanent by the Permanent Settlement Regulation (Reg. 1 of 1793). Zilla Ramgarh was ruled by the military authorities till 1780 when Mr. Chapman succeeded Captain Camac as the first civilian Administrator of the conquered provinces. A British district was then formed by amalgamating with zillah Ramgarh the Taluks of Kendi, Kunda, Kharagdiha, the territory called Palamau, Chakai, Panchet and a portion of the area round Sherghati. In 1833 in consequence of the rebellion of the aboriginal tribes zilla Ramgarh and the jungle mahals together with some other territories were exempted from the operation of the British Regulations and every branch of government within those areas was vested in an officer of the Supreme Government styled as Agent to the Governor-General, in the conquered provinces or the SouthWest Frontier Agency. A new district comprising parganas Ramgarh, Kharagdiha, Kendi and Kunda was next constituted under the name of Hazaribagh. The Chief Executive-Officer of this district was the Principal Assistant to the Governor-General''s Agent, and the territory was administered under special rules. In 1854 the designation of the agency was changed to the Chota Nagpur Division and the title of the chief-officer was changed from Governor-General''s Agent to Commissioner.

The genealogical table given at the end of the learned Subordinate Judge''s judgment which is proved by the evidence adduced in this case shows that Mukund Singh was descended from Bagdeo Singh the younger brother of Singhdeo Singh from whom Tej Singh was descended. It appears from the historical works and reports cited above that Singhdeo and Bagdeo were two Rajput adventurers from Bundlekhand and that Bagdeo took possession by force of the territory known as Ramgarh within which the lands in suit lie. The evidence shows that one Fateh Singh was descended from Singhdeo and that he and one Bechu Singh assisted Tej Singh in defeating Mukund Singh. Fateh Singh was the ancestor of defendant 1, Jado Charan Singh, and it is alleged that both Fateh Singh and Bachu Singh were rewarded either by Tej Singh or the Bast India Company with Jagirs. In 1874 the Chota Nagpur Division was declared to be a scheduled district, and it will be a question for consideration in this case whether the regulations passed by the East India Company between 1790 and 1833 were in force in the Hazaribagh District and what, if the regulations applied, was the effect of de-regulationizing the tract.

The plaintiff''s case is that parganas Markacho and Rampur lie within estate Ramgarh which was first settled with the predecessor for ten years in 1790 by the Decennial Settlement and then permanently settled in 1793 and which is entered in the Collector''s registers as touzi No. 28, District of Hazaribagh. He alleges that pargana Markacho now consists of 68 mouzas and that pargana Rampur of 2,000 mouzas or more, and that the defendants hold as a jagir tenure the 68 mouzas of pargana Markacho and 30 mouzas in pargana Rampur. In his plaint he claims relief in respect of only 88 Mouzas namely, 68 in pargana Markacho and 20 in pargana Rampur. On the 14th December 1922, he made a prayer to the Subordinate Judge for permission to add to Schedule B. of the plaint ten additional mouzas as being Dakhli villages appertaining to Dharguli and Chalkusa in thana Rampur and as being within the jagir of the defendants. That petition was rejected on 15th December 1922 and is renewed before us by the learned Counsel appearing in support of his appeal.

It is explained that the fact that the jagir consisted of 98 mouzas was not discovered by the plaintiff till the defendants tendered Ex. H/1 as evidence in the Subordinate Judge''s Court. This document is a notification in the Government Gazette published on 18th August declaring that General Manager of the Wards and Encumbered Estates in the District of Hazaribagh has been appointed manager of the immovable properties of defendant 1, Babu Jado Charan Singh of Dharguli, under the provisions of Section 2, Chota Nagpur Encumbered Estates Act 6 of 1876, The Act provides for a scheme for the management of the estates of certain disqualified proprietors and confers immunity in respect of liabilities and in respect of other matters into which it is not necessary at the present moment to enter. It is sufficient to say that the notification in this particular case declared that the estate taken under management consisted of 30 mouzas in pargana Rampur and 68 mouzas in pargana Markacho. Before us the amendment is pressed on the ground that it will make no difference to the defendants and will in fact save a multiplicity of suits. It has to be remembered, however, that the settlement records showing the full extent of the tenure in suit was published in or about 1915 under the provisions of Section 33(2), Chota Nagpur Tenancy Act. The plaintiff, therefore, had ample opportunity for framing his plaint correctly, and the plea that he was not aware that the tenure consisted of 98 mouzas, is not understood. Further it appears that on 4th May 1922 among the issues there was an issue which ran as follows:

Is the list of villages given in the schedule attached to the plaint complete and correct?

We might have acceded to the plaintiff''s request if it had been merely a question of compensating the defendants in costs; but that is not so. One of the material issues in the case is whether defendant 1 has acquired any right to the mineral by adverse possession; and it is urged before us that the proposed amendment of the plaint cannot be made without giving the defendants an opportunity of ascertaining whether they will put forward any case of adverse possession in respect of the ten mouzas. We must, therefore, reject the application for amendment.

Confining then the scope of the suit to the mouzas entered in Schedule B, we find that the finally published settlement record shows that they lie within touzi No. 28 of which the plaintiff is the proprietor. The plaintiff has filed copies of the settlement record for each mouza (see Ex. 1 to 1 (rr) pages 179 to 263 of the paper book and Exs. 21 and 22 at p, 264 and 267a). Exs. 1 to 1 (rr) relate to mouza Markacho in thana Kodarma and Ex. 21 to mouza Chalkusa in thana Barahkatha and Ex. 22 to mouza Dharguli in thana Bogodar. In all three sets it is recorded that touzi No. 28 pays a permanently settled revenue of Rs. 22,998-6-7 and that the mouzas entered therein comprise a jagir resumable after the extinction of the family of Fateh Singh, which means that they are resumable upon the failure of male heirs in the male line, and that the rental of the jagir tenure is Rs. 1387-1-3 and that the cess payable thereon is Rs. 2112-6-0. The remark column contains the following entry in respect of some of the mouzas:

Includes rent and Dighwari of other villages of pargana Markacho, cess of other villages of pargana Markacho, mouza Dharguli, Chalkusa and other villages of Rampur Pargana, Dighwari paid to government direct.

In a few cases such as mouza Manik Munda (Ex. 1 (qq) p. 263 of the paper book) the entry is:

There is no pattah. Includes rent and Dighwari of other mouzas in pargana Markacho and cess of other mouzas in pargana Markacho and mouza Dharguli and Chalkusa etc. of other mouzas in pargana Rampur.

It is contended before us that the Settlement Officer intended to state that the rental of Rs. 1387-1-3 did not include the rent of mouzas of Dharguli and Chalkusa and of other mouzas of pargana Rampur which were revenue free though the figure Rs. 2112-6-0 indicated the cess payable upon the mouzas in both, pargana Markacho and pargana Rampur. The argument, therefore, is that this part of the settlement record indicates that mouzas Dharguli and Chalkusa and other mouzas of pargana Rampur were held by the defendants as a revenue free estate and that in so far as the other parts of the settlement record show that it was a part of the defendant''s jagir they are wrong. But whatever obscurity there may be in some of the above entries in the remark column it is cleared up by reference to Ex. 22 which relates to mouza Dharguli. Here the mouza is shown as being situated in a nonresumable jagir of which the rental is Rs. 1387-1-3 and the cess is Rs. 2112-6-0. The entry in the remark column runs as follows:

Including rent and cess of other villages in Markaoho and others.

This clearly shows that the figure Rs. 1387-1-3 includes the rent of mouza Dharguli and of the remaining mouzas of the tenure. The judgments of the Settlement-Officer, Exs. 26 and 26(a), dated 9th July 1912 and 30th July 1913 (pp. 89 and 91 of the paper book) also show that the claim to hold Dharguli and Chalkusa as a revenue free estate was disallowed and the mouzas were entered as appertaining to a jagir of which the rent was Rs. 1387-1-3. It appears that the revenue officer at first entered Dharguli in the draft record-of-rights as lakheraj of revenue free property, and an objection was thereupon filed by the proprietor Ram Narain Singh the predecessor of the plaintiff. The defendants produced a sanad dated 1791 from George Dallas, who was either an Assistant or Acting Collector, purporting to grant him these mouzas as lakheraj. The Settlement Officer hold that the grant was not valid and that the document was of doubtful genuineness and he directed that the tenure should be shown as an ordinary jagir, and that in the remarks column it should be noted that the rental of the mouza was included in that of the other mouzas belonging to lot Markacho. The entry in the draft record in respect of Chalkusa was exactly the opposite. There the mouza was entered as part of a resumable tenure (Kabil Japti) and Jado Charan Singh, defendant 1, lodged an objection and prayed that it might be recorded as lakheraj. The Settlement Officer dismissed the claim and held that it was correctly recorded as part of the rent paying tenure together with other mouzas of Markacho. In these circumstances we are justified in interpreting the settlement-record to mean that not only the mouzas in suit in pargana Markacho but also those in pargana Rampur are part of a rent paying tenure held under the plaintiff. As u/s 84, Chota Nagpur Tenancy Act, a presumption of correctness attaches to the record the onus is upon the defendants to rebut it before the plaintiff can be called upon to give any evidence in support of it.

It seems to mo, however, that the learned Subordinate Judge has rather missed this essential point in the case and for the most part thrown the onus upon the plaintiff. It is true that he concludes the discussion of the first branch of issue 1 with the following words:

If the above view is correct, as I believe it is, the only legitimate conclusion is that the statutory presumption of correctness attached to the finally published record-of-rights of the disputed villages has amply been rebutted and that the plaintiff having signally failed to prove that the disputed properties formed the khorposh properties of the defendant''s ancestors by virtue of a grant from a remote ancestor of his (plaintiff) the principle enunciated in the Privy Council cases referred to at the outset cannot apply to the present case and that the plaintiff is not entitled to claim any right to the underground minerals in the village in suit.

But it seems to me that the learned Judge has arrived at this conclusion by first finding that the plaintiff''s evidence is worthless. He does find that on 4th November 1791 Mr. George Dallas exempted Fateh Singh from paying any revenue for mouzas Dharguli and Chalkusa and it may be urged that this finding is sufficient to rebut the settlement record in respect of these mouzas and the mouzas which have grown up within the area occupied by them. But nowhere in the learned Judge''s judgment is any legal evidence referred to for arriving at the conclusion that the entry in respect of the remaining mouzas, i. e., those in pargana Markacho, has also been rebutted and that pargana Markacho was assessed with revenue and that

instead of being formed into a separate independent estate it was, presumably with the object of not multiplying the number of estates, included within the bigger estate Ramgarh in the way that the revenue assessed on Markacho was made payable to the proprietor of the said estate, and that accordingly the defendants ancestors all along paid and the defendant has also been paying the revenue due in respect of Markacho and the cesses due in respect thereof as well as in respect of Chalkusa and Dharguli to the proprietor of the Ramgarh Estate.

We, propose, therefore, first to discuss the evidence adduced by the defendants in order to see whether the record-of-rights has been rebutted. The oral evidence is of little assistance and the decision turns upon the documentary evidence filed by the defendants.

It is, however, to be observed at the outset that the learned Counsel for the respondents seeks to sweep away the record-of-rights by attacking the judgments of the Settlement-Officer of the 9th July 1912 and 30th July 1913. He urges that if he can show that the reasons given in the judgment were not sufficient then the record has no weight. Now, if we bad before us all the evidence derived from whatever source upon which the Settlement Officer prepared his record we might by coming to a different conclusion with regard to that evidence, be in a position to say that the record has, in our opinion, been rebutted. But here we have not got all the evidence upon which the Settlement Officer acted, and, therefore, a mere, perusal of the judgment will not suffice. (After dealing with evidence, his Lordship proceeded). Exs. 7 and 7(a) were filed in the trial Court on 1st November 1922 and Ex. 7(b) on 13th November 1922 and the affidavit made by the witness Prayag Das in regard to them states that they had been found four or seven days previously at Padma and could not in consequence be produced earlier. As the documents were accepted no inferences can be drawn against the plaintiff on the ground of the delay in production. It must be assumed that the delay was condoned, but the learned Subordinate Judge has declined to accept the documents as genuine on the ground that it has not been proved that they have come out of proper custody. On this point there is an apparent inconsistency between the affidavit and the deposition of Sheo Sahai Lal, but as I have already said Sheo Sahai cannot be relied upon, and I think the affidavit is true. There is no evidence as to who wrote these documents, but the signatures are more than 30 years old, and I think the presumption of genuineness should attach to them. (After further examining the evidence the judgment proceeded.)

According to the settlement record Marudih is a Nankar village which means a village hold by a proprietor in Muhammadam times in lieu of bread money or remuneration for services. In the trial Court the plaintiff''s explanation was that there were two sets of mouzas names Garhan and Marudih and that the tenure of defendant 1 still comprises one of these two sets; but before us a new case has been set up, namely, that shortly after the conquest of Ramgarh, Mod Narain, the proprietor of Dhanwar, took refuge in Ramgarh and was granted these two mouzas for his maintenance by the Raja of Ramgarh and that he was in possession of them till his death which occurred in Ramgarh and that after him his grandson Girwar Narain succeeded to the same. (His Lordship considered the remaining documentary evidence and proceeded.) The provisions of the Permanent Settlement Reg. 8 of 1793 and Reg. 1 of 1801 show that an independent talukdar was required to register himself as such and to separate his taluk from that of the zamindar in whose permanently settled estate it was comprised. Any talukdar who failed to so separate himself within the time allowed by the regulation was deemed to be lease holder whose contribution to the zamindar was rent and not revenue. Realizing the difficulty of his position the learned Counsel for the respondents has boldly asked us to hold that the Permanent Settlement Regulations do not apply to the Ramgarh estate and that Fateh Singh remained an independent talukdar notwithstanding the settlement made with Maninath in 1790. It becomes necessary, therefore, to examine this contention carefully.

On the 25th March 1790 the EastIndia Company gave a patta to Raja Maninath Singh for a period of ten years, from 1790 to 1799 for the zemindari of Ramgarh in the district of Ramgarh, The zemindari comprised certain parganas including parganas Markacho and Rampur.

On the 22nd March 1793 the Bengal Regulation 1 of 1793 was passed, it was addressed by the Governor-General in Council to the zemindars, independent, talukdars and other actual proprietors of land paying revenue to Government in the provinces of Bengal, Bihar and Orissa. By Section 4 of this Regulation the Governor-General in Council declared that;

at the expiration of the term of the settlement no alteration will be made in the assessment which they (the zemindars) have respectively engaged to pay but that they and their heirs and lawful successors will be allowed to hold their estates at such assessments for ever.

Regulation 8 of 1793 was passed on 1st May 1793 re-enacting with modification certain rules for the Decennial, Settlement passed on 18th September 1789 and subsequent dates.

Next Regn. 1 of 1801 was passed on 15th January 1801. Section 14 of this Regulation enacted that if any independent talukdar entitled to separate his taluk from the estate of the zamindar through whom he was paying revenue failed to apply for separation within a period of one year from the date of the Regulation, he would forfeit all title to separation and that his taluk would thereafter be considered as a dependent taluk not entitled to be separated from the zamindari to which it was attached though in other respects the rights of the talukdar were not meant in any degree to be affected by the Regulation. This means that his rights as lease-holder which was the status to which he was entitled upon failure to separate would not be affected.

By Section 7 of Regn. 8 of 1793 he was regarded as a talukdar without any property in the soil. He was entitled to possession so long as he paid the rent. His status as such was not to be affected by Regn. 1 of 1801.

Exhibit G/l, a judgment of the Sadar Dewani Adalat passed in 1804 shows that the above provisions of the Regulations of 1793 wore well-understood in Ramgarh. It appears that in 1796 the (proprietor of the Ramgarh Estate brought a resumption suit against one Raja Brijmohan Sahi, the grandson of Hirdai Sahi, for recovery of possession of pargana Kodarma alleging that it had been settled with him by the East India Company as part of his zemindari and that the defendant who was a dependent talukdar was wrongfully misappropriating the produce or in other words refusing to pay rent. In that suit after a protracted litigation the Sadar Dewani Adalat held in appeal that the defendant was proprietor and not a tenant and that he held pargana Kodarma as an independent talukdar paying revenue through the proprietor of Ramgarh. This pargana, therefore, though settled with Raja Maninath of Ramgarh in 1790 as his zemindari went out of the schedule of the lands settled with him as actual proprietor. If Fateh Singh and his heirs were entitled to similar relief in respect of Markacho why did they not sue in the civil Court. There can be no question that the form of relief was well understood and I am satisfied that Fateh Singh definitely accepted the position of a dependent talukdar at the time of the Permanent Settlement. The learned Counsel for the respondents suggests that having failed to get Kodarma declared to be a dependent taluk Maninath who was an astute and far seeing chief set about forging the documents bearing dates prior to 1827 with the intention that they might be used some day either by himself or his heirs as evidence in a resumption suit against Fateh Singh or his heirs. In my opinion the long gaps in the evidence and the obscurity of some of the documents make, among other reasons, such a hypothesis untenable.

It is now contended that these regulations never came into operation in Zilla Ramgarh in the same way as in the other Districts of Bengal, Bihar and Orissa. In my opinion the contention is groundless. The Ramgarh estate admittedly lies in the district of Hazaribagh which in 1833 was carved out of the original Zilla Ramgarh. Mr. Hunter in his Statistical Account of Bengal, Vol. 16, observes that from 1780 to 1833 the Ramgarh District was governed in general accord with the ordinary Regulations. In 1820 and 1831 certain aboriginal races rebelled and in 1833 Regn. 13 was passed for the government of Ramgarh and the jungle mahals exempting those tracts from the operation of the Regulations. Whether the Governor-General in Council was empowered to legislate by executive order so as to deregulationize any tracts within his jurisdiction may be open to question, but there is no doubt that he continued to exercise the power freely till 1861 when the Indian Council Act of that year, whilst validating his previous orders, took away the power for the future. The Government of India Act 1870 restored the power and in 1874 a Schedule District Act (Act 14) and the Laws Local Extent Act (Act 15) were passed by the Governor-General-in-Council for the purpose of declaring what Acts were in force in certain districts, where of the district of Hazaribagh was one and for the purpose of making provision for the enactment of rules for the administration of the same. We find accordingly that on the 21st October 1881, Regn. 1 of 1793 and Regn. 8 of 1793 were declared to be in force in the District of Hazaribagh (see B and O Statutory Rules and Orders Vol. 2 p. 148 and the Bihar and Orissa Code Vol. 5 p. 18). No special notification regarding Regn. 1 of 1801 appears to have been issued.

So far as concern that portion of Section 14 of this Regulation which dealt with the period of limitation for the separation of independent taluks, the statute has spent its force and consequently the omission to apply this provision of the law to Hazaribagh by notification under the Schedule District Act is of no consequence.

The learned Counsel for the respondents, however, relies upon Section 6, Laws Local Extent Act which shows that Regn. 1 of 1793 and 8 of 1793 were in force throughout the whole of the territory subject to the Government of the Lieutenant-Governor of Bengal except the Scheduled districts subject to such Government. As the present district of Hazaribagh was admittedly a part of the Chota Nagpur Division which was a schedule district enumerated in Schedule 4 of the Act, it is contended that the Regulations in question had never been in force in the district. In the first place it does not follow that because the Regulations were declared not to be in force in 1874 they wore therefore not in force at any time before that year. They do not themselves contain any provision limiting their extent. Next they purport to be of general application all over the province of Bengal and the most that can be said is that their operation was suspended in the district of Hazaribagh from 1833 till 1881 when they were reintroduced by a notification published under the Scheduled Districts Act.

The learned Counsel next refers to pp. 27 and 28 of Sifton''s Settlement Report where the Settlement-Officer states that a special resolution was passed by Government for the estate of Ramgarh in lieu of the original Regulations of the Decennial Settlement and that it was distinctly affirmed that no promise of permanency subject to the approval of the Court of Directors was held out in the case of Bihar and Bengal Districts. The date of this resolution is not given, but it is that the Collector was ordered to:

communicate it in lieu of the ten original resolutions which are not confirmed and are to be revoked.

At p. 28 Mr. Sifton observes that it was not till 1799 that Government declared that the settlement with the proprietors should be considered to be in force in perpetuity. The authority upon which the resolution was based is not disclosed, and until it is shown that the regulations passed by the Governor-General in Council in 1793 and 1801 never came into operation at all in the Ramgarh District or they were revoked therein by competent authority before 1833, I must hold that they were in force till 1833 and that the order of 1799 referred to by Mr. Sifton only had the effect of confirming what had already been done by the legislature. The order was an executive act which affirmed but could not create rights which had already accrued under the regulations.

Again Mr. Robinson in his Report on the " Land Tenures of the Hazaribagh District" dated 3rd April 1876 (Ex. 18) states that the Ramgarh estate was permanently settled with Maninath Singh in 1790. This conflicts with the settlement report. Again Ex. 27 a proclamation issued by the Governor-General in Council on 27th July 1798 and ad-dressed to the public of the district of Ramgarh, states that

it has come to the knowledge of the Governor-General that in spite of its being clearly and explicitly stated in Articles 3 and 4 of Regn. 1 of 1793, that the decennial settlement shall be: made permanent and that no alteration shall afterwards be made in that assessment, some of the zamindars etc., of zilla Bihar are labouring under a wrong impression that the zama of the land settled with them will be enhanced and that the said decennial settlement will be can celled on the expiry of the coming year. The Governor-General in Council accordingly notifies to the zamindars of the locality that it has never been the idea of the Government to make any alteration in the fixed jama of the land or to make any difference directly or indirectly in the permanent settlement which has been made by the Government sanctioned by the Board of Directors in England and announced to the public.

This shows that in the view of the Government Permanent Settlement Regulation was in operation in the Ramgarh District.

I agree with the learned Subordinate Judge therefore that Regns. 1 and 8 of 1793 were applicable to the lands now in suit.

The result is that the respondents have failed to rebut the case made by the plaintiff and to show that Fateh Singh was an actual proprietor within the meaning of Regns. 1 and 8 of 1793 or that he had any higher status than that of a dependent talukdar or tenure-holder liable to pay rent to the zamindar. The claim of respondent 1 that since the Permanent Settlement he has been paying revenue for the mouzas in pargana. Markacho through the zamindar of Ramgarh cannot be accepted.

This disposes of the properties in pargana Markacho.

A word may be said of the variation in the rent of the tenure. The record-of-rights shows the rental to be Rs. 1,387-1-3 for 48 mouzas and this appears to have been the rental from 1870 downwards. The rent shown in the earlier documents corresponds more or less closely with this figure.

The Awarza of 1784 shows the hakimi share of Fateh Singh''s tenure of 46 mouzas to be Rs. 1,103-2-6, The Awarza of 1785 shows the hakimi share to be Rs. 1,103-2-6 in respect of Fateh Singh and Rs. 180 in respect of Medni Singh without specifying the number of mouzas. The Awarza of 1786 shows the same hakimi share in respect of 46 mouzas of Fateh Singh and one mouza of Medni Singh. These documents are contemporaneous with the jagirdhari list of 1776, 1782 which give a rental of Rs. 1,098 for 46 mouzas and the jagirdari list of 1789 which gives a rental of Rs. 1, 290 for 48 mouzas. The kabuliyat of 1789 shows a jama of Rs. 1,112-8-0 for Fateh Singh and Rs. 180 for Medni Singh without specifying the number of mouzas. The ekrarnama of Thakur Kedar Singh of 1810 shows the mouzas in Markacho to be 45 and the amalnamas of 1810 and 1827 show the number of mouzas in Markacho and Rampur to be 47 and 48. In 1810 the rent appears to be slightly reduced and is entered in Kohar Singh''s ekrarnama at Rs. 1,283-8-6. The Awarza of 1870-1871 shows the hakimi share to be Rs. 1,292-8-6 which corresponds almost exactly with the kabuliyat of 1789. With the addition of certain charges which have nothing to do with rent the total demand is shown in this awarza to be Rs. 1,387-1-3. There has been no variation since 1870-1871.

To all intents and purposes, therefore, the rent has remained unchanged throughout and the mouzas which have grown-up since 1870 do not appear to have made any appreciable difference. In my opinion it is established that the tenure is held permanently at a fixed rent of Rs. 1,387-1-3.

It is also necessary to make some reference to the inconsistency noted by the learned Subordinate Judge between the claim made in the plaint that the tenure is a khorposh grant and the recitals in the plaintiff''s documents of title.

Now the first point to be noticed is that in the plaint it is alleged that the plaintiff belongs to the senior branch of the Ramgarh Raj. The genealogical table given at the end of the learned Subordinate Judge''s judgment, which I accept, shows that Mukund Singh belonged to the branch of Bagdeo who was the younger brother of Singh Deo to whose branch Fateh Singh also belonged. By the installation of Tej Singh who belonged to the senior branch in the place of Mukund Singh the Raj came back to the senior branch of which the plaintiff and the defendant Jado Charan are both members. But it is asserted in the plaint that in or about 1756 the then Chief of Ramgar, Maharudra Singh, son of Dalil Singh made a khorposh grant to the defendant''s ancestor for his maintenance. It is urged that as Maharudra Singh was a member of the junior branch he could not have given a khorposh grant to the defendant''s ancestor who was a member of the senior branch, for khorposh grants are by custom given only by senior members to junior members. Now, Dallas and Leslie describe Fateh Singh''s tenure simply as a jagir. A jagir includes a khorposh tenure. The amalnamas of 1809 and 1810 recite that the tenure has been given for loyal service and well wishing. The awarzas of 1767 and 1777 show that the mouzas were being held for some kind of military service and the same might be inferred from certain expressions used in the muchalka of 12th November 1809.

A petition dated 2nd August 1904 filed by Babu Krishna Chandra Ghosh, the Manager of the defendant Jado Charan''s estate while it was under the management of the encumbered estate authorities, speaks of the tenure as a khorposh jagir granted to Thakur Churamini Singh. Owing to a change in the tenancy law it was necessary for the tenure-holder to register his name in the sherista of the zamindar and the manager prayed that Jado Charan Singh might be entered in the place of the original grantee Churamani Singh. The document indicates that the original amalanama of Churamani Singh must then have been in his possession and that he considered a khorposh jagir identical with a jagir given for loyal service and well wishing. Reference has already been made to the two rent receipts for 1911 in which Jado Charan Singh has been described as an elakadar. All the other documents material to this point describe the tenure-holder as a jagirdar. In my opinion the learned Subordinate Judge attached too much importance to these discrepancies. In common parlance a grant be any member of the family would be a khorposh grant. It need not necessarily be limited to grants by a senior member of the family to a junior member. There is nothing unlikely in a grant having been made by the Chief of Ramgarh to a member of the senior branch for feudal service of some kind and in that case the grant would be both a khorposh and a service grant. Between 1767 and 1777 the condition of Ramgarh was very disturbed and it is not improbable that most jagirdars -were required to keep troops but after that time the necessity for military service disappeared and they became simple tenants for life, and if they were members of the family they were confirmed in the enjoyment of the superior status of khorposhar or a tenure-holder liable to resumption only upon failure of male heirs in the male line. I think the plaintiff was induced to describe the tenure as a khorposh by reason of the admission made by Jado Charan''s manager in 1904. There is no substantial'' variation between pleading and proof.

Another point upon which some argument has been addressed to us is with regard to the status of Tej Singh, Preshnath and Maninath. It is contended by the learned Counsel for the respondents that Tej Singh was never an actual proprietor within the meaning of Regulation I of 1793 and of Reg, 8 of 1793. It is urged that not being an actual proprietor, Tej Singh could not have kept the awarza bahis. This argument does not impress me.

It is next said that Maninath was only a temporary settlement holder in 1790 and as the Permanent Settlement Regulation did not apply to him he was not an actual proprietor within the meaning of Reg. 8 of 1793 and that Kohar Singh did not become a tenant by the operation of the Regulation. The reply to this is that Tej Singh was in fact recognised as Raja and this is proved by Hunter''s Statistical Account, Lister''s District Gazetteer and Robinson''s Report and from previous litigation ending in the judgment of the Privy Council regarding the Ramgarh estate: see Jayasri and Bodh Singh v. Maninath (2 Select Reports 116). In that judgment the history of the Ramgarh Raj is fully set out and it is clear that both Tej Singh and Maninath were recognised as the actual owners of the soil in Ramgarh.

The above finding also covers the question whether the plaintiff is entitled to the minerals. If, he is the zamindar of a permanently settled estate under the Regulations of 1793 he is the owner of the soil and whatever may be the claim of the Grown against him, it cannot be denied that as between himself and a tenure holder he has the right to the minerals unless he has expressly parted with them. The Permanent Settlement Regulations did not purport to deal with the minerals. If the zamindar had no right to the minerals before the decennial settlement the confirmation of that settlement by the permanent settlement did not create any new right to the same. Moreover so far as mineral rights are concerned it makes no difference in the present case whether the plaintiff''s predecessor was an actual proprietor in 1793 or whether he was merely a temporary lessee whose title was eventually made permanent in 1799 by contract with the East India Company. In either case I think he would be entitled to the minerals till the contrary is shown. (After considering evidence as to the plea of adverse possession and holding that it failed, his Lordship proceeded.) My findings therefore, in the case are as follows:

(1) That defendants have failed to rebut the record-of-rights and the plaintiff has established that the record-of-rights is correct, that the plaintiff is the proprietor of the mouzas in suit, that the defendants hold the same as khorposh jagirdars at a rental of Rs. 1,387-1-3 per annum and that the cesses entered in the record-of-rights are payable by the tenant defendants to the plaintiff for all the mouzas.

(2) That the aforesaid tenure is resumable upon the failure of male heirs in the male line.

(3) That it has not been established that the defendants are independent talukdars paying revenue through the plaintiff in respect of the mouzas in pargana Markacho and proprietors of a revenue free estate in respect of the mouzas in pargana Rampur.

(4) That the plaintiff is entitled to a declaration that the defendants have no right to minerals of any description within the mouzas held by them.

(5) That the plaintiff is entitled to a declaration that the leases to the defendants 4 to 8 for prospecting formica are void and inoperative.

(6) That the plaintiff is entitled (sic) permanent injunction upon the lessee defendants restraining them from prospecting minerals and opening mines and quarries.

Since the institution of this appeal defendant 1, the tenure holder, has died and his interest has devolved upon defendant 10, the son of his eldest son and on defendant 2, his younger son, and, upon defendants 11, 12, 13 and 14. Defendant 10 is represented before us by M.K.B. Dutt and by Mr. Bankim Chandra De. Defendant 2, the younger son and defendant 3, the wife of the defendant 1, and defendant 4 a lessee claiming from defendants 5 and 6 the lessees, are represented by Mr. Achalendra Nath Das and the minor heirs of the defendant 16 Bhola Charan Singh are represented by Mr. S.S. Asthana. Messrs Bimala Charan Sinha, Achalendra Nath Das and S.S. Asthana all ask that their clients should be relieved from costs. Having regard to the fact that defendants 5 and 6 committed no acts of adverse possession and derived no benefit by their prospecting work, I think they are entitled to be relieved from the costs of this litigation, but Mr. Achalendra Nath Das''s and Mr, Asthana''s and Mr. Sinha''s clients are in the same position as the other defendants who have resisted the claim and they must jointly pay the plaintiff''s costs.

The learned Counsel for the appellant has withdrawn his claim for damages and, therefore, the plaintiff''s prayer in this respect need not be considered.

The result, therefore, is that the appeal will be decreed with costs against all the appearing defendants except defendants 5 and 6. The decree of the learned Subordinate Judge will be set aside and the suit will succeed and a decree for the plaintiff will be prepared granting the declaration and injunction referred to under the headings 4, 5 and 6 of the findings recorded above. All the appearing defendants before the Subordinate Judge with the exception of defendants 5 and 6 will pay the plaintiff''s costs in the lower Court.

Kulwant Sahay, J.

I agree.