Kumar Kamakhaya Narain Singh vs Bhuvaneshwar Lal Singh and Others

Das, J.—The plaintiff is the proprietor of the Ramgarh Raj, and the suit out of which this appeal ''arises was instituted by him for the following reliefs:

(1) It may be declared that the tenure ordinarily called Pitiz lat consisting of villages in schedule A, hereto annexed is not a shamilat or 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 resumable by it on failure of the direct male line of the grantee and under certain other circumstances and the entry in the khewats is incorrect.

It is the case of the plaintiff that some time in the Sambat year 1830 (1773 A.D.) his predecessor-in-title granted Tappa Pitiz in jagir to Raja Fateh Singh, the predecessor-in-title of defendant No. 1 and that these villages are resumable on failure of the direct male line of the grantee: "according to the well-known custom prevailing in the Ramgarh and other estates in Chota Nagpur."

The defendants other than defendant No. 1 are the transferees of the right, title and interest of defendant No. 1, and they contest the suit on the ground that the Pitiz Chiefs were independent talukdars paying, no rent to the proprietor of the Ramgarh Raj, but revenue through him to the Government and that although they have lost the right to have their taluk separated from the Ramgarh Raj, their status is that which is defined in Section 14, Regulation I of 1801. The learned Subordinate Judge has found in favour of the defendants and has dismissed the suit; hence this appeal to this Court by the plaintiff.

It is not disputed that Pitiz is one of the Tappas of Perganna Chai which includes Jugodih, Paroria, Itkhori, Barsot, and Rampur. It is also not disputed that the entire Perganna Chai, together with the villages comprised in Tappa Pitiz, was settled with Raja Maninath Singh of Ramgarh, the predecessor in-title of the plaintiff by the Permanent Settlement and that, so far as the Government is concerned Pitiz is comprised within the plaintiff''s zemindari. The defendants, however, assert that though this is so, they were independent talukdars at the date of the acquisition of the diwani by the East India Company and that they have not lost their right as such as the result of the Permanent Settlement. The contention succeeded before the Settlement Officer during the recent survey and settlement operations in the Hazaribagh District and the defendants rely upon the entry in the Record of Rights which entirely supports their case as put before us in this Court.

The most authentic record of the position occupied by the Chiefs of Perganna Chai between 1719 and 1769 is to be found in the report of Raja Sitab Rai made to the East India Company. Raja Sitab Rai was one of the two Naib Diwans under the East India Company and had almost exclusive directions of all details relative to the settlement and collections under the general superintendence of the Chief of Patna: see Harrington''s Analysis, Vol. 2, pages 3 and 4. His report is, therefore, of the utmost value in ascertaining the position occupied by the Chai Chiefs at the date of the acquisition of the Diwani by the East India Company.

Although there is no reference to Pitiz in this report, there is little doubt that Raja Sitab Rai was dealing with the entire Perganna Chai. The first point to be noticed in this report is that Raja Sitab Rai is throughout referring to the Chai Chiefs either as talukdars or as zemindars. It would appear that prior to 1126 (1719) Rajah Megh Cawn of Taluk Jugodih was paying revenue direct to the Government; and that when Kamgar Khan, the Raja of Nurhud Samoy, rented "these countries" Raja Megh Cawn paid revenue to him. Dalil Singh of Ramgarh murdered Megh Cawn in 1126 (1719) and obtained possession of Taluk Jugodih and remained in possession thereof from 1126-33 (1719-26). In 1133 (1726) Runmast, the son of Megh Cawn, lodged a formal complaint to Ali Namil Khan, the aumil of Nurhud Samoy with the result that the aumil placed Runmast in possession of his taluk. It is important to remember that the aumil was an important official of the Government. He was the head of the chakla and as such represented the authority of the Government and was charged with the duty of controlling the zemindars within the chakla. I regard the event of 1726 as establishing that the Government of the day recognised Runmast as an independent proprietor and not in any way subordinate to Ramgarh. In 1(sic)39 (1732) Runmast died and his son Mahipat succeeded. Kissun Singh, the succeeding Raja of Ramgarh, again obtained possession of the taluk by treachery. Raja Mahipat thereupon applied to Sunder Singh, the Raja of Tikari for assistance. The latter sent a force and took possession of the taluk in question. It appears that Sunder Singh retained possession of the taluk for five years when Nawab Ali Vardee Khan drove him out and restored Bishun Singh of Ramgarh to possession. It appears that Bishun Singh retained possession between 1146 and 1154 (1739-47).

In 1154 (1747) Loll Cawn, son of Mahipat, made a formal complaint to Kamgar Khan who, as I have mentioned, was the Raja of Nurhud Samoy and was authorized to recover the Government dues from the Chai Chiefs. He put the Chai Chiefs, Jugodih and others in possession of their respective taluks. It will appear from this statement in the report that Bishun Singh, had obtained possession not only of Jugodih but of the entire Perganna Chai, and that in 1154 (1747) the Chai Chiefs succeeded in recovering possession of their respective taluks through Kamgar Khan. The Maharattas now took a hand in the game. Bishun Singh having been dispossessed by the agent of the Moghul Government offered a large sum of money to the Maharattas for their assistance in securing possession of Chai Perganna. The Maharattas approached Kamgar Khan and offered him Rs. 22,000 out of the large sum with which Bishun Singh had tempted them and proposed to him that Bishun Singh should-be secured in possession of Chai Perganna for as long as they, (the Maharattas) were in that part of the country and they suggested to Kamgar Khan that he might dispossess Bishun Singh after they had left the country. Kamgar Khan agreed to the proposal; and Bishun Singh of Ramgarh obtained possession of the Chai Perganna but as soon as the Mahrattas left, Kamgar Khan attacked Bishun Singh and laid waste his country. In 1157 (1750) Bishun Singh applied to Kamgar Khan for terms. There was a meeting between Kamgar Khan and Mukund Singh the brother of Bishun Singh. They agreed to divide the Perganna in this way: Kamgar Khan to have all the villages north of the river Barakar and Loll Cawn and the other Rajas together with Ramgarh to have all the villages south of the river. This arrangement was adhered to by all the parties up to 1167 (1760). In 1168 (1761) there was internal dissension in the country and Kamgar Khan joined the Sahazada against the Subedar; and, being defeated, applied to Ramgarh for protection. The Ramgarh Raja insisted that Kamgar Khan should give up Perganna Chai; and he promised in return to give him Rs. 37,000 and a place of safety. Kamgar Khan at first refused but eventually yielded and made over Perganna Chai to Ramgarh; but it is important to note that this action of Kamgar Khan did not in any way bind the Moghul Government as Kamgar Khan had become a rebel and was an actual fugitive. Raja Sahib Rai puts the matter vary clearly in the report. He says: "But Government did not approve of it as Kamgar Khan was a rebel and a fugitive." I pause here to point out that throughout the report of Sitab Rai it is assumed that the Chai Chiefs were entirely independent of Ramgarh and his comment on what Kamgar Khan did in 1761 is, in my opinion, very significant.

I have no doubt that in the view of Raja Sitab Rai who was charged with the duty of making an enquiry into these matters and reporting to the East India Company, Ramgarh acquired no title whatever to Perganna Chai as a result of what Kamgar Khan did in 1168 (1761). In 1169 (1762) Boaly Khan a cousin of Nawab Kasim Ali Khan was sent out to reduce Kamgar Khan to obedience. Loll Cawn and other zemindars of Chai represented their case to Boaly Khan who pursued Kamgar Khan and drove him to Nagpur and Palamau. Now it must be remembered that Boaly Khan represented the authority of the Moghul Government. Bishun Singh of Ramgarh fought a battle with Boaly Khan and was defeated. The zemindars of Pergauna Chai were thereupon put in possession of such portion of their territories as were to the north of the river Barkar. It appears, however that the zemindars succeeded in retaining possession of their zemindars for six months only. Boaly Khan was removed by the Government and Ramgarh again obtained possession of Chai Pergannna by bribing such of the Government officials as remained in the country, In 1170 (1763) Nawab Kasim Ali Khan sent a force under Asadullah Khan against Ramgarh. Asadullah Khan reduced the whole country to obedience and restored the zemindars of Chai Perganna to possession of their respective zemindaris. At the end of this year war broke out between the British and the Nawab. Asadullah was recalled. Kamgar Khan was also summoned by the Nawab, restored to his zemindari and despatched against the British. In 1171 (1764) Raja Makund Singh the brother of Bishun Singh who was now dead again reduced the whole of Perganna Chai to obedience after defeating Kamgar Khan. It is assumed throughout the argument of Mr. Pugh that this was the final conquest of Perganna Chai by Ramgarh Raj and that from 1171 (1764) Pergauna Chai became a Perganna of Ramgarh Raj and that whatever the status of the Chai Chiefs may have been before 1764, from 1764 they lost that status and became the vassals of Ramgarh Raj. I shall presently show that this argument cannot be advanced on the report of Raja Sitab Raj.

The report proceeds to say that Kamgar Khan was subsequently reconciled to the British by whom he was directed to restore "Raja Shunat Singh etc." Now Raja Shunat Singh was one of the zemindars of Chai: see the report, part 3, page 2, line 20. It is clear, therefore, that by "Shunat Singh, etc" is meant Rajah Shunat Singh and the other Chai Chiefs. The report does not specifically mention whether Kamgar Khan succeeded in carrying out the direction of the British but the narration of subsequent events leaves no doubt that he did. Kamgar Khan died in 1171 (1764) and was succeeded by Waris Ali Khan. In 1173 (1766) the servants of Waris Ali "drove off all the cattle of those Pergannas on account of their not having paid any revenue for three years and laid the lands waste".

The question is, who was in occupation of these Pergannas at the time. If it could be shown that the Chai Chiefs were in occupation, then it must follow that they had been restored to possession by Kamgar Khan in 1171 (1764): and there must be an end to the argument that Chai Perganna was finally conquered by Ramgarh in 1171 (1764). What follows in the report makes the position perfectly clear. It appears that "for this reason" Raja Mukund Singh of Ramgarh made an offer to Ashruff Cawn, the aumil of Nurhud Samoy, to rent the entire Khurrukdaa country and invited him to fix a revenue "to be paid in future in lieu of these Pergannas." It is clear that afresh offer could not have come from Ramgarh Raja, if he was already in possession of Chai Perganna. There is no difficulty in understanding the sequence of events. The Chiefs of Chai had been restored to possession of their respective taluks by Kamgar Khan. They defaulted in paying the Government revenue and Raja Waris Ali Khan exercised his constitutional right "to drive off all the cattle of those Pergannas." Raja Mukund Singh of Ramgarh saw his opportunity and applied to the aumil for settlement. The aumil refused. Thereupon Raja Mukund Singh made a direct application to Raja Waris Ali Khan. The report states that "the Raja seeing that it was not a time to make a composition on equal terms and that whatever he got was pure gain, received kabuliyat of R3. 27,000 for the three past years".

But it is obvious that this act of Raja Waris Ali Khan was not accepted by the Government, if it had any foundation in fact, for Raja Sitab Rai makes it quite clear that "this is not signed by the Chowdhury, nor Canon goes, nor is it entered in our registers, therefore, not authenticated and only heresy".

There is little doubt, therefore, that Ramgarh must have been dispossessed by Kamgar Khan in 1171 (1764) and that the Raja was making every effort to get back Perganna Chai. He took advantage of the default made by the Chai Chiefs in paying Government revenue and applied to the aumil for settlement, On his application being refused by the aumil he applied direct to Waris Ali Khan. Waris Ali Khan took Rs. 27,000 from him, but nothing came of it. Mukund Singh again applied to the new aumil Zulfikar Ali who was sympathetic; but "the application was rejected at Court." Failing to get a settlement, Mukund Singh attacked Waris Ali and was repulsed. It is not necessary to deal further with this report which in my opinion establishes completely that at no time was the title of Ramgarh Raj to Perganna Chai recognized by the Moghul Government. No doubt from time to time Ramgarh by treachery succeeded in obtaining possession of Perganna Chai; but the report, in my opinion, makes it perfectly clear that the Mogul Government restored the Chai Chiefs to possession whenever they were dispossessed by Ramgarh. It is impossible, in my opinion, to say that Ramgarh finally conquered Chai Perganna in 1763. The fact that Raja Mukund Singh applied to two aumlis successively for settlement of Parganna Chai with him establishes beyond doubt that the "conquest" of 1171 (1764) was not a final one, and that in the critical year 1173 (1765-66), the Chai Chiefs were in possession of their respective taluks.

There is definite evidence in the record of this case that Pitiz proprietor was paying revenue direct to the Moghul Government in 1763 and 1764. Exhibit A is a kabuliyat executed by Raja Fateh Singh (the predecessor of defendant No. 1) to Asadullah Khan the representative of the Moghul Government in 1763. The terms of the kabuliyat are somewhat important and they ought to be set out in full. They are as follows:

I am Raja Fateh Singh, taluqdar of Tappa Pitiz Amla, Perganna Chai, District and Province Bihar, Rupees eighty one, half whereof is Rs. 40-8-0 each rupee weighing 10 1/4 meshan, has been fixed as annual jama for 1170 Fasli by Lala Darab Narayan, Amin and Naib Faujdar of high dignity and lofty position, Saiyid Asadullah Khan Bahadur. I accept the said jama of my own free will and accord and make a solemn declaration to the effect that I will deposit (the same) annually in the Sarkar''s treasury, season after season and instalment after instalment. I will not put forward any pretext or plea in respect thereof.

It will be noticed that Raja Fateh Singh describes himself as the talukdar of Tappa Pitiz and he enters into an agreement with the representative of the Moghul Government to deposit Rs. 81 annually "in the Sarkar''s treasury." It will appear on a reference to Raja Sitab Rai''s report that it was in 1170 (1763) that Nawab Kasim Ali. Khan sent Asadullah to reduce Ramgarh to subjection and to restore Loll Cawn and the other zemindars of Perganna Chai to possession of their respective zemindari. Exhibit A (1) is a kabuliyat of 1764 executed by Raja Fateh Singh in favour of Kamgar Khan as the Naib Faujdar of Nawab Zaffar Ali Khan by which the former agreed to pay Rs. 81 to the Sarkar year after year. The kabuliyat of 1764, in my opinion, completely destroys the plaintiff''s case as to the final conquest of Parganna Chai in 1764. It may be urged that the conquest may have taken place after the execution of the kebala but the argument would be wholly inadmissible-in view of the report of Raja Sitab Rai. The sequence of events is clearly stated in that report. Asadullah Khan was re-called about the end of 1170 (1763-64). Raja Mukund Singh then reduced Perganna Chai to obedience in 1171 (1764). It was after this event that Kamgar was put in possession of his zemindari by the British and was commissioned by the latter to restore "Raja Shunat Singh and others" to their respective zemindaris. The kabuliyat of 1764 was executed in favour of Kamgar Khan as the Naib Faujdar of Nawab Zafar Ali Khan obviously after the Chai Chiefs had been restored to possession by Kamgar Khan. I should mention that Mr. Pugh made an alternative argument before us. He contended that the kabuliyat of 1764 must be a forgery, since the Chai Perganna had already been conquered. The argument, in my opinion, begs the whole question which is the subject-matter of debate before us, namely: Was Chai Perganna finally conquered in 1764? On the report of Raja Sitab Rai only one answer is possible, and the kabuliyat of 1764 corroborates the report on this point in a remarkable manner.

There is no clear evidence as to the payment of revenue by the Pitiz Chiefs between 1764 and 1773; but there is a definite assertion by Raja Mani Lal the great grandson of Raja Fateh Singh in a suit between Maharaja Sidhnath Singh of Ramgarh and him that rent up to Sambat year 1828 (1771) was paid by his predecessors in-title to Kamgar Khan. I shall have occasion to refer to this litigation; but I may at once say that the judgment in this suit was delivered by the Sudder Diwani Adalut on 18th September, 1833. There is no reason to disbelieve this assertion, especially as it is not the case of the plaintiff that there was any relationship between Ramgar and Pitiz before 1773, the plaintiff''s case being that Maharaja Tej Singh made a jagir grant to Fateh Singh in the year 1773.

I now come to the most important document in the case. Exhibit-B is an ekrarnama executed by Raja Tej Singh of Ramgarh in favour of Raja Fateh Singh of Pitiz on 5th Kartic Badi 1830, corresponding with 5th October, 1773. The terms of the ekrarnama are as follows;

Executed by Maharaja Shri Tej Singh, Bahadur, zemindar of Perganna Ramgarh. Raja Shri Fateh Singh used to pay to Raja Kamdar Khan Rs. 81 (Rupees eighty-one only) in Benares coins on account of hakami malguzari in respect of his milkiat Tuppa Mot (sic) Pitij in Parganna Maheir. Upon this I entered into an agreement giving (taking?) tulisi leaves and (torn) reduce to writing that (he should pay the hakami malguzari Rs. 81 (Rupees eighty-one only) through me year after year and that the milkiat (would belong) to the Raja. In this connexion neither I nor my descendants shall ever put forward any claim to the land and should (blank) any zemindar claim the malguzari at any time I shall settle (the claim). The Raja shall have nothing to do with it. For this purpose I executed this ekrarnama.

In my opinion this document establishes definitely that Rs. 81 which Raja Fateh Singh agreed to pay to Raj a Tej Singh (and which the defendant still pays the plaintiff) was the hakami malguzari, or in other words, revenue payable to the Government. There is a definite admission by Mahraja Tej Singh that Tappa Pitiz was the milkiat of Raja Fateh Singh and he entered into a distinct covenant to the effect that "neither I nor my descendants shall ever put forward any claim to the land." Now it will be remembered that Pitiz used to pay Rs. 81 as Government revenue to the Moghuls; under the arrangement between Maharaja Tej Singh and Fateh Singh, Pitiz continues to pay Rs. 81 to the Government as revenue through Ramgarh estate. It was contended before us by Mr. Pugh that this document is a forgery; but it is impossible to give effect to this contention. It was produced in the litigation between the parties nearly a century ago, and was apparently accepted as a genuine document. Exhibit 1 upon which the plaintiff relies, appears to be a patta granted by Raja Tej Singh to Fateh Singh in October, 1773. Nothing turns upon this document.

It appears that notwithstanding the ekrarnama of 5th October, 1773, there was an attempt made by the servants of the Ramgarh Raj to make illegal exactions from Pitiz and Ex. C is a letter written by Maharaja Tej Singh to Fateh Singh on 3rd Baisakh Badi 1831 Sambat corresponding with 27th April, 1774. I should mention that in the paper-book the corresponding English date is mentioned as 18th April, 1775. This encouraged Mr. Pugh to argue before us that this letter must be a forgery since there is some evidence that Tej Singh died in 1774. There is no doubt, however, that 3rd Baisakh Badi 1831 corresponds to 27th April, 1774 and not to 18th April, 1775. There is, therefore, no foundation for the argument that this letter is a forgery. I may mention that this letter was also produced in the previous litigation between the parties. In this letter Maharaja Tej Singh again asserts that "the milikiat belongs to you" and he says that he has sent his sanad to the Chaudhuri prohibiting him from causing any interference. This letter, in my opinion, completely destroys the plaintiff''s case as to a jagir grant in 1773. It is incapable of any explanation except on the hypothesis that the Pitiz: Chiefs were the actual proprietors of the soil. It is for this reason that Mr. Pugh took us into history to prove that Maharaja Tej Singh was actually dead when he is alleged to have written this letter The argument was founded in the confidant belief that the corresponding English date of 3rd Baisakh Badi 1831 was correctly given in the paper-book. The mistake was pointed out, and the argument died a natural death.

The plaintiff relies upon certain subsequent kabuliyats alleged to have been executed by the predecessors-in-title of the defendant in favour of the predecessors-in-title of the plaintiff. One of these kabuliyats Ex. 2, is headed "Jagirdari"; and by this document the Pitiz Chief agreed to pay, not only Rs. 81 as rent to Ramgarh, but also Rs. 300 as nazarana. I shall presently show that the kabuliyats upon which the plaintiff relies were regarded as suspicious documents by the Court in the previous litigation between the parties to which I have already referred; but assuming that Ex. 2 is a genuine document, I have no doubt whatever that the word "jagirdari" was not in the document when it was in fast executed. It is clearly in different ink and is obviously a later introduction into the document, I should mention that in the previous litigation it was not the case of the plaintiff (the predecessor-in-title of the present plaintiff) that the Chai Chief held a jagirdari tenure under Ramgarh. It was his case that the then defendant had an ordinary mustajiri lease; and it is most unlikely that the plaintiff should have produced a document suggesting that the defendant had a jagir grant from him. In the next place, I am definitely of opinion that nothing turns upon how a document is headed if we know what the exact position was between the parties. It is well-settled that title cannot pass by admission or even by relinquishment; and it is difficult to understand how the antecedent rights of the Pitiz Chiefs as the actual proprietors of the soil could be affected by describing them as jagirdars in subsequent transactions. If I am right in my view that, at the date of the acquisition of the Dewani by the Company, the Pitiz Chiefs were the actual proprietors of the soil, then (in my judgment) their rights as actual proprietors subsisted, notwithstanding that they may have been compelled to accept jagirdari pattas from Ramgarh. An admission may affect the question of onus of proof; but it does not operate as a conveyance. As 1 shall presently show, the Bengal regulations strictly preserved and carefully guarded the rights of the actual proprietors of the soil. So far as the other point is concerned, namely, the exaction of nazarana, from the Pitiz Chiefs it was clearly an illegal exaction, as was found in the litigation between the parties a century ago,

Before proceeding further I should like to deal with one point which was made by Mr. Pugh before us. It was contended that as the revenue payable by Ramgarh Raj in respect of Tappa Pitiz is Rs. 69 8 and the rent payable by the defendant to the plaintiff is Rs. 81 what is payable by Pitiz to Ramgarh is not revenue but rent; and that there is a clear profit which accrues to the Ramgarh Raj which is explainable only on the hypothesis that there is a tenure between Ramgarh Raj and Pitiz. In support of his contention Mr. Pugh relies upon the sarsikan paper of Tappa Pitiz of 1793-94. This document undoubtedly shows that whereas the jama receivable by Ramgarh from Pitiz is Rs. 81 the sarsikan jama sudder payable by Ramgarh to the Government in respect of Tappa Pitiz is Rs. 69-8-0. But there is a clear answer to this argument. It is beyond doubt that the Decennial Settlement with Raja Mani Nath. Singh of Ramgarh was a block settlement that is to say, in assessing the Government revenue payable by Ramgarh, the Government did not proceed on a calculation as to the assets of each unit comprised within the Ramgarh Raj, but assessed the entire Raj as a block This was admitted by Mr. Pugh before us; but if there should be any doubt on this point, I should like to refer to paras 65 and 66 of Mr. Sifton''s Final Report on the Survey and Settlement Operations is the District of Hazaribagh. It appears that Mr. Leslie, the Collector, gave his opinion that Rs. 40,000 was the utmost that Ramgarh could yield; and Government revenue was fixed at that figure "after suitable deductions from the conversion of it into sicca rupee and the resuming of Syer by Government," The Raja did make a return at the time of the Decennial Settlement; but revenue was not calculated on the basis of that return but was fixed at the round figure of Rs. 40,000.

Now, if this be so, then it is idle to say that the Government revenue payable in respect of Tappa Pitiz is Rs. 69-8-0 a year. The Government did not assess any revenue on Tappa Pitiz, though it did assess a revenue on the zemindari of Ramgarh. What then is the explanation of the sarsikan paper? u/s 43 of the amended Code of Regulations relative to the Decennial Settlement, and approved by the Governor-General in Council on 23rd November, 1791, "all zamindars, talukdars or others assessed by Government in the course of the first year" were required "to distribute the total assessment of their zemindaris, talukdaris or other lands, on the several villages contained therein, equally and impartially, according to the rents derived therefrom respectively, and to deliver a record of such distribution in the course of the three first months of the ensuing year, and successively for each year": see Colebrooke''s Supplement, page 317.

The sarsikan papers upon which the plaintiff relies were "delivered" by the then Raja of Ramgarh in pursuance of Section 43 of the Regulation to which I have just referred and constitute a record of the distributions of the total assessment "on the several villages contained therein" by the proprietor himself, and not by the Government. The object with which Section 43 was enacted is clearly indicated in Section 46 of the Regulation. Such distribution "is intended only to be a standard for fixing the revenue of Government on lands transferred by sale or otherwise without which, neither the actual proprietor, nor the purchaser, can form a determinate idea of its value."

It is obvious, therefore, that the allocation of Rs. 69 8-0 to Pitiz does not establish that the Government had assessed Rs. 69-8-0 as revenue payable in respect of Pitiz. Section 43 of the Regulation of the 23rd November, 1791, constitutes a clear answer to another argument advanced before us by Mr. Pugh. I take the argument itself from the notes supplied by Mr. Pugh to me. It is as follows: "If it is said that Rs. 69-8-0 was a mere allocation by the Ramgarh Raj, that does not assist the defendant because if there is a block settlement with Ramgarh for a lump sum, and no separate assessment of Pitiz, Pitiz must be a subordinate tenure because there is no process by which the revenue could be sub-divided at the instance of Pitiz unless there had been a separate assessment originally."

It is precisely to meet this difficulty, as e. 46 clearly says, that the proprietor was required to distribute the total assessment "on the several villages contained therein". If Pitiz had applied for separation under Regulation VIII of 1793, then the Government would have proceeded on the sarsikan paper "as a standard for fixing the revenue of Government".

I now come to the litigation between Ramgarh Raj and Tappa Pitiz some time in 1815. Maharaja Sidhnath of Ramgarh was the plaintiff in that suit which was for recovery of "arrears of thika rent amounting to Rs. 1,712-4-13-12 kauris sicca in respect of 12 villages comprised in Tappa Pitiz appertaining to Ramgarh from Sambat 1863 to Sambat 1868"

The plaintiff alleged that Raja Hiralal Singh of Tappa Pitiz had a ticca lease from him at an annual jama of Rs. 195. It will be noticed that the case now made, namely that the defendant held under a jagirdari tenure from Ramgarh Raj was not set up in the litigation of 1815. The defendant on the other hand alleged "that the villages comprised in Tappa Pitiz have for a long time been the proprietary right of this defendant''s ancestor and this defendant" and "that the defendant is not at all a mustajir or ticcadar of the said Tappa."

He further alleged that for hundreds of years the rent of the said villages has been Rs. 81 annually," and that when the administration of the hilly tracts passed into the hands of the East India Company, Maharaja Tej Singh, the plaintiff''s great-grandfather, became the Raja of Perganna Ramgarh, etc.," and that "at that time the great-grandfather of the plaintiff said to Raja Fateh Singh, the defendant''s grandfather, that the area of Tappa Pitiz was intermingled with the area which belonged to him, that he (Raja Fateh Singh) should pay the rent thereof along with his zemindari and that he (Tej Sing) was going to execute an agreement and letter to the effect that in future he and his heirs would not claim any proprietary interest in respect of the villages comprised in the said tappa".

It will be noticed that the defendant set up in the litigation of 1815 the same defence which he is setting up in this litigation. Both parties relied on documentary evidence most of which has been produced in this case. The Court came to the conclusion that Tappa Pitiz was the milkiat of the defendant''s ancestor and of the defendant and constituted the sikmi zemindari of the defendant at a mokarrari rent of Rs. 81. With reference to the documents upon which the plaintiff relied showing payments of nazarana by the defendant to the plaintiff, the Court said as follows:

Moreover out of the documents filed by the defendant''s Pleaders, the ekrarnama and the mukarrari pattas were executed by the great-grand father, grand-father and father of the plaintiff, out of which two mokarrari pattas marked 55 and 56 have been attested by three of the plaintiff''s witnesses. In the said deeds except the taking of the annual rent there is no mention of nazarana. As a matter of fact the production of the said ekranrama, mukarrari pattas, etc., on behalf of the defendants raises suspicion that the kabuliyats and wasilbaqi accounts filed by the Pleaders of the plaintiff are manufactured ones. Further be it noted that under the mukarrari patta filed by the defendant''s Pleader save and except Rs. 81 as annual rent nothing is deemed and found to be in the shape of nazarana.

(I ought to point out that the translation of this passage in the paper-book is not accurate. At our request the official translator has furnished us with another translation from which the passage above set out is taken.) There is no doubt whatever that in the litigation of 1815 the Diwani Adalut of Ramgarh found first, that the 12 villages of Tappa Pitiz constituted the milkiat of the defendant at a mukarrari rent of Rs. 81; and secondly, that the kabuliyats upon which the plaintiff relied were suspicious. I may point out that it is upon these kabuliyats that the plaintiff also relies in this case. The judgment of the Diwani Adalut of Ramgarh was upheld on appeal by the Court of Appeal at Azimabad on 10th September 1818.

Maharaja Sidhnath then filed another suit against Raja Mani Lal of Pitiz for recovery of direct possession of the villages comprised in Tappa Pitiz on the allegation that the latter was merely a mustajir under Ramgarh Raj. Raja Mani Lal contested the suit on precisely the same ground which the defendants are putting forward in this case. The Sudder Diwani Adalut at Calcutta delivered judgment on 18th September, 1833, by which it held that although the disputed property was settled by the Government with the Ramgarh Raj.

"Yet this is not favourable for the appellant" (namely the Ramgarh Raj) for the reason that it has been proved from the records and judgment of the suit instituted by Dewan Sahib Ram, guardian of the appellant, as well as from the records of this suit, especially from the patta dated 15th Katrie 1835 Sambat and the patta executed in Asin 1845 Sambat which have been filed by the respondent and have been proved by the evidence of his witnesses that the disputed property has been the shikmi taluka of the ancestors of the respondent and that the respondent and his ancestors have always been holding possession thereon on payment of its mukarrari rent of Rs. 81. Therefore, the entry of the name of the appellant''s father in the Government settlement register cannot extinguish the rights of the respondent''s ancestors in respect of the disputed property and the same goes to show that the disputed property is not fit to go out of the zemindari of the appellant.

If I may say so the exact position arising from the different regulations to which I shall presently refer is very correctly and concisely stated in this passage of the judgment of Sudder Diwani Adalut. Mr. Pugh relies upon the statement in the judgment to the effect that the disputed property is not fit to go out of the zemindari of the appellant and he contends that the decision (which, according to him must operate as res judicata) is to the effect that Pitiz is a dependent taluk and, therefore, subordinate to Ramgarh. But the real position is stated perhaps a little more accurately later on in the judgment in these words,

"Therefore the (mere) entry of the name of the appellant''s father in the Government settlement register cannot extinguish the rights of the respondent''s ancestors in respect of the disputed property and the same (simply) goes to show that the disputed property has no status to be excluded from the elaqa of the appellant''s zemindari.

As I have already said, the real position as I understood it, is stated very clearly and concisely in this part of the judgment. What the Sudder Diwani Adalut held was that although the defendant had lost the right to claim separation from Ramgarh and must continue to pay revenue through Ramgarh in all other respects he was in the same position as an actual proprietor of the soil, It was definitely found in that litigation that the defendant had a proprietary title to Tappa Pitiz and that the "disputed property has been the shikmi taluq of the ancestor of the respondent."

It appears to me that having regard to these decisions it is idle to contend that the defendant holds under a jagirdari lease from Ramgarh Raj.

I now proceed to deal with Mr. Pagh''s argument that, having regard to what has admittedly happened in this case the defendant is not entitled to be regarded as the actual proprietor of the lands. The status of a talukdar has been subject of careful enquiry by the East India Company. It is not necessary for me to enter upon an elaborate discussion as to the position occupied by a talukdar before the Permanent Settlement. Lord Cornwallis considered that the talukdar had in general the same right in the soil as the zemindar being merely smaller proprietors paying the revenue through the larger proprietors, the zemindars. See Firminger''s Edition of the 5th Report, Vol. 1, page 617). Mr. Shore''s account of the taluqdari tenure is as follows:

"The word ''talukdar'' means the holder or possessor of a dependency.... The principal distinction in the rights of talukdars arises from the privilege which many possess of paying their rents immediately at the khalsa or exchequer instead of to the zemindars from whose authority they are wholly exempt being immediately subordinate to that of the Government. Talukdars of this description differ but little from zemindars except in the limited extent of territorial jurisdiction;" see Harrington''s Analysis. Vol. III page 247.

Mr. Phillips in his celebrated work on Land Tenure of Lower Bengal admits that the origin of the talukdar is even more obscure than that of the zemindar, but he proceeds to say as follows:

"One class is said to have arisen chiefly from the ancient Rajas who were allowed to retain their possession, engaging to pay the revenue demanded by the State, but made subject to the control of the aumils in matters with which the State was concerned: see page 149.

This being the position, the East India Company had to consider whether the talukdar were entitled to a settlement on their own account independent of the zemindars. They decided, as a matter of policy, that settlement should be concluded with the actual proprietors of the soil, of whatever denomination, whether zemindar, talukdar or choudiris; but then arose the question, which of the talukdars were to be considered the actual proprietors of the soil. They dealt with the question in Section 5, Regulation VIII, 1793 which provided that the talukdars, to be considered the actual proprietors of the soil are, first those who purchased their lands by private or at public sale or obtained them by gift from the zemindar to whom they now pay the revenue assessed upon their taluks or from his ancestors, subject to the payment of the established dues of Government, and who received deeds of sale, or gift of such land, from the zemindar, or sannads from the khalsa, making over to them his proprietary rights therein; second, those whose taluks were formed before the zemindar to whom they now pay their revenue or his ancestors, succeeded to the zemindari, third, those whose lands were never the property of the zemindar to whom they now pay their revenue or his ancestor, and fourth, those who have succeeded to taluks of the nature of those described by right of purchase, gift or inheritance, from the former proprietor of such taluks. u/s 7 talukdars whose taluks were held under writings or sannads from zemindars which did not expressly transfer the property in the soil, but only entitled the talukdar to possession so long as he continued to discharge the rent or perform the conditions stipulated therein, were to be considered as leaseholders only, not actual proprietors of the soil, and consequently were not to be entitled to be rendered independent of the zemindar. u/s 11, the Collector had the power to enquire into the question whether the nature of the tenure of a particular talukdar was such as to entitle him to separation under the rules contained in s.5 and to separate him from the jurisdiction of the zemindar if he appeared to be an actual proprietor of the soil within the meaning of Section 5. A decision of the Collector u/s 11 did not conclude the parties, for u/s 12, the party adversely effected by the order of the Collector had the right to agitate the question in the Civil Court.

Now in my opinion the Pitiz Chiefs were clearly the actual proprietors of soil within meaning of Section 5, Regulation VIII of 1793, and were consequently entitled to claim a separation from Ramgarh. The antecedent history of Perganna Chai, as disclosed in the report of Raja Sitab Rai shows that the Chai taluks were paying revenue direct to the Moghul Government and that their taluqs were in existence before they commenced to pay the revenue through Ramgarh. They are, therefore, in the position of taluqdars whose taluks were formed before the zemindar... to whom they now pay their revenue".

The same report establishes that the Chai Chiefs were talukdars.

"the lands comprised in whose taluks were never the property of the zemindar... to whom they now pay their revenue.

If there should be any doubt as to this on the report of Raja Sitab Rai, the ekrarnama, Ex.;B, executed by Maharaja Tej Singh on 5th October, 1773, and the letter (Ex. G) written by Maharaja Tej Singh on 27th April, 1774, put the matter beyond controversy.

I will now deal with the arguments advanced by Mr. Pugh on behalf of the Ramgarh Raj. It was contended that Ramgarh Raja was practically an independent Chief and that there was no serious attempt by the Nawab Nazim to reduce Ramgarh or to make it pay tribute and that any idea of independent talukdars dealing direct with the Government, to quote Mr. Pugh''s words, "does not fit in with the scheme of things". But the early history of Hazaribagh District is involved in an obscurity from which, owing to the loss of records at the time of the Mutiny and the absence of any trustworthy sources of information, it is never likely to emerge; sea Hunter''s Statistical Account, Vol. 16, page 18. I can find no evidence, either in the record of this suit, or in the historical works, that Ramgarh was in the position of an independent chief. This however, is certain that up to the time of Raja Maninath Singh (with whom the Permanent Settlement was concluded in 1790). the Rajas of Ramgarh did homage to the Maharaja of Chota Nagpur and received the tilak, or mark of investiture on the forehead from the Chieftain''s great toe: Hunter''s Statistical Account, pages 18 and 118. This is also certain that when Tej Singh was placed by the English in possession of Ramgarh, ha was only styled mustajir or farmer, (Hunter''s Statistical Account, page 118). Now, if this be so, the idea of Ramgarh being an independent Chief must be rejected as fantastic. The only authentic history of Ramgarh is to be found in the report of Raja Sitab Rai, which does not take us to a period earlier than 1719. That report establishes that, although there were armed incursions into Chai Perganna by Ramgarh Raja from time to time, the title of the Chai Chiefs as proprietors of the land was always recognized by the Moghul Government, the only constitutional authority in the country before the advent of the British.

It was then contended that the fact that Perganna Chai was permanently settled by the British Government with Ramgarh. Raja concluded the matter, and reliance was placed upon the following passage in the judgment of the late Chief Justice of this Court in what is known as the Jugodih case [ Kamakhya Narain Singh Vs. Jawahir Khan and Others, :]

It should be remembered that the scheme of the settlement regulations was to ascertain the rights of the parties as they existed at the date of the acquisition of the Diwani in 1765 and to settle the land with those who were the actual proprietors at that time, ignoring any earlier titles unless they still subsisted.

With all respect, I am unable to agree with this view, Any student of the history of the Land Tenure in Bengal will have no difficulty in appreciating that the words "proprietors of the soil," as used in the Bengal Code have a technical signification. The East India Company made a vigorous and determined search to discover that mythical person, "the proprietor of the soil," and, in the end, produced a literature as interesting as instructive. But the search failed to achieve any definite result, because it was discovered that the right to the soil itself was unappropriated, unless it could be said that it resided in the general community. There were really three claimants to the title: the sovereign the zemindar, and the cultivator. But from the Hindu times'', the sovereign has never claimed anything more than a definite share in the produce of every bigah of land in other words, he never claimed a right to the soil itself. This position was recognized by the East India Company in the celebrated preamble to Regulation XIX of 1793. No doubt there are recitals in various Regulations to the effect that the Government "has reserved to itself and has exercised the actual proprietary right of lands of every description" but in a case, which was heard by the Judicial Committee on appeal from Madras and in which it was argued on behalf of the Collector that the Government had reserved to itself and bad, by legislative enactments asserted its right to all lands of every description, the Lords of the Judicial Committee pointed out that those recitals evidently have reference to the same usage, viz., the custom of dispossessing zemindaris and taking their zemindaris into the khas possession of Government for the purpose of realizing the public revenue from time to time assessed upon them: see Collector of Trichinopoly v. Lekkamani 1 I.A. 282 : 21 W.R. 358 : 14 B.L.R. 115 : 3 Sar. P.C.J. 318 (P.C.). (3) 3 W.R. Act X Rul 29 : B.L.R. Sup. Vol. 20.

So far as the zemindar is concerned--and that is the question which we have to consider in this appeal, the historical position occupied by him was elaborately discussed in the celebrated case known as the Great Rent case [Thakooranee Dossee v. Bisheshour Mookerji (3)] which was heard by fourteen Judges of the Calcutta High Court. It was ascertained that by the terms of the Permanent Settlement, the zemindars were not made absolute and sole owners of the soil, but that there were only transferred to them all the rights of Government, viz., the right of a certain proportion of the produce of every bigha held by the ryots, together with the right to profit by future increase of cultivation and the cultivation of more valuable articles of produce. It was pointed out that "the notion of an absolute estate in land is as alien from the regulation law as it is from the old Hindu and Muhammadan Law of the country".

The case of the cultivator does not call for any discussion in this case.

Now, if this be so, the words, "proprietors of land," could not have been used by the framers of the regulations in the sense in which they would naturally be understood. This was the view which was taken by the Judicial Committee in the case to which I have already referred, the case of Collector of Trichinopoly v. Lakkamani 1 I.A. 282 : 21 W.R. 358 : 14 B.L.R. 115 : 3 Sar. P.C.J. 318 (P.C.). (3) 3 W.R. Act X Rul 29 : B.L.R. Sup. 20. In dealing with this point, their Lordships said as follows:

The words ''proprietor of land'' as used both in the Bengal Code of 1793 and in the Madras Code of 1882, have a technical signification (see the definition in Bengal Regulation VIII, 1793, Sections 5, 6, 7 and Regulation XXVII, 1802, Madras Code, Section 2). They refer to ''zemindars, independent talukdars, and others who pay the revenue assessed upon their estates immediately to Government'' and the words ''proprietary possession'' as used in the recital of Regulation XXV of 1802, must also be read in a similar sense as meaning the possession and rights of a proprietor in the technical sense in which that word is used, viz., the person who pays the revenue immediately to Government.

Nor would it be correct to say that any question of title was decided as the result of Permanent Settlement. A similar question fell to be considered by the Judicial Committee in Juggut Mohini Dossee v. Sokheemoney Dossee 14 M.I.A. 289 : 17 W.R. 41 : 10 B.L.R. 19 : 2 Suth. P.C.J. 512 : 3 Sar. P.C.J. 23 : 20 E.R. 795. In dealing with it their Lordships said as follows:

The principal claim of Sokhemoney Dossee to hold the resumed lands free from this trust on the grounds advanced by her, is destitute entirely of legal foundation. She did not rest her title so much on the operation of the second deed of partition as a revocation of the first, as on the effect of the resumption proceedings and the settlement for revenue with her. Such a settlement does not establish proprietary right in the land, but is made with Government as to their claim to their kheraj, or revenue. The settlement and the possession under it being evidence of a right to possession, are also so far evidence of proprietary right, but do not] necessarily constitute it. A fortiori, they could not divest and destroy trusts to which the settlor was subject. The claim supposes a mere settlement for revenue to have the same effect in clearing away preceding titles which a sale under the revenue laws works; but antecedent trusts have, in certain cases, been impressed by the decisions of Courts of Justice, including this Tribunal on estates, acquired even under these revenue sales (see the cases referred to in Mr. Justice Macpherson''s Work on Mortgages, page 86, Edition 5). Sokhemoney Dassee could not get rid of her sebait title and possession by the machinery of this settlement, though it was in terms made with her as a private person.

The whole question is discussed with great clearness and precision by Mr. Phillips in his work on Land Tenures of Lower Bengal from which it would be profitable to set out the following passages:

"And the cases now seem to have decided that a settlement with a person under the Bengal system does not establish, in the person settled with, a right to the land if he did not already possess it; but that a settlement is an arrangement made by that person with the Government with respect to the revenue only. This indeed appears from the regulations themselves which while directing in the regulations for the Decennial Settlement, that the settlement should be with the ''actual proprietors'' recognizes that the actual possessor and the person, therefore, actually settled with may not be the proprietor, and that consequently the fact of settlement with a person under the regulations does not conclude the question of proprietorship as between that person and the true proprietor. Thus, both as regards the rights of the ryots, and as regards the claims of other persons to be settled with, the rights of the actual possessor are subject to question and are not concluded or rendered absolute by the fact of settlement. Now the Regulations for the Decennial Settlement prescribe that the settlement is to be made with the actual proprietors of the soil of whatever denomination, whether zemindars, talukdars or chowdries; and probably this enumeration may be considered as recognizing that zemindars, talukdars and chowdries are" actual proprietors of the soil" and the preamble of Regulation II of 1793 recites that ''the property in the soil has been declared to be vested in the land-holders, which was never before formally declared''. This declaration is stated to have been made as a part of the provisions for permanency of holding, the revenue being also fixed with the same view. But these expressions do not define the extent of the rights of the land-holders or zemindars, and as we have already come to the conclusion that in a certain sense and for the purposes of settlement, which was the matter then in hand they had acquired certain restricted proprietary rights in the revenue which might fairly be considered rights in the produce of the soil sand in the soil itself it seems unnecessary to infer that any greater right was intended to be given them by a mere enumeration and description of the classes to be settled with and by the recital of such settlement": See pages 316-18.)

It was next contended that whatever the position may have been at one time in the events which have happened, the defendant is not entitled to claim the status of an independent talukdar. It was pointed out that if the predecessor-in-title of the defendant had the status of an independent talukdar, it was open to him under Regulation VIII of 1793 to claim separation from Ramgarh and that not having put forward any claim in that behalf his position must be that of a lease-holder u/s 7 of that Regulation. But Regulation VIII of 1793 did not provide a period of limitation within which a claim had to be lodged before the Collector and it is well known that that regulation was construed so as to entitle independent talukdars who did not apply for separation at the time of the Decennial Settlement to be separated on their application at any subsequent period. The necessity for providing a period of limitation engaged the attention of the authorities and by Section 14 of Regulation I, 1801, the Government dealt with the necessity for the security of purchasers at the public sale that some period should be fixed for the operation of the above rules to prevent their being at all times liable to deprivation of a part of their purchase. That section provides as follows:

It is hereby required that all talukdars who, as proprietors of the land 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 zemindaris 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 of 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 operation 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 zemindaris 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 this Regulation.

Now it seems to me that the penally and the only penalty imposed by the Regulation on the talukdar who omitted to apply for the separation of his taluk within the period of limitation was that such talukdar forfeited all title to separation under Regulation VIII of 1793. It is quite true that the Regulation lays down that "such taluks shall thereafter be considered as dependent taluks," but it leaves no doubt as to the meaning to be attached to the term "dependent taluk," for the words that follow are, "not entitled to be separated from the zemindari to which they may be attached," and puts the matter beyond controversy by adding, "though in other respects the rights of the talukdars are not meant to be in any degree affected by this Regulation."

In support of his contention that a talukdar not applying for separation within the period of limitation specified in Section 14, Regulation I, 1801 is to be regarded as lease-holder within the meaning of that term as used in Regulation VIII of 1793, Mr. Pugh relied upon the following passages from the judgment of the late Chief Justice of this Court in what is known as the Kamakhya Narain Singh Vs. Jawahir Khan and Others, .

The effect of this section appears to me to be that the holders of the Jugodih 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, Regulation VIII of I793. 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.

With all respect I am unable to agree with this view. It must be remembered that the terms "independent talukdar" and "dependent talukdar" do not occur in Sections 5 and 7 of the Regulation; but those sections do make a distinction between talukdars to be considered the actual proprietors of the lands and those to be considered as lease-holders only. Now if this be so, then it is merely a play on words to say that "they cannot be both dependent and independent," What we have really to consider is, can they be regarded as the actual proprietors of the lands who have forfeited all title to separation under Regulation VIII, 1793. For myself I can see no difficulty in answering the question in the affirmative. The term dependent taluks" occurs in Section 14, Regulation I, 1801; and in my opinion, the clearest interpretation of what is meant by "dependent taluks" in that section is to be found, as I have already indicated, in the words that follow, namely, "taluks not entitled to be separated from the zemindaris 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 this Regulation."

It must be remembered that the talukdar whose right is being considered u/s 14, Regulation 1, 1801 must be assumed to be an actual proprietor of the lands subject to such penalty as has been imposed under that section. If this be so, then some explanation is due as to what the Legislature meant by saying that in other respects the rights of such talukdars are not meant to be in any degree affected by the Regulation. I find it impossible to hold that the Regulation does not mean what it says, namely, a talukdar omitting to apply for separation within the time limited for this purpose shall be considered a dependent talukdar in the sense that his taluk shall not be entitled to be separated from the zemindaris to which it may be attached, though in other respects his rights as actual proprietor of the lands are not meant to be in any degree affected by the Regulation. In regard to the other point, namely "the highest form of tenure at that time was a jagir resumable on the death of the heirs male of the body of the grantee" all that I can say is that in this case the defendants do not rely upon a grant from the Ramgarh Raj. They insist that they were actual proprietors of the lands directly under the Moghul Government and they contend that the kabuliyats upon which the plaintiff is relying in this case stand on no higher footing than an undertaking by them to pay the revenue through Ramgarh.

It was then contended by Mr. Pugh that we are bound by the decision of this Court in the Kamakhya Narain Singh Vs. Jawahir Khan and Others, and that we are not at liberty to differ from the decision in that case without referring the question for the decision of a Full Bench. In my opinion the argument is wholly unsustainable. It is quite true that Jugodih is one of the Tappas of Perganna Chai and the report of Raja Sitab Rai specifically deals with Jugodih, but that case was decided on its own facts and, although there are various observations in the decision of that case with which I do not agree, it is impossible for me say to that that case was wrongly decided for the simple reason that I do not know what evidence was adduced in that case.

I have considered the whole matter with as much care as I can bestow on it and in my opinion the plaintiff has failed to rebut the presumption of the correctness of the entry in the Record of Rights. On the other hand, the documentary evidence leaves no doubt in my mind that the Pitiz Chiefs were the "actual proprietors of the lands"within the meaning of Section 5, Regulation VIII, 1793 and that although they have lost the right to claim separation from Ramgarh and for that reason must be considered as depended talukdars they are still the actual proprietors of the lands and cannot be considered as lease-holders. I would, therefore, dismiss this appeal with costs.

Adami, J.

I agree.