Kumar Kamakhya Narayan Singh vs Surendra Karan Deo and Others

Dawson-Miller, C.J.—This is an appeal from a decision of the Additional Subordinate Judge of Hazaribagh, dated 23rd February 1922. The plaintiff, who is a ward of Court suing through the manager of his estate, is the proprietor of the Ramgarh Raj. Defendant 1 is the holder of certain villages comprised within the plaintiff''s zamindari and commonly known as Barsote Lat. The other defendants are persons holding various interests in those villages or some of them derived from defendant 1 or his predecessors.

During the last survey and settlement operations in the Hazaribagh District where the property is situated, the interest held by defendant 1 was recorded in the record-of-rights, finally published in 1914, as a shamilat taluk held under Ramgarh Raj and as nonresumable. By the present suit the plaintiff seeks a declaration that the tenure known as Barsote Lat consisting of the villages, 129 in number, set out in schedule A of the plaint is not a shamilat or shikmi taluk of the Ramgarh estate and is not nonresumable as recorded in the khewats. He further seeks a declaration that it is an ordinary jagir under the Ramgarh Raj and is resumable by the Raja of Ramgarh on failure of the direct male line of-the grantee, in this case, Raja Prithi Karan Deo. It is admitted that the rule of primogeniture prevails in the families of both the plaintiff and defendant 1 and that females do not succeed to the estate.

Three written statements have been filed in the suit, one on behalf of defendant 1 and other on behalf of defendant 2 who has an interest in one of the mouzas and the third on behalf of defendants 12 to 15 and 16 to 21. They raise for all practical purposes the same defence.

Although it is denied in the written statements that Barsote forms any part of the Ramgarh Raj, it is conclusively proved that Barsote as it then existed was settled with Raja Maninath Singh of Ramgarh by the decennial settlement, made with him in 1790 and earlier settlements.

The present case and two others in which the Raja of Ramgarh is claiming a similar declaration and which were tried and determined by the same Judge, were argued in appeal before us at the same time, and we reserved judgment in the three cases until we had heard the arguments in each. In the Jagodih case Kamakhya Narain Singh Vs. Jawahir Khan and Others, in which we have just delivered judgment we arrived at the conclusion that that tenure was jagir grant resumable on the failure of the male lineal descendants of the grantee, and much that was said in that judgment is applicable to the presents case. As there are features in each of these cases which are not identical it becomes necessary to state the facts relied upon by the respective parties.

It is the plaintiff''s case that this property was settled with Prithi Karan the ancestor of defendant 1 in the latter half of 18th century but that the kabuliyat given by the grantee no longer exists. Certain jamabandi papers or awarza of villages included in Barsote for the year 1756, 1762, 1778, 1780, 1785, 1814 and 1851 to 1865 have been produced, and if these are accepted they shew that in the years named Prithi Karan Deo and his ancestors were paying rent to the Ramgarh Raja for some villages in Barsote. In the earlier ones up to 1778 the only village mentioned as held by Prithi Karan is Debo, the rent payable being apparently a nominal sum of Rs. 2 or Rs. 3 and the produce estimated at Rs. 40 to Rs. 50. In that of 1780 he is entered as the holder of Barsote Pargana, and the holding is described as jagirdari, the rent being Rs. 21-1-6. In 1785 the rents appears to have jumped to Rs. 283-12-0. In 1814 it is Rs. 281-8-6. It is the plaintiff''s case that Debo, or as, it is subsequently called Lat Debo, was another name for the Barsote villages held by Prithi Karan Deo and his successors. How the rent came to be increased in 1785 or how many villages were included within the tenure at that time, there is nothing to show. The first detailed list of villages included in this tenure appears in the jamabandi papers of 1861 where 112 villages are shown. The number of villages has now increased to 129. There is no conclusive evidence one way or the other to show whether Debo mentioned in the early jamabandi papers before 1780 really represents the nucleus of the villages now included in the tenure. The learned Subordinate Judge, has refused to accept these documents as of any value, partly on the ground that they are merely ex parte statements and partly on the ground that Barsote could not have been in possession of the Raj of Ramgarh before 1760, and therefore the document of 1756 must be spurious document. His reason for arriving at this conclusion is that in Major Rennell''s map of the district, published in 1779, Barsote is shown as lying to the north of the Barakar river, and the territory north of the Barakar river as appears from Sitab Rai''s report, was at that time in possession of Kamdar Khan, whereas the Raja of Ramgarh only had the territory to the south. In all the more recent maps however the course of the Barakar river is very different from that shown in Rennell''s map and Barsote undoubtedly lies to the south of the Barakar as it is now known to run.

The learned Judge considered that both maps were accurate and that the discrepancy might be reconciled on the assumption that since Major Rennell''s map was published in 1779 the Barakar river has changed its course. It is not a question, however, of the river deviating a few miles one way or the other from its original course as sometimes happens through the effects of erosion in the rivers in the plains of India. If Major Rennell''s map is accurate then not only must the Barakar river in 1779 have flowed uphill across a range of mountains, but for a distance of about 25 miles from the spot where it rises, according to Rennell''s map, as far as a point somewhere to the northward of Etchauk, as shown on the map, it must at some later time unknown, have begun to flow in the opposite direction apparently along pretty nearly the same channel. The learned Judge thinks its present course may be accounted for by some earthquake disturbances but an upheaval of such magnitude could hardly have taken place unnoticed, and there is no record of any sort to show that a disturbance of the earth''s surface on such a gigantic scale ever took place. Major Rennell was appointed Surveyor General of Bengal in 1764 and he left India in 1776, three years before his map was published and as pointed out by Mr. Lister in the Bihar Orissa District Gazetter (Hazaribagh) at p. 138, Ramgarh was not reduced to submission by the British until 1772 and Kharagdiha two years later, so the time at Major Rennell''s disposal for the collection of the materials on which his map is based must have been very short. The truth would appear to be that part of the Barakar river from its source as shown on Rennell''s map to a spot to the northward of Etchauk did exist in Major Rennell''s time, but it flowed in the opposite direction rising at a spot somewhere north of Etchauk, and did not cross what are shown as the Chyrah hills on the map. That part of the river to the north of the Chyrah hills shown on the map was also probably in existence in Major Rennell''s time and is still shown, in later maps as a tributary of the Barakar flowing from the Chyrah hills, which form the watershed, to the northward until it joins the Barakar river. I think it must be assumed that Barsote then, as now, lay to the south of the Barakar river and was part of the country held by the Rajah of Ramgarh in 1756.

With regard to the probative value of these documents, as a rule ex parte statements of this nature should be treated on the same basis as books of account and regarded not as a primary proof, but merely as corroboration of other direct evidence, but where such documents relate to distant times, and no direct evidence of the matters mentioned there is any longer available I think their value assumes greater proportions, and if they indicate a state of affairs which may be presumed as not unlikely to have happened then I think they may be taken into account and relied upon with more certainty. I do not think that any hard and fast rules can be laid down as to the value to be attached to documents of this nature of an ancient date. In estimating their value it is important to consider what took place later. On the one hand we find assertions made by the plaintiff''s predecessors from the year 1780 (see Ex. 21-1) and persisted in up to the present time that Raja Prithi Karan and his descendants held a jagir under the Ramgarh Raj. We find, on the other hand, that the defendant''s predecessors have from time to time since the year 1841 at latest, asserted a larger interest in their tenure, but without success. There is a document, however, dated 1st Asarh Sudi Sambat 1870 (29th June 1813) which seems to me to show conclusively that the interest held by the defendants and their predecessors was not a proprietary interest but a leasehold only. This is a kabuliyat (Ex. 23) executed by Raja Joymangal Karan Deo in favour of the then Raja of Ramgarh which states:

I owe Rs. 281-8-6 in kaldar (milled edge coin) on account of rent of the villages to the landlord for the year 1869 and so I execute this kabuliyat and do declare that I shall pay off the same according to ray promise made herein without any objection.

The rent was to be paid by instalments details of which are given and the document continues:

Should I default payment of any instalment I shall pay interest thereon as prescribed by law and should I fail to pay the rent I shall be deprived of my land (jagah).

This document was challenged as spurious but, as the learned Judge pointed out, the grounds upon which its authenticity is disputed fail, and he considers that it is not open to suspicion. It has been exhibited in Court on more than one occasion in disputes between the predecessors of the present parties and there seems no reason for rejecting it. It is the defendant''s contention that this document is not inconsistent with the case made by him that he is an independent talukdar paying revenue to the Ramgarh Raj and that he comes within the category mentioned in Section 6, Reg. 8 of 1793, and he relies upon a Sanad granted to his ancestor Prithi Karan Deo in the year 1776 A.D. purporting to be a grant made in his favour by the Raja of Ramgarh of that date, Pareshnath Singh. It is marked Ex. U in the record. There are two translations of it taken from different copies. It states:

This patta is executed in 1183 to the following effect. Mouza Barsote, and a few other mouzas, appertaining to Tappa Barsote, Pargana Champa, Chakla Ramgarh, which have been in your possession from before, shall continue to be in your direst possession. For the same you shall, according to instalments (fixed), pay a rent of Rs. 151 per annum, at the rate prevailing in the Chakla. You shall as usual be in possession of all the lands that are in your possession from before excepting the Debottar and Brahmottar lands and peacefully cultivate them. You won''t have to pay for any loss etc., nor shall you be able to take (the same) from the tenants. Dated 24th Shravan 1833.

It is contended that this document is a title-deed of the kind mentioned in Section 6, Regulation 8 of 1793, and that it merely provides for paying the Government revenue through Ramgarh: and the fact that the word jagir is not mentioned in it is relied upon. This document is the basis of the defendant''s claim. It is referred to in the mulki form (Ex. B) prepared by Ridhnath Karan Deo in 1843 in which he states:

The Rajaship of the said Parganas (Barsote) was conferred by the East India Company upon Maharaja Tej Singh Bahadur. Then from 1819 to 1832 (1762 to 1775) my ancestor Raja Prithi Karan Deo paid the annual tent Rs. 151 through Maharaja Tej Singh and on his death through Pareshnath Singh Bahadur. Thereafter in Sambat 1833 Mr. Grant Heatley came to make settlement of Pargana Ramgarh and on finding on enquiry that Pargana Barsote was the old zamindari of my ancestor he allowed the villages in pargana Barsote held in possession by my ancestor to remain under Government collection and granted to my ancestor a patta dated 24th Sawan Sambat 1833 corresponding to 1183 F., bearing the signature of Maharaja Pareshnath Singh at a fixed rent of Rs. 151.

The second copy of this document purports to bear the signature of Maharaja Pareshnath Singh and this is presumably the document referred to as the grant made by Mr. Grant Heatley, It however, does not bear his signature. The document was before the Court in 1861 in a suit brought by the then Raja of Ramgarh against the defendant''s predecessor Ram Karan Deo claiming rent at the rate named in the kabuliyat of 1813, namely 281 sicca rupees which was equal to 300 rupees, omitting fractions, in the prevailing currency. The document of 1776 was relied upon as showing that the rent was less than that claimed but it was not accepted and the rent was decreed at the rate claimed in accordance with the kabuliyat of 1813, This judgment was affirmed on appeal to the Judicial Commissioner of Chota Nagpur in 1862 and in his judgment he describes the defendant''s tenure as jagir. A second appeal to the High Court was also dismissed in 1863 the Judges remarking that satisfactory reasons had been assigned for regarding the patta and receipts relied on by the defendant in the suit as not genuine. The learned Judge in the present case has not placed reliance upon this document and I see no reason why we should take a different view.

But even assuming that a grant was made in 1776 at a rent of Rs. 151, subsequent events seem to show quite clearly that this was not a direction made with the sanction of Government that the defendant''s ancestors should pay their revenue as proprietors of a taluk through the zamindar of Ramgarh, for the rent or revenue of such talukdars cannot under the Regulation be enhanced. (See Section 51 of Regn. 8 of 1793). Nevertheless we find that in 1813, assuming the earlier grant to be valid, a fresh engagement at a higher rent was entered into. Moreover as pointed out by Mr. Amir Ali in delivering the judgment of the Board in the Bundu case, Srinath Rai v. Pratap Udai Nath Sahi Deo AIR 1923 P.C. 217 one would expect to find some evidence to show that the tenure-holder took steps for separation of his jama, or had been paying revenue, making use only of the zamindar''s sherista for its transmission to the Government treasury, or had he occupied the status which is claimed for him (that of an independent talukdar) there would have been an undoubted record of the fact in the Govt. revenue register. Moreover I apprehend that if the defendant were in the position of an independent talukdar merely paying his quota of the Government revenue through the Ramgarh Raja his estate would not revert to the Ramgarh Raj on default of payment, but the kabuliyat of 1813 expressly recognizes the right of the Ramgarh Raja to resume on default of payment of the rent. Many other rent suits have been brought by the plaintiffs or his predecessors against the defendant and his predecessors between the years 1858 and 1913 and in these the defendant''s tenure has always been described by the plaintiff as jagir held under him, although this fact has not been admitted by the defendant in these suits. In 1868 Ram Karan Deo the then holder of the Barsote tenure in giving evidence in a suit tried before the Acting Deputy Commissioner admitted that he paid his rent to the Maharaja of Ichak (Ramgarh). This was relied upon by the learned Counsel for the appellant as a direct admission of the obligation to pay rent and not revenue; but the matter now in issue was not a question for consideration in that case, and I hardly think that the use of the word rent on that occasion can be taken as conclusive of the nature and incidents of the tenure which he held. The terms rent and revenue are frequently used as synonymous Even in the Regulation up to 1793 these words are sometimes loosely used, and I do not think any reliance can be placed upon the use of the word rent on that occasion.

It is contended, however, that the rent suit of 1861 is conclusive on that matter and that by reason of that decision it is now res judicata between the parties. The case put forward by the plaintiff then was that a sum of Rs. 300 per annum was due as rent under a settlement made by the Maharaja of Ramgarh, and that the tenure was given to the defendants ancestors as a mashruti jagir on payment of rent at the rate of Rupees 281-8-1. The defendant''s case was that it was not a jagir but that it was held under a patta granted by Mr. Grant Heatley in 1776 signed by him and by Raja Pareshnath Singh at a rent of Rs. 151 and that the property was in possession of the defendant''s ancestors before the advent of British rule. The defendant''s case must be taken either as an admission that rent in the ordinary sense was payable but at a smaller rate than that claimed by the plaintiff in that suit, or an assertion that the sum payable, namely, Rs. 151 was revenue under a patta granted with the sanction of Government. Assuming it was the former the admission I think must be taken as binding. Assuming it was the latter the finding of the appellate Court which was affirmed by the High Court was that the defendant held a jagir within the plaintiff''s zemindari at a rent of Rs. 300 and I do not think the matter can again be reopened.

Assuming, however, that this decision is not conclusive the situation appears to me to be similar to that in the Jagodih case just decided. The defendant''s ancestor not having applied for separation under the settlement Regulations of 1793 and 1801 cannot have a larger interest than that of a defendant talukdar and must be regarded as a leaseholder. He therefore, holds under the Ramgarh Raja, and it is for him to show that he has a larger estate than that of a jagirdar the widest form of tenure known in Ramgarh and this he has failed to do. I am not unmindful that the record-of-rights creates a presumption in his favour, but once it is shown that he has no proprietary interest then the foundation upon which the record-of-rights is based disappears. In my opinion the appeal should be allowed with costs against, the respondents who have appeared, the decree of the learned Subordinate Judge should be set aside and in lieu thereof a decree should be passed in favour of the appellant declaring that Barsote Lat consisting of the villages mentioned in Schedule A of the plaint is a jagir tenure held under the Ramgarh Raj and is resumable on failure of the direct male line of Raja Prithi Karan and that is not a non-resumable shamilat taluk as recorded in the record-of-rights. The plaintiff is entitled to his costs in the trial Court against the contesting defendants in that Court.

Mullick, J.

The lands now in suit lie within a wild and hilly tract which formed the south-west frontier of the Subha of Bihar in the 18th century. The Government was in the hands of the Nawab Nazim, who resided at Murshidabad in Bengal, and at Patna, which was then called Azimabad; he was represented by a Governor and Deputy Governor. From the report of Maharaja Shitab Roy, the Deputy Governor at Bihar, written on 16th September 1771 and from other historical records it appears that the first invasion of the Muhammadans into these territories was in 1539 in the time of the Emperor Akbar. In 1640 Hemat Singh, the Chief of Ramgarh made an assessment of Parganas Chai, Champa and Barsote and other parganas and included them within his zamindari. In 1659 Prince Muhammad, the son of Aurangzeb, took an army through the Jharkhud, by which name the whole of the hilly country between Bihar and Orissa was known and attacked the town of Monghyr where Shah Suja had retired. About 1670 the Chief of Ramgarh to escape the Muhammadans transferred his residence from Badam to Ramgarh 30 miles east separated by a very difficult stretch of country, and later the seat of the Raja was transferred to Padma. In or about 1720 Dalil Singh, one of the descendants of Hemat Singh, conquered the taluk of Jagodih and eight other taluks within pargana Chai and Champa and possessed himself of the country to the north of the river Barakar. Dalil Singh died in 1724 and was succeeded by his grandson Bishun Singh who ruled till 1762. It is admitted that Dalil Singh took possession of a number of villages belonging to the Chief of Barsote and included them within his zamindari. Upon the death of Bishun Singh his brother Mukund Singh succeeded and ruled till 1772 when he was deposed for rebellion by the East India Company and was succeeded by Taj Singh. The Chiefs of Chai and Champa among which were included the Taluk Barsote, appear to have been constantly at war with the Chief of Ramgarh and to have assisted Sunder Singh the Raja of Tikari, in keeping possession of the Ramgarh estate for five years from 1734 to 1739. Nawab Ali Verdy Khan, the Subedar at Patna, thereafter, attacked Sunder Singh and released Bishun Singh who remained in possession from 1735 to 1747.

The Talukdars next approached Kamdar Khan, the proprietor of Narhat Semoy, a pargana in the north-east of Zillah Bihar, who was the renter of that part of the country under the Moghuls and he attacked Bishun Singh and restored the talukdars to their lands. Upon the invasion of the country by the Maharattahs, who were marching eastward from the Grand Trunk road, Bishun Singh by means of a large bribe to the Maharattahs and to Makdar Khan obtained possession of the country of the talukdars; but he was again attacked by Kamdar Khan and between 1752 and 1760 Kamdar Khan kept possession of the country north of the Barakar while to Bishun Singh and the talukdars he ceded the country to the south. In 1761 Kamdar Khan rebelled against the Subedar, was defeated and applied to the Ramgarh Chief for protection and eventually consented to restore the country to the north of the Barakar to the Chief of Ramgarh. In 1762 the Talukdars of Chai and Champa with the assistance of Bu Ali Khan, the cousin of Nawab Kasim Ali, attacked Kamdar Khan, and Kamdar Khan fled towards Nagpur and Bishun Singh was defeated in battle and the talukdars were put in possession of the country to the north of the Barakar for six months while Bu Ali Khan himself retained the country to the south for Nawab Nazim. Bishun Singh thereafter paid a tribute of Rs. 55,000 and was restored to the country to the south of the Barakar; and six months later he attacked and drove out the taluk dars from their possessions in the north. In 1763 Bishun Singh was again attacked by the Nawab''s forces and the talukdars were put in possession. In 1764 war broke out between the East India Company and the Nawab Nazim and the Nawab Nazim''s forces were recalled, and Mukund Singh who had succeeded on Bishun Singh''s death at the end of 1763 again attacked the talukdars and reduced them into submission. An attempt was made by Kamdar Khan to restore the talukdars of Chai and Champa to power, but Kamdar Khan died in 1764 and his nephew Waris Ali Khun who succeeded him was unable to dislodge Mukund Singh and finally took a kabuliyat from him for Rs. 27,000 on account of the arrears for three years. In 1765 the East India Company took over the Dewany of Bengal, Bihar and Orissa from the Nawab Nazim and Mukund Singh having failed to pay his balances and rebelled against the company he was attacked by the British forces under Captain Camac and captured and deprived of his zemindari. He was succeeded by Tej Singh, a member of a collateral branch, who on of his death in 1773 was succeeded by his son Pares Nath. Pares Nath died in 1784, and was succeeded by Maninath Singh with whom a decennial settlement was made in 1790 which was made permanent in 1799. Maninath was succeeded in 1812, by his son Sidhnath Singh who died in 1822, Sidhnath was succeeded by his eldest son Lakshminath, who died in 1842, and was succeeded by his brother Sambhunath. Ramnath Singh the brother of Sambhunath succeeded in 1862 and died in 1866. Next after some litigation Ram Narain Singh was declared to be the owner of the estate. The plaintiff Kamakhya Narain Singh is the great-grandson of Ram Narain Singh, and is the present proprietor of this estate.

The aboriginal tribes having broken out in rebellion in 1831 zilla Ramgarh was reconstituted in 1833, and styled the District of Hazaribagh, and was included within the south west frontier agency of which the chief executive authority was the agent to the Governor-General. In 1855 the agency was converted into Commissionership of which the executive head was called the Commissioner of the Chota Nagpur Division.

In 1766 Mr. Grant Heatley estimated the gross collections of Ramgarh at Rs. 1,53,000. In 1780 Captain Camac was succeeded by Mr. Chapman, who was the first civil administrator. Mr. Chapman was succeeded by Mr. Dallas who in 1782 caused the revenue to be collected by a "sazawal." In 1790 the Collector Mr. Leslie effected the decennial settlement on behalf of the East India Company with Maninath Singh, which was made permanent in 1799.

The Talukdars of Barsote claim descent from one Sham Karan Deo from whom defendant 1, Surendra Karan Deo, is said to be fifty-eighth in descent.

The plaintiff prays for a declaration that the defendant in question is a jagirdar whose tenure is resumable on failure of male issue in the direct line of the grantee and alleges that the cause of action arose upon the publication in 1913 and 1914 of a record-of-rights containing an entry that three villages in Taluk Barsote constitute a shikmi or shamilat nonresumable tenure in the estate of the plaintiff. The defendants other than the members of the Barsote family are transferees. The contesting respondent in this appeal is defendant 1. (After considering the evidence his Lordship proceeded). Then we come to the kabuliyat of 1813 [Exs. 23 to 23(f)] by which Jai Mangal Karan Deo of Barsote Khas contracted with Sidhnath Singh, the son of Maninath, to pay a rental of Rs. 281-8-6. The document runs as follows:

I am Raja Jai Mangal Karan Deo of Baraote Khas District Ramgath. I owe Rs. 281-8-6 in Kaldar (milled edge coin) on account of rent of the villages to the landlord for 1869, and so I execute this kabuliyat at Kachari and do declare that I shall pay off the same according to my promise made herein without any objection.

Then follow the details of instalments, and then the document continues as follows:

Should I default payment of any instalment, I shall pay interest thereon as prescribed by law and should I fail to pay the rent I shall be deprived of my land. Dated 1st Ashar, Sudi, Sambat 1870, at Itchak Kachhari.

The Awarza of 1814 corroborates this document, and since then there has been no variation in the rental which in company''s rupees amounted to Rs. 303. For the next 35 years there is no evidence of default on the part of the tenant but in 1858 the proprietor of Ramgarh Maharaja Shambhu Nath Singh was obliged to sue for the rents of 1819 to 1857, and on 8th June 1861, he obtained a decree in the Court of Lt. Col. Thomas Simpson against Raja Ram Karan Deo at the kabuliyat rate. The defendant''s defence was that the tenure was not a Mashruti jagir (conditional jagir) as alleged by the plaintiff and that by a patta dated 24th Sawan 1833, Mr, Grant Heatley on behalf of himself and Raja Pareshnath Singh had fixed the rent at Rs. 151 sicca. The Court''s finding was that the istemrari mukarrari patta dated 5th August 1760, set up by the defendant did not contract for a fixed perpetual rent that in fact that long after 1790 a fresh settlement was made with Raja Maninath Singh and that the Kabuliyat of 1813 for Rs. 281-8-3 was binding. The observation with regard to an istemrari mukarrari settlement is not understood; possibly a case to that effect was made in the course of argument but the material part of the decision is that it was found that Rs. 281-8-3 had been the rental since 1813.

The next question is whether this contract was for rent or revenue. On behalf of the defendant it is argued that the kabuliyat did not establish the relationship of landlord and tenant and that it was merely a contract for payment of revenue which the Chief of Barsote had agreed to pay to the Government through the proprietor of Ramgarh. In my opinion the document is clearly an acknowledgement of liability for rent. The executant admits his liability to ejectment in case of default, and the consideration for the contract is the use and occupation, of land. There was no reference at all to revenue and having regard to the contemporary legislation, I do not think there can be any doubt that the contract was for the payment of rent in the modern sense and in the sense in which the East India Company understood it when framing Regulation 8,1793. There is, moreover, no evidence at all that any contract was made with Government by the Chief of Barsote for the payment of Rs. 281 as revenue through the proprietor of Ramgarh. It is true that the Maharaja of Chota Nagpur used to pay revenue through this Maharaja, and that he succeeded in separating himself in or about 1771; but although the Chief of Barsote applied for separation his request was refused. In this connexion it is to be observed that though Mr. Lister at p. 149 of his District Gazetteer for Hazaribagh states that the Chief of Barsote succeeded in saving his property from being merged into Ramgarh in the same way as the Chief of Jagodih, the statement is not supported by evidence. The fact is that under the Permanent Settlement Regulation of 1793, the Chief of Barsote was a dependent talukdar who was not entitled to separation, and that, he fell into the category of a tenure holder the incidents of whose tenancy have now to be determined.

The learned Subordinate Judge has discussed the evidence regarding the genealogy of the Chief of Barsote and he finds that his family is older than that of the Chief of Ramgarh. Apart from the fact that the evidence upon which the learned Judge relies, is very doubtful and that there is evidence of at least equal reliability to show that the Ramgarh Raj dates back to the grant to Baghdeo and Singhdeo in 1380, I think that the comparative antiquity of the two dynasties is scarcely material. The point is that though there is no evidence that Hemat Singh exercised any dominion in 1640, Mukund Singh certainly in 1764 conquered the territories of the Barsote Chief and reduced him to a state of complete subjection and that whatever claims to independence he had before that date were finally extinguished and that thereafter he was permitted to remain in possession of a certain number of villages upon condition of service. From the evidence that 33 mouzas yielding an income of Rs. 5,979 were annexed to the Ramgarh Raj and that the income of the remaining 112 mouzas was only Rs. 2,000 (see Terij Goshwara of 1842 Exs. 37, 37(a) and 38, and the mulki form submitted by the Barsote Chief) it would appear that about two-thirds of the taluk had been annexed and it is impossible to believe that any claim for independence could have for a moment been entertained thereafter by the proprietor of Ramgarh.

In my opinion, therefore, the plaintiff has succeeded in showing that the entry that Barsote is a shamilat taluk in the sense that it was dependent taluk paying revenue through the proprietor of Ramgarh at the time of the permanent settlement is incorrect.

The next question is whether the plaintiff has shown that the entry that it is nonresumable is also incorrect. Now with regard to this entry, the onue was upon the talukdar before the settlement officer who has obviously based his decision on the fact that the Chief of Barsote was an actual proprietor in 1893. But the patta of 1770 given to Ramgarh showing that Barsote was one of the Parganas assessed does not lead to any such conclusion. He has not shown that he was in the same category as Chota Nagpur, and there is no reliable evidence that he was an actual proprietor. If the term "shamilat taluk" means an ordinary dependent taluk and not a taluk paying revenue to the Government through the superior taluk, then the plaintiff does not quarrel with the entry, but we know the sense in which the settlement officer has used the term and the plaintiff is entitled to a declaration that his entry is incorrect.

On behalf of the respondents it is urged that it is the practice of the Ramgarh Raj, that whenever a jagir is created the title-deed mentions the nature of the tenure, but the argument is scarcely material as in the case of Barsote the jagir was created without any_ title deed.

It is also contended that when one jagirdar dies a wahguzasht sanad is always issued to his successor and although there have been at least four successions and since Prithi Karan, who is alleged by the plaintiff to have been the original grantee, no wahguzhast Sanad is forthcoming.

Although a number of kabuliyats filed in this case show that the nature of the tenure is mentioned in the title-deed and although wahguzasht sanads are ordinarily issued it does not appear that the practice of specifying the nature of the tenure in the title-deed is always uniform and as regards wahguzasht sanad, in their absence, though a point in the Talukdar''s favour, is not sufficient to establish his case.

Then it is next pointed out that between 1790 and 1813 there is no document showing the existence of any jagir, and that it is mentioned for the first time in the plaintiff''s awarzas of 1814. This is true but in 1843 the Awarza Ex. 21(f) mentions a jagir held at Rs. 281-8-9. In 1859 there is a public assertion of a jagirdari tenure in a return submitted by Shambhunath Singh of Ramgarh. He was called upon to file a list of title holders in his zamindari and stated that the title of Raja was conferred upon the Chief of Barsote by Maharaja Dalil Singh on the occasion of a marriage in the family of the Raja of Barsote, and also that Barsote was his jagirdar. In the same year in compliance with an order from the Superintendent of Surveys Shambhunath filed a parganawari list in which Lat Debo Baraote is entered as a tenure of which Raja Ram Karan Deo was the jagirdar. In the rent suit in 1858 the tenure was described as Mashruti jagir. It is contended that these assertions are not sufficient to show that the tenure was a jagir resumable on failure of male descendants. On the other hand, the onus of showing before the Settlement Officer what the incidents of tenure are was upon the tenure holder the land being within the ambit of the Mal lands of the permanently settled estate and no question of a lakheraj being raised by either party, and in my opinion the Settlement Officer should have held that the onus had not been discharged. In the present suit the plaintiff has shown that the Talukdar was never an actual proprietor and it is not the practice of the Ramgarh Raj to create taluks enjoying an estate of absolute inheritance and it therefore follows that the tenure must be resumable. Now the highest form of tenure known in the Ramgarh state is a jagir resumble upon failure of male heirs in the direct line of the grantee and the plaintiff is willing that this status should be accorded to the tenant. I think, therefore, that it should be declared that the entry in the record-of-rights is incorrect and that the tenure is a jagir resumable upon the conditions above mentioned.

The learned Subordinate Judge has found the issues on limitation against the plaintiff. He finds the tenure holder having since 29th July 1843, when he filed a mulki form before the Collector, asserted that he held mouza Barsote and other mouzas at a rental of Rs. 151 as a dependent Talukdar entitled to be recognized as independent at the time of Permanent Settlement, he has acquired by adverse possession the status of non resumability. The answer to this is that it is not open to a tenant to prescribe against his landlord. The tenure holder has never surrendered possession. It may be conceded that the principle that a tenant cannot question the title of his landlord applies only to cases where he has been put to possession by the landlord and that a case of mere attornment after previous possession as a proprietor would not raise any estoppel; but in this case the evidence is that Mukund Singh conquered Barsote and that at the time of the Permanent Settlement and also at the time of the Kabuliyat of 1813 whatever proprietary right the Chief of Barsote may have had before the conquest had been completely extinguished. The tenancy has never been determined since the talukdar was put in possession in 1764 and his successors cannot deny their landlord''s title.

The other form in which the plea of limitation is put is that upon the death of each jagirdar his successor became a trespasser. The answer to this is that such an adverse possession has never been asserted and that the proprietor has accepted as his tenant the successor of the deceased jagirdar on the ground that by custom the tenure has become hereditary. The case of trespass has not been raised by any party and we ought not to be asked to inquire into it. We cannot presume an unlawful origin to the title of the defendants unless compelled to do so.

Finally it may be asked what evidence is there of the custom of tail male. The answer is that it has been held that jagirs in the Ramgarh estate in lieu of service are subject to this custom and even as istemrari mokrari tenure has been held to be subject to it. See Ram Narain Singh v. Chota Nagpur Banking Association [1916] 43 Cal. 332 and the Privy Council judgment in Srinath Rai v. Pratap Udai Nath Shai AIR 1923 P.C. 217. The duties of jagirdar in the wild and hilly country in suit were to protect the roads and passes and it is consistent with the probabilities as the plaintiff suggests that the original grantee after the conquest of 1764 was given back a portion of his zemindari on condition of jagirdari service.

The result is that the decree of the learned Subordinate Judge must be set aside and the suit decreed.

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