Laxmanrao Madhavrao Jahagirdar vs Shriniwas Lingo Nadgir and others

Sir John Wallis, J.

This is an appeal from a judgment and decree of the High Court of Bombay reversing the decree of the District Judge of Dharwar and dismissing the suit brought by the plain tiff Laxmanrao, Jahagirdar of Hebli, for declarations; (1) that the plaintiff and defendants 12 and 13 are, and that the nadgirs are not, watandar patils and kulkarnis of Hebli village; (2) that the lands measuring 120 mars entered in the watan register of the village prepared under Bombay Act 3 of 1874 are not watan lands; (3) for a cancellation of the register; (4) for declaration that these lands were not liable for the remunera tion of patils and kulkarnis; and (5) for the recovery of Rs. 969-0-8 levied from the plaintiff under Bombay Act 3 of 1874.

The plaint alleged that the grant to their ancestors in 1748 of the village included 200 mars of land assigned for the remuneration of the patil kulkarni and nadgir offices in the village, and also the offices themselves, that as the defen dants' ancestors who were the previous owners of those watans had failed to pay the judi and raised a rebellion, their watans had been resumed long before 1723, and so the watani nature of the lands came to an end; that ever since the establishment of the British Government the plaintiff'' family had been in possession of all the said 200 mars, except 7� mars and 3 bighas and except 22 mars of which they had been deprived in a civil suit filed by defendants 7 to 11 in 1867, and also had been in possession of all patilki and kulkarniki rights. They alleged that they were watandars of patilki and kulkarniki under the sanad of 1748, and, if not, were entitled to their offices by virtue of long possession. The proceedings of Government recognizing the family of defendants 2 to 11 as watandars, and framing the watan register accordingly, and imposing a contribu tion on the plaintiff under Act 3 of 1874, were accordingly wrongful.

In para. 15 it was pleaded that the 200 mars ware not now watan land

the reason being that in the year 1858 the Inam Commissioner decided that the whole of the village of Hebli, including the land measuring 200 mars, is not watan, but that it is another kind of estate, and on date the 6th March 1863, Government passed final orders to that effect in resolution bearing number 676. Although Jahagirdars and Nadgir (meaning the family of defendants 2 to 11) were (the only) parties to that matter (i. e. inquiry) (still) the Government, Jahagirdars and Nadgirs are bound by this decision and the decision passed by the Settlement Officer in the year 1864 that only 7� mars and 3 bighas of land is liable to settlement.

The cause of action, it was alleged, arose on the 7th October 1908, when Government passed resolution 10129 deciding that the nadgirs were watandars depriving the plaintiff and defen dants 12 and 13 of their rights, and miking the lands in possession of the plaintiff'' family liable for the remuneration of the patil and kulkarni although they were not watani lands.

The first defendant, the Secretary of State in Council, filed a separate written statement pleading that the suit was barred by Bombay Act 10 of 1876, S. 4 (a), Bombay Act 3 of 1874, S. 25, and Arts. 14, 120 and 124, Limitation Act. He also pleaded that the family of defendants 2 to 11 were the real watan patils, kulkarnis and nadgirs, and that the 200 mars of land were kadim inam, of which 120 were assigned for patilki and kulkarniki, and the rest for the nadgir office. They had been in the possession of the jahagirdars, under kamavishi or temporary arrangement, because the watandars were unable to pay judi, and not because the Jahagir dars were patils, kulkarnis or nadgirs. The Jahagirdars had admitted this and were estopped from questioning it. Farther the orders passed by Govern ment were legal and proper. The allega tions in para. 15 of the plaint were not admitted, and the plaintiff was put to strict proof of them.

As regards the Nadgirs, defendants 2 to 11, the principal written statement was filed by defendant 4. Defendants 2 and 3 and 5 to 11 filed written statements to the same effect, defendants 5 to 11 contending further that the suit was bad for misjoindar of defendants 5, 6 and 7. Defendant 12 was ex parte and defen dant 13 filed a written statement supporting the plaintiff.

The contentions of the parties suffi ciently appear from the principal issues settled in the case, which were as follows :

(1) Is the jurisdiction of the civil Court bar red by S. 4A, Bombay Act 10 of 1876 ?

(2) Is it barred by S. 25, Bombay Act 3 of 1874 ?

(3) Is it barred by the Pensions Act 23 of 1871 ?

(4) Is it in time?

(10) Are the decisions of the Inam Commissioner and settlement officer under Act 11 of 1852, binding on the parties ?

(13) Is the land in suit (120 mars) watan property ?

(14) Have plaintiff and defendants 12 and 13 acquired by adverse possession a title to the offices of watandar patil and kulkarni, and to the watan land ?

The District Judge found for the plaintiff on all the issues except that he held that the claim for the cancellation of the watan register was barred under S. 4 (a), Bombay Revenue Jurisdiction Act, 1876. The High Court allowed the appeal and dismissed the suit on grounds which will be considered later.

The history of this litigation is long and complicated, but the facts which are material for the decision of the case may be stated as follows :

In the village of Hebli there were in former times the usual service watans, or herelitary offices of patil or headman, kulkarni or accountant, and nadgir, which were vested in the family of de fendants 2 to 11, who held the watan lands of 200 mars in the village, subject to the payment of Government of a fixed judi instead of the full assessment, the revenue thus remitted being remunera tion for the discharge of their duties. It would appear further from records of the early part of the eighteenth century that this judi fell into arrears, and that the ruling power entered into possession of the watan lands and treated them as kamavishi, or under management, for the purpose of realizing the arrears. This was apparently the state of things when in 1718, the ruling power granted the village to the plaintiff'' predecessor in jaghir. The sanad conferred upon him.

the kasba of Havur Hebli, together with the hamlet Vatanhal and lands appertaining to zabt (i. e., attached) inams of muccadum and nadgirs and others.

The effect of these words is in dis pute, but it may be observed that Mountstuart Elphinstone, in his well-known report on the territories conquered from the Peishwa (1821), includes among the sources of revenue of the former Govern ment (p, 31, 2nd edition), a heading ''Wuttum Zubtee - Produce of Lands belonging to zemindars sequestrated by Government," and the reporte of his sub ordinates, on which his report was founded, show the extreme reluctance of the rulers in ancient times to forfeit absolutely watan and mirasi lands for the non-payment of revenue, and that even where the owners deserted their lands and fresh cultivators had been admitted, the descendants of the former owners were not wholly barred of their right, to reclaim them until the lapse of 100 years. These facts tend to support the construction placed by the Bombay High Court in a suit which will be referred to on the words of the sanad, which they held did not amount to a fresh grant of the watan to the plaintiff'' ancestor after confisca tion from the nadgirs, because the word "zabt" was capable of meaning "under attachment." It is, however, unneces sary to pursue this point. The District Judge refused to act on the defendants' evidence tending to show that they were in possession in certain years subsequent to the grant of the sanad to the plaintiff'' ancestor; and it appears clearly from the accounts produced for the plaintiff, that, ever since the annexa tion of the Peishwa'' territories and the introduction of British rule, these lands continued in possession of the plaintiff'' family, and were entered in the accounts under the heading of kamavishi, or under management, though the defendants' family made unsuccessful efforts to re cover them.

This was the state of things when the inam commission was set up under Act 11 of 1852 for the adjudication of titles to lands claimed to be wholly or partially rent free in the presidency of Bombay.

After reciting that claims against Government in respect of inams and other estates, wholly or partially exempt from payment of land revenue, were excepted from the cognisance of the ordinary civil Courts (which, it may be observed, had sole competence as to titles to the land itself), and it was desirable that the said claims should be tried and determined without further delay, the Act proceeded to set up the inam com mission for that purpose. Schedule A of the Act contained rules prescribing the duties of each Commissioner and his assistants, and Schedule B :

Rules for the adjudication of titles to estates claimed as inam or exempt from the payment of land revenue.

Speaking generally, in cases coming under Rr. 1 to 5, the exemption was to be confirmed and to become final, while R. 6 provided that in other cases the lands were to he resumed. R. 7 then provided for the continuance of holdings for the support of mosques and temples, and R. 8 for the continuance of holdings by official tenure meant to be hereditary. This rule would undoubtedly have inclu ded the watan offices of patil and kulkarni but for the fifth proviso which was as follows :

The provisions of this rule are not in any way to apply to emoluments continued for service performed to the State, as the service watans of desais . . . patil kulkarnis . . . whose claims are to be disposed of according to the rules which are or may be established for the regulation of such holdings.

Under this Act the question, whether the jahagirdar'' grant was a serva inam - that is to say, a permanent revenue-free grant, or was held on sarinjam tenure - came before the inam Commissioner, who on the 31st July 1858, recorded his deci sion (Ex. 312) that the claimant'' title to hold the villages in serva inam was in valid, but that its enjoyment was not to be interfered with in consequence of this decision. This was in accordance with R. 10, Sch. B of the Act, which provided that the rules were not to be necessarily applicable, among other tenures, to sarinjams, the titles and continuance of which were to be determined as thereto fore under sach rules as Government might issue.

With reference to watan inams in the village, Ex. 451, of the 9th February 1863, which is a communication from the Jabagirdar to the Mamlatdar or local revenue officer, shows that Major Etheridge, apparently, as Inam Commis sioner, had taken up the general question of the kadim inams in this village, that is to say, of the inams which existed before the grant to the plaintiff'' family, and not being included in that grant, were liable to be dealt with under the Act.

Major Etheridge'' proceedings on this question are unfortunately not forth coming, but in Ex. 471 of the 12th November 1864, which was a reply to a reference from the Revenue Commis sioner, he states that in 1862 he had settled certain items, on the best evi dence available, to be kadim. In their Lordships' opinion, the inference is that in so deciding he was acting as Inam Commissioner, and that the reference related to that decision. In his reply, Ex. 471, he deals with 21 items, all of which he had settled (apparently as In am Commissioner) to be kadim or old inams. Of these, he found on the fresh evidence which was available that only two items, with which we are not now concerned, one being the gramjoshi'' or village astrologer'' inam, were kadim, that is in existence prior to the grant to the jahagirdars. He went on to observe, however, that the Jahagirdars had not received items 15, 16 and 17 (the 200 mars to which the suit relates) as bona fide khalsat but as "coomavisee" (i. e., kamavishi). In explanation of these terms, reference may be made to the following passage in Sir Charles Sargent'' judgment in regular appeal 3 of 1876, the suit already referred to, with refer ence to other items of this watan land which are not now in suit.

Now there can be no dispute about the term 'khalsat,' which means when applied to (? unalienated) lands those of which the revenue remains the property of Government not being made over in jagheer or inam to any other par ties. (Wilson'' Glossary of Indian Terms.)' When used in regard to a jagheer village, it means land which is absolutely the property of the jagheerdar not being made over in inam to any other parties.

With reference to the term "kama vishi,'' the learned Judge observed :

It seems very clear that land entered as kama vishi is land which for some reason or other has come under the management of the Government or its assignee for the purpose of collecting the revenue but which has not been incorporated with the khalsat land, which is the absolute property of the Government or its assignee.

Major Etheridge'' reply went on to state that it appeared from certain re cords of 1796 that the kamavishi manage ment remained as before, and that, as there was nothing to show that it had been subsequently altered, with the ex ception of 7� mars and 3 bighas which at some time had reverted to the nadgir (the defendant'' family), it might be allowed that the kamavishi management of the remaining 192� mars 6 bighas had assumed a permanency of tenure which could not justly be interfered with. He accordingly recommended that the nadgirs' land of 7� mars and 3 bighas, with one other item with which we are not con cerned, should alone be made amenable to settlement as held from Government when the order for the settlement of alienated villages should be authorized. The remainder, he considered, should be long to the Heblikars or Jahagirdars.

What was done on this recommendation appears from Ex. 477, an entry in the revenue outward register of the Dharwar talequa for 1864-5 containing a precis of a communication sent to the mamlatdar, or subordinate revenue officer of Dharwar. This recites the recommen dation of Major Etheridge that only 7� mars and 3 bighas should be treated as liable to settlement and that all the re maining lands except those lands should be continued with the Heblikars. The entry goes on :

and His Honour the Revenue Commissioner has approved of this in his letter No. 5056 dated the 30th of the month of December, 1864 A. D. Therefore the order has been sent to you for (Daklala) reference in order to give effect to this and the Heblikars have also been informed.

It was admitted by Government in answer to interrogatories that Major Etheridge'' recommendation to which effect was thus given, was approved by Government, and in their Lordships' opinion the inference is that it was ap proved by them on appeal from Major Etheridge'' original decision as Inam Commissioner. Under Sch. A, R. 2, the Governor-in-Council was authorized to modify, reverse or annul the decision of the Inam Commissioner, and under Sch. B, R. 11, to relax the rules in favour of claimants and to interpret the precise meaning of any of the rules as to which a question might arise. Their Lordships, therefore, see no sufficient reason for differing from the District Judge'' find ing that the decision that the suit lands, with the exception of the 7 mars, were not to be treated as kadim, and so amen able to settlement, must be taken to have been made in the exercise of the powers conferred by the Act, a finding which is not questioned in the reversing judgment of the learned Chief Justice, who proceeded on the view that such a decision having regard to Prov. 5 to R. 8 was without jurisdiction. In their Lordships' opinion, however, it was within the jurisdiction of the Govern ment as the supreme authority under the Act to decide whether these lands should be dealt with in the one way or the other.

Before considering the effects of this decision it is necessary to complete the narrative of the events which led up to the filing of the present suit.

There were partitions in both fami lies, and in 1867 some members of the defendants' family instituted a suit against some of the plaintiff'' family, to which the plaintiff was not a party so that the decision is not binding on him as res judicata, to establish their right to the patil and kulkarni offices, and in particular to recover certain items of watan lands which were in possession of the members of the plaintiff'' family who were defendants in that suit.

The High Court in R. A. 3 of 1876 held that up to a period within 12 years of the institution of the suit the posses sion of the defendants (the jahagirdars) was not adverse to the plaintiff (the nadgir), and that the latter was entitled to recover the lands in suit on payment of such arrears of judi as might be found due on taking an account. It was found that no arrears of judi were due and he accordingly recovered possession.

The other nadgirs, represented by defendants 2, 3 and 5 to 11 in the pres ent suit, did not then institute any suit to recover from the family of the present plaintiff and defendants 12 and 13 the watan lands in their possession.

In 1873 the Bombay Hereditary Offices Act 3 of 1874 was enacted to declare and amend the law relating to hereditary offices; and in 1884 the District Deputy Collector of Dharwar passed an order, Ex. 295, on an application by members of the nadgirs' family, which appears to have been made in 1875, under Part 6 of that Act for the preparation of the patilki and kulkarniki watans of the village of Hebli. He held that neither the plaintiffs' nor the defendants' fami lies had established their claims and that the appointment should be treated as amani or stipendiary. This decision was afterwards reversed by the Bombay Government, who directed a fresh enquiry, Ex. 324 of 22nd November 1890.

The Collector in 1893 reported, Ex. 323, that he was not competent to decide whether the nadgirs or the jahagirdars were watandars and referred the parties to a civil suit. Suits were filed on both sides but not prosecuted; and in 1904 the Commissioner, Ex. 321, directed the Collector to submit his opinion as to which of the two families was entitled to the watan (including lands and rights of service). If it should be found that neither side had any valid claim, the Collector was to report what the watan lands were, and whether they should revert to Government, and if they were sufficient to maintain stipen diary village officers.

The Deputy Collector, to whom the matter was referred, was of opinion that the judgment of the High Court, already referred to, conclusively showed that the nadgirs were the watandars, and the Collector of Dharwar prepared the patilki and kulkarniki watan register of the village on this basis, Ex. 316 of 28th November 1906, deciding, pursuant to the provisions of the Act, which members of the nadgirs' family were to be representative watandars. The jabagirdars appealed and the Commis sioner of the Southern Division passed orders on the appeal, Ex. 315 of 17th July 1907.

He held that S. 25 of the Act made it imperative for the Collector to determine who were to be representative watandars, and register their names without waiting indefinitely until one or other of the rival claimants to the office of watandars procured a decision of the civil Court, and that the nadgirs were shown to be the watandars as decided by the High Court in the suit already referred to, and that the representative watandars had been rightly selected from their family.

He consequently upheld the Collector'' decision in determining members of the nadgir family to be representative watandars. He was further of opinion that the whole of the watan lands should be entered as such in the watan register, 80 mars for the patilki watan and 40 for the kulkarniki as shown in Major Etheridge'' letter of 9th January 1865, but that it would not be necessary to recover for the watan from the jahagirdars in possession more than was required for the endowment of the officiators under the Act.

This order was confirmed by Govern ment resolution 10129 of 1908, and in 1913 the sum of Rs. 969-0-8, which it is now sought to recover, was levied under the Act from the appellant for the emoluments payable to the representative watandars. Thereupon the plaintiff filed the present suit.

On the merits the District Judge was of opinion that the decision of the Governor in Council, confirming the recommendation of Major Etheridge, was binding on the parties and entitled the plaintiff to hold the suit lands free of assessment, and that they had ceased to be watan lands and were not liable to contribution for the remuneration of officiators under the Act.

He held further that the plaintiff'' family had acquired the offices of watan dars patils and kulkarnis by adverse possession, but that under S. 4A, Bombay Act 10 of 1876, the Court had no jurisdiction to cancel the register.

Defendant 1, the Secretary of State in Council, did not appeal from the judgment, but both the plaintiff and the other defendants 2 to 7 preferred appeals, and the High Court, as already stated, allowed the defendants' appeals and dismissed the suit. The judgment was delivered by the learned Chief Justice, who, after reviewing the evidence and examining the judgment of the High Court in A. S. 3 of 1876, held that by reason of Prov. 5 to R. 8, Sch. B of the Act excepting service watans from the rules, there was no valid decision under Act 11 of 1852. Their Lordships have already given their reasons for not accepting this ruling. He also came to the conclusion that in the appeal to the High Court in the previous suit no reliance had been placed on Major Etheridge'' decision or its con firmation, but the learned counsel for the appellant have satisfied their Lord ships that the Ex. 337 in that case, which was referred to in the High Court'' judgment is Ex. 471 in the present case. With regard to it, the learned Judges remarked :

This entry no doubt correctly described the existing state of facts, and it is not clear that the Inam Commissioner arrived at the conclu sion that the land was absolutely the property of the jahugirdars. But even if such were his conclusions, the plaintiff is not bound by a decision to which he was not a party, and the object of which was simply to settle the respec tive rights of the Government and the jahagirdars.

In the present case therefore the learned Chief Justice was mistaken in supposing that no reliance was placed on this document in the previous suit or that the High Court ignored it.

The learned Chief Justice was further of opinion that the District Judge'' find ing that the plaintiff'' family was entitled to the watan offices could not be sup ported because it was founded on a wrong view as to the effect of Major Etheridge'' recommendation and a wrong appreciation of the evidence on which he found that the jahagirdars had ac quired a title to the lands and offices by adverse possession.

He also held that the suit was barred under Art. 120, Limitation Act, except as to the claim for a refund of the contribution as it was not brought until more than six years after the Collector'' order of the 26th November 1906, and the framing of the watan register.

As the order could no longer be set aside, he also held that the contribution levied under it could not be recovered and accordingly allowed the appeal and dismissed the suit.

The plaintiff then preferred the pres ent appeal to His Majesty in Council. The first defendant, the Secretary of State in Council, who, as already stated, did not appeal from the judgment of the District Judge, has not entered appear ance or instructed counsel to support the judgment of the High Court dismissing the suit; nor have any of the other defendants, except defendant 6 and the representatives of defendant 7, now deceased. These are respondents 4, 5A. and 5B. Mr. Dunne, who appeared or their behalf, intimated that they were only concerned to defend their title as watandars and oppose the cancellation of the watan register, and that they were not interested in supporting the order imposing a contribution upon the plain tiff, or opposing the recovery of the contribution actually levied.

In these circumstances it will be con venient in the first place to deal with Mr. Dunne'' contention on behalf of these respondents that S. 4. Bombay Revenue Jurisdiction Act 10 of 1876, bars not only the claim for the cancellation of the watan register, but the claim for a declaration that the plaintiff and defendants 12 and 13, and not the nadgirs' defendants 2 to 11, are watandar patils and kulkarnis of the village. The section is as follows :

Subject to the exceptions hereinafter ap pearing no civil Court shall exercise jurisdic tion as to any of the following matters :

(a) claims against Government relating to any property appertaining to the office of any hereditary officer appointed or recognized under Bombay Act 3 of 1874, or any other law for the time being in force, or of any other village officer or servant; or claims to perform the duties of any such officer or servant; or in respect of any injury caused by exclusion from such office or service,

or suits to set aside or avoid any order under the same Act or any other law relating to the same subject for the time being in force passed by Government or any officer duly authorized in that behalf, or

* * * * *

In their Lordships' opinion these words are wide enough to preclude the Courts from entertaining any claim to the watan offices in opposition to the claim of the hereditary officers recognized or appointed under the Act, and also any claim for the cancellation of the watan register. To this extent, therefore, the plaintiff'' case must fail.

As regards the other part of the case, as to which their Lordships unfortu nately have not had the advantage of hearing arguments on behalf of the Respondents, they are unable to agree with the ruling of the learned Chief Justice that the plaintiff is barred by limitation from suing for a return of the contribu tion levied on him, and for a declaration that the suit lands in his possession are not liable for such a contribution because he failed to file a suit to set aside the order imposing it within the period limited for filing such a suit. In their Lordships' opinion, if the order was illegal, the plaintiff was not bound to file a suit to set it aside, but was entitled to wait until it was enforced against him, and the attempt to enforce it against him gave him a good cause of action which was admittedly within time.

It has, however, to be considered whether these claims are not barred under S. 4 Bombay Revenue Jurisdic tion Act set out above, a question not dealt with by the High Court.

The District Judge was of opinion that they were not, because of the pro viso to the section that

If any person claim to hold wholly or par tially exempt from payment of land revenue under ... (k) ... an adjudication duly passed by a competent officer . . . under Act 11 of 1852 which declares the particular property in dis pute to be exempt, such claim shall be cogniza ble in the civil Courts.

Land revenue in S. 3 is defined as including "any cess or rate authorized by Government under the provision of any law for the time being then in force" and the suit for a refund of the contribu tion levied under Act 3 of 1874 would, therefore, be barred unless exemption is claimed by virtue of an adjudication under Act 11 of 1852, which declares the particular property to be exempt. According to the view taken by the District Judge from which their Lord ships see no reason to differ, there was in this case an adjudication under Act 11 of 1852 securing the revenue of the suit lands to the jahagirdar, and if this be so it has been pointed out by Sir George Lowndes that Act 3 of 1874, under which the contribution was levied, only extends to this village

so far as its provisions may not conflict with the terms on which any such alienated village may have been secured to its proprietor.

In these circumstances their Lordships see no sufficient reason to differ from the District Judge'' conclusions that the effect of the decision was to render the suit lands in the hands of the plaintiff and defendants 12 and 13 not liable to contribution under Act 3 of 1874, and to avoid the bar to a suit for its recovery under S. 4 Act 10 of 1876.

Their Lordships do not consider it necessary or desirable for the due dis posal of the suit to enter on any other question; and they will accordingly hum bly advise His Majesty that the plaintiff'' appeal be allowed and the decree of the High Court set aside, and that the plain tiff be given a decree declaring that the suit lands in the possession of plaintiff are not liable to contribution under Act 3 of 1874, and ordering a refund of the contribution sued for and that otherwise the suit be dismissed.

As regards the costs, their Lordships think that the senior nadgirs and the Secretary of State should pay the costs of the appellant in the lower Courts and of this appeal, and that the appellant should pay the costs of the junior nadgirs, represented by Mr. Dunne, in the lower Courts and of this appeal. The order will therefore be that Respondents 1, 2, 6 and 7 are to pay the Appellant'' costs in the lower Courts and of this appeal, and that the appellant is to pay the costs of respondents 4, 5A and 5B in the lower Courts and of this appeal.