Muhammad Mumtaz Ali Khan vs Murad Bakhsh and others

Andrew Scoble, J. 1. In the six cases out of which these consolidated appeals have arisen, the plaintiff was Raja Muhammad Mumtaz Ali Khan, the Taluqdar of Atraula, and the defendants were persons who, either by themselves or their predecessors in title, claimed under-proprietary rights in villages in his taluqa. These rights are what are known in Oudh as birt or birt zamindari rights; and the question for decision is whether persons holding under this tenure have a heritable and transferable right, as against the taluqdar, in the villages in respect of which the birt has been created. 2. In Mr. Sykes'' valuable Compendium of the Law specially relating to the Taluqdars of Oudh (p. 173) it is stated that" there are several descriptions of birt known in Oudh, but... the true birt is that known as the bai birt, created by the taluqdar or proprietor for money paid." In the Gonda Settlement Report--and the cases now under appeal come from that district--the bai birt is spoken of as birt zamindari. 3. In the Circular known as the Record of Rights Circular, No. 2 of 1861, the Chief Commissioner of Oudh deals very fully with the subject of birt tenures, and lays down the policy of the Government in regard to them.

Birts'' he says, were given for whole mauzas, or patches of land in mauzas.... These tenures, when granted by the taluqdar for money received, will be maintained as representing the proprietary rights of the birtias who by purchase have acquired the position of intermediate holders, and as constituting the portion of the profits left thorn by the taluqdar.... Birts of entire mauzas are very common in Gonda and Gorruck pore. They originated in purchases from needy taluqdars, and sometimes in clearing leases of jungle land. In the Ootrowla (Atraula) and Bubnee pergunnahs of the Gonda district, the birtias had been in many instances admitted to direct engagements with the Native Government for years previous to annexation, and, of course, were settled with then, and should have been at the late Summary Settlement, on the principle that we are not bound to restore to the taluqdars what they had lost before our rule commenced."--Sykes, p. 174. 4. And the policy of the Government is thus declared: The Chief Commissioner is clearly of opinion that the birtias who were found in direct engagement with the State at annexation, or who have uninterruptedly held whole villages on the terms of their pottahs under the taluqdars, must be maintained in the full enjoyment of their rights, in subordination to the taluqdars. 5. It appears to their Lordships that, if the respondents in these cases have shown themselves to come within the benefit of the policy announced in this Circular, they acquired, upon the annexation of Oudh by the British Government, absolute under proprietary rights as against the taluqdar, in the villages in suit. The learned Judicial Commissioner, Mr. Blennerhassett, in a series of very able and careful judgments, has decided in their favour, and their Lordships entirely accept his conclusions, and the reasons on which they are based. They will humbly advise His Majesty that these appeals ought to be dismissed, and the decrees of the Court of the Judicial Commissioner confirmed. The appellant must pay to the respondents who appeared one set of their costs of the appeals. Privy (Council Appeals Nos. 84 and 86 of 1903. 6. The decision in these appeals follows that in the six cases already disposed of. It may be noted that, in these two cases, the relation of the Birtias to the Taluqdar was fixed by orders of the Settlement Court as long ago as 1872. These orders were not made by consent, but after examination of witnesses, and hearing all parties. Moreover, it would seem from the judgment of the Judicial Commissioner that he would have had "no difficulty in finding" that the respondents or their predecessors in title held "direct under native rule, and after annexation," and that the Taluqdar is only entitled to a malikana allowance. 7. Their Lordships will humbly advise His Majesty that these appeals ought to be dismissed, and the decrees of the Court of the Judicial Commissioner confirmed. The appellant must pay the costs of the appeals.