Nam Narain Singh vs Tekait Ganjhu and others

No. 191.-We do not propose this morning to deliver a final judgment in this appeal, that is to say, a final judgment in it. It may be that in hearing the other eases something may arise which might make it desirable to add to the terms of the judgment which has been written. But substantially we are now about to dispose of the questions which have arisen in the lengthy argument before us IN this case. The Plaintiff is zemindar or Rajah of the well known Ramgurh estate described in Hunter''s Vol. 17, p. 120.

The names of the Rajah''s predecessors so far as material are as follows :-

Plaintiff succeeded under the decision in 1872, reported in 9 B. L. R. 274 (Maharani Hiranath Koer v. Ram Narayan Sing).

The Plaintiff zemindar of Raj Ramgurh brings this suit for the possession of lands situated within the limits of his zamindari.

The Plaintiff''s case is that these lands were held in lieu of salary by Digwars or road patrols appointed to guard ghats and roads within the zamindari by the Plaintiff or his ancestors; that the Digwars were so appointed that they were the servants of and subject to the zemindar of Ramgurh estate, and the appointment and dismissal of them was in the power of the zemindars for the time being, the Magistrate and the Police only keeping an eye and having supervision over them (the Digwars) to see if they discharged their duties faithfully; that at times the authorities informed the zemindar of the dishonesty and misconduct of the Digwars and had many of them dismissed and others appointed that when a Digwar was dismissed his jaghir was resumed and the resumed land settled afresh according to the choice of the zemindar; that afterwards the District Superintendent of Police at different times dismissed several of the appointed Digwars and appointed others and at his request the zemindar of Ramgurh used to pay the salary of the said Digwars in cash into Government Treasury; that in 1877 on account of negligence on the part of the former Digwars the authorities thought it proper to make a fresh settlement with the Digwars and all the old Digwars with whom settlement had been made by the zemindar of the Ramgurh estate were dismissed. Plaintiff sets out a perwana from the Deputy Commissioner of Hazaribagh, dated the 16 th February 1877, by which a new settlement with the Digwars was ordered. He states that after this the Deputy Commissioner instructed Mr. Wilson, formerly Assistant Commissioner, but at the time Manager of the Ramgurh estate, on his (the Plaintiff''s) behalf to resume the baiswan jaghir lands which were held in possession by the dismissed Digwars in lieu of their salary, and in con sideration of their being In possession for a long time to execute lease pattahs in their favour for terms of 20 years; that such settlements were offered to the Digwars and accepted by some of them, but that he has not yet got possession.

He claims that from the 16th February the date of the perwana, he has been entitled to resume the Digwari lands held by the Digwars who have been dismissed and that his cause of action against them then arose.

Paragraphs 11 to 17, inclusive, of the plaint set out a case made against the Deputy Commissioner of Hazaribagh which la not involved in the appeal before us. It is however necessary to refer to it. The Plaintiff states that by the parwana of February 16th, 1877, he was required to pay to Government Rs. 1,004 per mensem, as Digwari assessment; that in March 1880 he was directed by another peruana to pay only the reduced assessment of Rs. 615-11-4 and on the 31st July 1882 by another, to pay Rs. 946 5, each of which successive orders he has obeyed.

The Plaintiff complains that under the Hazaribagh and Lohardagga Police Act, which is Act VIII of 1878 of the Bengal Council, the dismissed Digwars were settled with and assessed as sikmi talookdars or under-tenure-holders where as they were not likmi talookdars but Digwars in the special service of Plaintiff, while no Digwari assessment was made on persons who were really sikmidars of the Plaintiff whose number is very great; he says the Digwars having been dismissed and the whole amount of salary charged on him under the perwana of February 1877 they had no right to retain possession of the service lands; but by the proceedings of the Deputy Commissioner they had been made sikmidars and he feels great difficulty in resuming the lands held by them.

The suit was originally instituted against 182 Defendants included in two Schska and kha, the first containing the names of the Digwars made Defendants the second, kha, being described as persons holding possession of the mouzahs mentioned in the said schedule under mortgages, &c., made on behalf of the Digwars named in Sohha. The plaint states in para. 18 that they are made Defendants " for when the principal Digwars have no right to hold possession of the disputed mouzahs, the persona who hold under or through them can have no right at all to hold possession. That is the cause of action as against these persons. No case is made against them as alienees without the sanction of the zemindar. The last of the original Defendants is the Deputy Commissioner of Hazaribagh. To these 182 Defendants many more were subsequently added either on their own application or on the application of the Plaintiff. By an order of the Judicial Commissioner of January 9th, 1885, the Plaintiff was allowed to proceed against nine sets of Defendants in so many separate suits, the Deputy Commissioner remaining also a Defendant. As against the others the suit was dismissed with liberty to file a fresh one.

These nine case s after being before several judicial officers were finally heard by Mr. Renny, 2nd Subordinate Judge of Hazaribagh, who dismissed the suits and it is from his decrees that the present appeals are brought. No appeal is brought against that part of the decrees which dismissed the suit as against the Deputy Commissioner of Hazaribagh.

The Sub-Judge has disposed of the nine cases in one judgment, noticing the points in which the nine cases, called by him lots, differ from each other.

At the request of the parties we consented to hear the appeal relating to lot I first, and it was argued before us at very unusual length, owing in part no doubt to the imperfect manner in which the case was originally shaped and was presented by both sides at the hearing in the Court below.

We have thought that in complying so far with the wish of the parties we have adopted the least inconvenient mode of dealing with a case which, in consideration for the unfortunate litigants, we have felt bound to hear, although the mode in which it has been framed and managed makes it almost impossible to deal with it satisfactorily.

Substantially, the Defendants'' contentions in their written statements are, that they are under-tenure-holders who themselves had under them Digwars and road patrols. They deny that they rendered or held by personal service as Digwars. They set up an ancestral jagbir and they also contend that the Plaintiff is bound by the proceedings had under Act VIII of 1878 of the Bengal Council and referred to in the plaint.

In evidence they attempted to show that they held under a Mudkati Jaghir granted for services done to the Plaintiff''s ancestors against the Pindaris or other marauders. This they undoubtedly failed to establish.

The Sub Judge has found that it is shown that they hold Digwari Jaghirs which is the case set up by several of the other Defendants and he finds that the Defendants did not refuse to obey orders and did not fall to render service. He finds, therefore, that Plaintiff is not entitled to resume the lands held by the Defendants.

The Sub-Judge also holds that the suit is barred by sec. 34 of Act VIII of 1878 of the Bengal Council. We think it unnecessary to determine that question: and as the Government is not represented before us, we abstain from expressing any opinion as to the regularity of the proceedings taken under the authority of that Act by the executive authorities.

Before us the Appellant''s contention was that the Defendants had the lands held by them merely as wages to hired servants, and that the Rajah could dispense with the services for which the wages were in this form received at his pleasure, and could then resume the lands: it was further contended that if the performance of the services ceased without the Rajah''s own act in dispensing with them, he then also had the power to resume; and further, that as a matter of fact the services had ceased by reason of the Defendants'' default, and that therefore the Rajah, from any point of view, had become entitled to resume.

The Respondents contend that even on the Appellan''s own case the Defendants have their lands by a permanent tenure, heritable in its nature; that the lands are held subject to certain services, namely, the payment of a small rent, and the performance of the duty of guarding certain ghats. In short that the relation between them and the zemindar was not the hiring of a servant giving him certain land by way of wages, but arose out of grants of land upon the condition of certain services [as in Rajah Leelanund v, Thokur Munoorunjun I.A. Sup. Vol. 181 (1878)].

The Defendants have not produced any grant or sannad. The Plaintiff tendered, during the proceedings in the Court below, documents which he put forward as copies of sannads granted to the Defendants'' predecessors by divers of his ancestors. These documents we hold to be inadmissible.

But it is in the 6th paragraph of the plaint expressly alleged by the Plaintiff that the mouzahs mentioned in the schedule were granted by his ancestors to the ancestors of the different Defendants as baiswan Digwar Jaghir in lieu of salary for their service as Digwars and their protecting the passes. It has been throughout the Plaintiff''s case that the different Defendants held under grants or sannads; the questions in the case have throughout been whether the grants were made upon such terms that they were resumable at the pleasure of the Rajah, or if not in what events, and whether, if resumable in any events, such events have happened as to entitle the Rajah to resume and to maintain his present suit for possession.

Before we proceed to refer to the evidence of the Plaintiff, we must observe upon the character of the services to which the term Digwari is applied, for the decisions in the Judicial Committee of the Privy Council and in this Court have been usually with reference to services, termed in the cases decided, Ghatwalli services, and this case has been argued for the Appellant upon the footing that the Digwari service of the Defendants was a service personal in its nature, and not of that public character which formed an element in the determination of the cases respecting Ghatwalli tenures.

Having regard to the nature of the service, to the length of time during which according to the Plaintiff''s case, these lands have been held under it, to the extent of the aggregate of the mouzahs (over 400 bighas in this single case) and to what is before us as to the use of the term Digwar in one or two cases which have come before the Privy Council we have no doubt that the Digwari service in this case corresponds closely with what in other cases have been termed Ghatwalli. The terms for all purposes, such as arise in this case, in respect of the nature of the services, seem to be interchangeable. There is nothing in the use of the term Digwar to raise any presumption in favour of the contention that the holders of land by a service so named hold as personal servants of the Rajah. If anything, the presumption would seem to be the other way.

The origin of these kinds of services and the nature of them and of the tenures held subject to them in this part of Bengal are fully set out in Lord Kings-down''s celebrated judgment, Lelanund Sing v. The Government of Bengal 6 M. I. A. 101 (1855). The term Digwars, so far as we are aware, first appears in reported cases, in Rajah Nilmoney Singh v. Bakra Nath Singh 9 I. A. 104 (1882) and in Nilmoney Singh v. Beer Singh 18 W. R. (P. 0.) 321 (1872). Those were case s relating to the Pachete Raj and in both the report of Lala Khanya, tehsildar of Pachete, made in 1799 was much referred to. On reference to these case s, it is plain that in 1799 the Digwars in the Pachete Raj ocoupied a position which so far as it differed at all from that of the Ghatwals did so in being superior rather than inferior to that of the Ghatwals of that particular region. It is certain that in the latter of the two cases referred to, the Plaintiff, the Pachete Rajab, made DO attempt to dispute that the 57/1/2 mouzahs held by the Digwars in that zamindari were, as he put it, Government mouzahs and could not be resumed by him; and that Digwars were there treated as servants who were required to perform police service for Government-were in fact, as stated by Counsel in argument at p. 110, Vol. 9 I. A., appointed by and subject to the Magistrate "and free of all obligations to the zemindar." The Judicial Commissioner In Beer Singh''s case (4) observes that " there can be little doubt that these rural police were variously named at different times and In different districts, but as guardian of the Ghats or passes they are better known in latter times as Ghatwals."

Probably the term Digwar might be applied to the humblest class of persons engaged in this species of police duty or to a person of much higher social rank who held an estate on this kind of service. So might the term Ghatwal. There might be tabedar Ghatwals, as well as jaghir Ghatwals.

The documents called "copies of sannads" are Exhibits 22, 23, 24 said to be copies of sannads granted in A. D. 1795, Ex.25 A. D. 1806, Ex. 27 A. D. 1853 and Ex. 28 A. D. 1855. As to these it is enough to say that there is no proof whatever that sannads corresponding to them were ever granted or that if they were, these are correct copies of them. They do not even purport to be copies of sannads actually executed. There is nothing in them (4) 18 W. R. (P. C.) 321 (1872), or in the evidence relating to them to justify the admission of them In evidence; they were properly treated as inadmissible and as worthless, in the Court below.

Exhibits 2A55 and 2A56 have been held to be inadmissible by the lower Court.

They are said to be copies of lists of Digwars, Ghatwars, and Boulhars for the years A. D. 1799 and 1806 respectively, which lists are said to have been furnished to the executive officers at the time in accordance with their duty towards Government by the Rajahs of Ramghur.

The originals of which these documents are put forward as copies were called for from the Deputy Commissioner and were not produced and these papers are it was contended admissible as secondary evidence of them.

They were admitted by the Acting Judicial Commissioner who sat during that part of the hearing of the case at which they were put in, so far as his marking them as evidence in the case can have that effect, and they do not appear to have been objected to at the time. But according to the course pursued during the conduct of this case, all the documents produced seem to have been marked and admitted de bene esse, all questions as to their admissibility being reserved until the case should be finally disposed of after arguments.

We do not find that in the memorandum of appeal any objection is taken to the rejection of these documents on the ground that they had been admitted without objection on the part of the Defendants and Defendants certainly did argue before the lower Court after evidence had closed, as we understand, that those papers were not admissible. We think we must treat them as not precluded from pressing that objection in appeal before us.

As to those documents it is to be observed

That there is no evidence that the (sic)ts of which they purport to be copies were actually sent to the Government officials.

2 That there is no evidence that lists similar to these in form, and in the nature of the very minute particulars given, were as a matter of usage, or of duty, sent by the Rajahs to the Government in former or in recent times. Reg. 12 of 1807 was not in force at the date which the latter of these lists bears; and the Regulation then in force, 22 of 1793 did not require such lists as these are to be furnished.

There is no evidence that copies of lists such as these were regularly kept according to the course of business (assuming that there was a course of business) in the Rijah''s sherista. No other copies before or after these in date, are produced by the Plaintiff similar to these nor any list of any kind until the comparatively recent date of A. D. 1864.

There is nothing except their alleged age to bring these documents within sec. 90 of the Evidence Act. They do not purport to be written by any known person, nor do they bear upon the face of them any form or mode of authentication of any kind. Bukshi Bhugwan Das says he heard from Joy Kissen they were prepared In Rajah Moni Nath Singh''s time. That is all.

Lastly as to their credibility, they are wholly different In their character from an undoubtedly authention list, Ex. A to A84, put in by the Defendants, and produced from the records of Government to which we shall refer later on.

They were used before us, and, if they are not genuine, they must have been framed to support the contention that the Digwars whose holdings are mentioned in them were only, as the Plaintiff now contends, subordinate Digwars holding the land poesessed by them as wages. They would not, in our opinion, establish that contention if they were accepted. They may well be construed as limited to this:-As setting out an estimate on the one side of the value of the land held by Digwari service, and on the other of the number of men who are to be kept up by the holders of the land granted. In early times-and these lista if genuine run back nearly 100 years, and probably relate to land held long before on this service-the value of the land let out on this sort of service would naturally coincide tolerably closely with the money value of the services for which it was granted. In truth, we are disposed to think, that these lists if admitted might, from some points of view, rather support the Defendants'' than the Plaintiff''s'' case. There is however no evidence that lists of this character were ever made out. Nor have we any means of judging whether, if lists of this kind ever were in use, those before us have or have not been given terms of expression calculated to give colour to the Plaintiff''s case that the Digwari service was originally at any rate a personal service rendered to his ancestors.

We observe that the witness Bukshi Bhugwan Das whose employment it is to look after the Plaintiff''s cases, says that the list made by him and Joy Kissen Dass was prepared from those two lists and other papers. We gather that this must be the list 2A21 : he says the list he and Joy Kissen made was prepared in pursuance of orders received from the thakbust authorities when conducting the survey in A. D. 1859, which survey lasted for some years, certainly up to 1864. No doubt a list in the form of 2A21 was sent in 1864 S. But how long before that date the lists dated A. D. 1799 and 1806 were in existence, there is nothing to show.

We heard the Appellant''s Counsel upon these documents. We thought it possible that they might be let in as statements against interest inasmuch as they go to show an interest In the Defendants'' predecessors in the mou(sic)s in question. But there is nothing to show who made them, or to connect them with any former Rajah as declarations made by him. On considering them we feel constrained to reject them as being destitute of any of those guarantees of genuineness (whether as to themselves or as to that of which they are offered as secondary evidence) which the law requires.

Next as to Ex. 2A21. Its original was, as we have said-or is stated to have been-prepared by Bhugwan Dass and Joy Kissen. Its value so far as it, has any is in the kyfeut which begins with the words "There is no Ghatwalli in my estate. The Digwars are appointed as servants by me, &c," which we are told is the correct translation.

The original was called for from the Deputy Commissioner''s Office, and after about a year and a half Ex. D21 and a letter D18 were extracted from that office. D21 which is in the Persian character is identical with 2A21 save in the kyteut, which is wholly different, and is unfavourable to the Plaintiff''s case. It says " the Digwars are under the person in possession and the patwaris are not under me " indicating that independent position of the Defendants or Digwars which the Plaintiff repudiates.

There can be no doubt that Rajah Ram Nath did send such a list as this. D18 which is the covering letter which accompanied it, is proved to be his and on it there is an order for the transcription into Persian character of the Hindi list which it covered.

This order is in the handwriting of Bajrung Behari who was alive when the suit was heard and in Tirhoot. He was not called. There is nothing save the existence of the list in the Government records, to connect D21 with the Persian transcriptions ordered; and no proof that any such transcription was made. There is absence of proof of the loss of the Hindi original, but very loose evidence of search. Still, slight as it is, we think there is enough evidence to render D21 admissible, valeat quantum.

So far as it goes, it slightly aids the Defendants'' case and contributes to throw doubt on the Plaintiff''s Ex. 2A21.

But 2A21 is itself of sO little value (if it, has any) that it Is scarcely material to discredit it, So far as it goes, however, it is completely discredited, or contradicted (it matters little which) by Al to A84,

That exhibit is an undoubtedly authentic list, produced from Government records, each page of which contains or contained the seal of Rajah Ram Nath. It was made in A. D. 1843 and one of the headings of the different columns into which it is divided is " name of Laghneder, Alakidar and Ghatwal." In that column of the document appear the names of the different predecessors of the Defendants, as we shall presently notice.

This document confirms the kyfeut of D21; and on the evidence, so far as there is any, that exhibit must be held to be correct, and 2A21 spurious BO far as it differs from it.

Of the principal documents relied on by the Appellant before us, there remains but the two copies of ekrarnamas 2A29 and 2A30. The latter is a registered document it is proved. The ekrarnama 2A29, datad 8 h Assar, Sudi 1910, corresponding with A. D. 1853, relates to three of the villages in question. We were referred to the evidence of Radhika Das, page 58, of Domun Lal, page 88, and of Bissumbhur Das, pp. 109 10, as proving this document. The first two witnesses do prove the handwriting of the document: but Bissumbhur Dasa proves the execution of an ekrarnama by Tekalt, Pertap, Baiju and Gendawari Ganjhu. The document in question purports to be by Maniar Cheta Tekait and Gandwari Ganjhu. It is of little consequence. Were this document proved, it would do no more than record a re-settlement of three Digwari Mongahs from which the Digwars had been for a time removed in consequence of orders from the Government officer, or as he is called in Ex. 26 the attachment pertwana, "the Court." We shall refer to this again presently. Most of the documents set up by the Plaintiff must therefore in our opinion be rejected. But although we reject them, we ought to refer to the desired use of them, as it bears upon one of the two chief points In the case to which some of the oral evidence also is directed. This point relates to the alleged right of resumption by the Rajah at pleasure.

One of the tests applied in the Ghatwari cases to try the powers of resumption asserted by the zemindar, was, whether the service on which the land was held was public, or personal to the zemindar [see the case in Raja Nilmoney Singh Deo v. The Government 8 W R. 121 (1866) and Nilmoney Singh v. Beer Singh 18 W. R. (P. 0.) 321 (1872) in the privy Council]. For if the service be personal to the Rajah, as in the last case was alleged, it may be that the Rajah dispensing with it or the occasion for it ceasing may resume: we say " may be," for perhaps even in that case it may not in every case necessarily follow that he can do so. We need not discuss this.

It was, however, the aim of the Appellant to show that the services in the present case were personal. Hence the argument that where in the statement in the lists (for though we reject them, we must refer to this in stating our view of the argument) the statement " for self" appears, that is an indication that the service was personal, and that the holder of the mouzah or mouzahs was bound to personally discharge it. We do not, of course, attribute to the Plaintiff such a confusion of terms as would be involved in the suggestion that because the service was to be that of the Digwari tenant personally, he would therefore be only bound to a service personal, and not public, within the meaning of the decided case s. But we understand Plaintiff''s argument to suggest, that where service by the Digwari holders in person may appear to have been stipulated for, that stamps such a character on the holding as to show or tend to show that such Digwari holders were of a subordinate order and were mere servants of the Rajah, carrying out under his personal orders the service which he was bound as between himself and Government to have performed.

To this contention (if we rightly apprehend the learned Counsel for the Appellant as making it) there appear to us to be two answers.

In the first place, in the lists which are, as correct statements of fact and apart from the kyfeut, undisputed, i.e., 2A21 and D21, the Digwari holders are less in number than the sirdars mentioned in the fourth column, in some case s. Take the first named persons in 2A21A, namely, Maniar and Tekait. They are the Digwari holders : they are two; No. 3 Chitu Ghanju is one: the Sirdars are two. No. 17, two Digwari holders, 3 Sirdars. See also Nos. 20, 27, 36, 41, 42, the Sirdars are 4. Take the ekrarnama 2A30: the Digwari holders created, or recognised, in the transaction there recorded are two: the Sirdars are eight. There are other examples in the exhibits in the case relied on by Plaintiff; but these are enough.

In the second place personal service rendered in commanding the guards of passes or roads does not necessarily involve the holding of a subordinate position such as to argue a merely personal relation to the Rajah. It may be consistent with the enjoyment of considerable social rank. It certainly was in the case of the Ghatwals of Beerbhoom whose office may have been originally one of personal service, although ultimately it came to be one which might be held even by a female. In the present case, the magnitude of the holdings, to which we have before adverted, seems to us to negative the existence of any such humble relation between the Defendant and the Rajah such as he asserts, and as they eagerly repudiate. In the documents other than the lists, whether those rejected or that which has been admitted, viz., the ehrarnama of 1875, there is not a trace of submission to expulsion from the holding granted save in the case of nonperformance of the service upon which the holding is granted.

Then as to the oral evidence upon the question as to the right of the Rajah to resume at pleasure, or notwithstanding the tenant''s competence and readiness to perform the services.

As to this, we must limit ourselves to stating the conclusion at which we have arrived. We think it clear that the Appellant has not shown any exercise on the part of the Rajah and his predecessors of the right to resume save in cases in which the holders of the lands granted failed to perform the services to which he was bound by the conditions of his tenure. In such cases resumptions have been shown to have taken place, followed in almost every instance proved by the letting of the land resumed to other persons upon similar terms to those under which it had been previously held; in one case a part of the land previously held by Digwars seems to have been otherwise applied by the Rajah. In but one did the whole of the land resumed for default remain in the Rajah''s hands. Another Digwar added the service to his own.

We think it also clear, from the plaint, and the evidence, taken with the plaints, that the power of Government, although generally exercised through the Rajah was always recognised as supreme with respect to the supervision over the Digwars in regard to the discharge by them of their duties. In the evidence for the Appellant the acts of the Rajah with respect to defaulting Digwars are spoken as his, and no doubt in form they were, but we have no doubt that in effect be acted under the impulse and by the authority of Government and as representing it, or rather, the Commissioner or Agent General for the time being in that respect.

Upon the whole, we are of opinion that the evidence documentary and oral fails to show that the Rajah ever possessed or exercised a right to dismiss the Digwars and to resume the Digwari grants, save in cases of default or that by the terms under which persons held Digwari grants, any such power was given or reserved to the Rajah.

It is argued however and this is the second point in the case that the lands are in the zamindari; that the Rajah is primd facie entitled to them; and that unless the Defendants establish the under tenure which they claim, is entitled to a decree for possession.

As to this contention we think we must have regard to the case made by the Plaintiff, and the real controversy in the suit. No doubt the suit was ill-framed, and ill-managed on the Plaintiff''s side and on the Defendant''s, too. Had the Plaintiff''s suit been treated in this appeal, as perhaps it might have been, it may be that it would not have survived the opening. The whole case bristles with objections to any attempt at disposing of it on strictly applied rules. We think we ought to deal with it, as far as we can, upon the real dispute between the parties that is, whether under the ciroumstances, the Rajah has a right to resume as the executive officer appears to have told him he had. The right to resume is the sole right claimed by him and whether he has that right or not is in truth the sole question disputed.

We must look at the statement of facts on what he claimed that right. The Defendants are entitled in our opinion to the benefit of any admissions made by him in claiming it.

He claims that the Digwars have no right to hold and that therefore, i.e., for that reason alone, the persons who hold under or through them can have no right at all to hold possession. So far, as to the Defendants deriving title from Digwars the case against each is the same. He makes no claim in this suit by reason of any alienation made without his assent, supposing that he could do so.

He claims against the Defendants as being persona who hold under grants to their ancestors from his own. His case is that as a matter of face the mouzahs held by the Defendants have descended from father to son. It is natural that a case should be a little modified in appeal in the hands of more instructed advisers contemplating, perhaps, with Impartial disapproval the Plaintiff''s and the Defendants'' mode of shaping their case. But what we have stared was the Plaintiff''s case throughout. His witness, the record-keeper Radhika Das, says at p. 62 " The mouzahs which have been sued for have descended from father to son f and we think there is no doubt on the evidence that as a fact these mouzahs have as a rule so descended.

For the decision of this case therefore we must take it as admitted by the Plaintiff that the Defendants, whoever they were, took and now hold under the terms of the original grant whatever they were; and that any defence open to the original grantees is open to them. Ex. Al to A84 appears to us to be conclusive, coupled with the Plaintiff''s evidence and admissions on this question. It is clear from it that Defendants'' predecessors had a service tenure at a fixed rent, 45 years ago, In these very mouzahs. The nature of the service Is amply proved outside this document. But it proves that the tenure was by service and at a fixed rent besides, a holding somewhat inconsistent with the idea of an enjoyment of a piece of land as wages.

In truth the whole case points but the one way, In our opinion. It is to be lamented that the course described by Chief Justice Garth In Leelanund v. Tha-Koor Munrunjun Singh I L. R. 3 Cal. 251 (1877) with regard to the Khurrukpore Raj should have been followed so minutely in the present by the executive officers, and unfortanately, by the Bengal Council. We can-not help fearing that an ill-drawn Act, VIII of 1878, and ill-conceived proceedings of the executive before and after its passing, have caused the present unfortunate litigation.

We think upon the evidence and the authorities (cited below) that the Digwars on this estate held either first under Government, which there is some ground to suppose they did, or second under the Rajah subject to performing the Digwari service; that there is no proof of any default by them, that the assessment by the Government of them under Act VIII of 1878 is a continuance of their service and that in no case can the Rajah take possession against them.

We have said that Exhibits Al to A84, coupled with the Plaintiff''s evidence and admission, are conclusive as to the particular jaghirs included in them upon the questions arising in the case. We may however add that, having regard to the numerous decided case s with regard to the local police grants in the district, and having regard to the history of the district as set out in the books of authority referred to, it is impossible to shut our eyes to the fact that a customary tenure under perhaps different names exists along the border of the whole of this hill-country in this part of Bengal, the existence of which species of tenure in that country cannot be disregarded in construing the relation of parties situated as the parties in this case are. Nor should we disregard the fact, brought out by the learned Counsel for the Appellant when be was kind enough to furnish us with a large scale map of this region, that these mouzahs in question are to be found ranged In the near vicinity of, and In a manner ranged along the road, the ghats of which (Karo-Behara) the tenure-holders were bound by their service to guard. We need not deal at length with the cases cited. We think it clear that, having regard to Leelanund Singh''s cases, the Khuruckpore cases, [Leelanund Sing v. The Government of Bengal 6 M.I.A. 101 (1855), Raja, Lilanund Sing v. The Government 2 B. L. R, 114 (1865), Rajah Leelanund v. Thakur Munoorunjan I. A. Sup. Vol. 181 (1873), Leelanund v. Tha-koor Munrunjun Singh I L. R. 3 Cal. 251 (1877)] and the Pachete cases [Raja Nilmoney Singh Deo v. The Government 6 W. R 121. (1866), Nilmoney Singh v. Beer Singh 18 W. R. (P. C) 821 (1872), Rajah Nilmoney Singh v. Bakra Nath Singh 9 I. A. 104 (1882)] which we have already referred to, the claim made by the Rajah in this case has been, in so many words, condemned by anticipation in deciding the case s about Ghatwalli tenures.

One word as to the Act of 1878, Bengal Council. It is contended that the service to which the Digwars were appointed ended by the default of the Digwars in 1877, and the dissatisfaction of the Government with the service rendered expressed by the executive officers and recorded in the Gozette is pointed to as proof of that default.

We entirely agree with the lower Court in considering that no such default 1B Shown. It amounts to no more than the substitution for an old fashioned and Imperfect system of police of a new system supposed to be of a superior quality. It is in making that substitution that the executive officers assessed the Defendants, at first authoritatively before the passing of the Act, and subsequently acting or supposing themselves to act under its provisions. We think that it is impossible, having regard to the fact that these Digwars were assessed for road police purposes in an amount, at any rate until 1882, Immensely beyond any burden which, in the form of supply by them of patrols, had formerly rested upon their holdings, to regard this system as anything but a continuance in the form imposed by statute of the discharge of their previous public duties, and upon that ground alone we hold that no default can possibly be held to be proved in this case from the action of Government, while of default by them in the conduct of the old fashioned system, there is no adequate proof whatever.

Lastly as to the effect of the ekrarnama of 1877, that document applies, as we understand, to the present case alone. There is no such document In the other cases shortly to be heard. One of the two grantees whose obligation is recorded in that ekrarnama is a party to this appeal; and we think it impossible, having regard to the terms of that document, to hold that in the absence of the default as referred to in that document and BO long as the grantee or grantees are willing to discharge the service prescribed to them, the terms of that grant, at any rate during their lifetime and that is enough to dispose of the present case, are such as to render it possible for the Rajah to resume as against them. As we have said we have dealt with these matters for the present as not formally disposing of the appeal, although substantially what we have just now said will be the judgment in the case. The points which we have now determined will govern the hearing of the appeals in the other eases; and we shall formally pronounce the judgment in accordance with the terms we have now laid down when deciding the other appeals.

APPEAL No. 192.

(Called Lot II in the judgment)

In this case there are, 1st an ekrarnoma, p. 137, put in by the Plaintiff, 2nd Sawan Budi 1863; 2nd a sannad of 6th January 1871 by Colonel Money acting under the Court of Wards, p. 326; and 3rd a perwana by the Deputy Commissioner to the Rajah, November 1865. The other documents are Inadmissible. The ekrarnama bears the character of that noticed in the preceding case; namely, that admitting liability to expulsion from the jaghirs granted in case of default; it does no more.

The sannad is of too recent a date to be of much value. At most it is a reletting, or a confirmation of 51/2 mouzahs to the son of deceased holder Bhao Sing In accordance with custom of the Mahrajah''s cutcherry. It certainly could not operate as a surrender of a tenure already existing such as form the exhibit next to be referred to. The peruana of 1865 is of some importance as an act of authority by the Deputy Commissioner calling upon the Rajah to compel Bhao Singh, the jaghirdar, to pay the Digwars under him their salaries; and requiring the Rajah, " should Bhao Singh act contrary to the conditions of the Ghatwalli settlement," to take action. It confirms the view expressed by us in the first case, as to the nature of these tenures, both as being held by public service, and that service being of a Ghatwalli nature.

In A38 Bhao Singh''s name appears as jaghirdar of those 51/2 villages. They were plainly held on Ghatwalli service to be done upon the Tesrighat.

APPEAL No. 193.

(LOT V)

As to the right of resumption this case stands on the same footing as those already dealt with.

The names of the fathers of the first 3 Defendants appear in A66 as jaghirdars of the mouzahs claimed; they were Gooroodyal, father of Roopdyal, Sodu Nath, father of Chet Singh, and Ram-dyal, father of Pahari.

These Defendants are alleged by the other Defendants in this case to have assigned to them, whether as mokuraridars or as morrgagees in possession, Interests in possession in the whole of the mouzahs in dispute. The fact of these partial alienations was not disputed in appeal before us and this circumstance no doubt accounts for the confession of judgment by two out of the three principal Defendants. But for the reasons stated in the previous cases we think Plaintiff not entitled to the khas possession claimed.

APPEAL No. 180.

(LOT III)

As to appeal No. 180, Lot No. III in the judgment of the lower Court there is no doubt as to the execution of the kabuliyat by Purdhan Ram Lall who, nevertheless, takes an active part in the defence of these suits, filing a written statement in which the case applicable to the body of the Defendants is set up.

Now, it is to be noticed, that the suit is not brought as against the Defendant upon the lease and kabuliyat, Had it been, it would have been fairly open to the Defendant to apply to have the suit as against him tried separately. The point is not merely a technical one. The suit as originally framed was a suit brought against a whole community of persons on one ground said to be applicable to them all; and the allegations in the 9th paragraph of the plaint as to the execution of leases and kabuliyat are, in truth, merely statements of facts made in support of the general right claimed : it is not alleged in that paragraph that this Defendant or any of the Defendants set out in the list to the plaint bad taken leases nor are he and they sued as lessees. In short the suit is not brought against this Defendant on the kabuliyat; and he is not called upon to consider, prepare and make any defence respecting it.

Upon the case before us we are of opinion, further, that a good defence to the suit upon the lease, had it been sued upon, might most probably be made. Such of the Digwars as submitted to, take leases, did so, according to the Plaintiff, upon being called together by Col. Boddam and asked to give up their Digwari lands and take settlements. We should hesitate before allowing these persons to be bound by leases accepted by them under such circumstances. We are however relieved from the necessity of either deciding such a matter or of sending back this particular case for evidence as to what actually led to the execution by this Defendant of the kabuliyat and the acceptance by him of the lease, by the fact that no suit is brought against him on this document, and no relief claimed against him on the strength of it.

APPEAL NO. 181.

(VII)

This case has no special feature in it and must be decided on the same grounds as the first.

APPEAL NO. 182.

(VIII)

This case stands on the same footing as No. 193. Original owners admit claim, but have assigned.

APPEAL No. 183.

(IX)

Save as to 4 annas same as the last case. As to 4 annas Plaintiff is entitled to a decree against the Defendant Da-nukhdari as to whatever rights that Defendant may have as between himself and the Defendant Kunjbehari, as to which we of course say nothing. As against Kunjbehari the appeal must be dismissed. The result in all the case s, except Appeal No. 183, in that the judgment of the lower Court must be affirmed and the appeals dismissed, with costs in all of them other than Nos. 181 and 182, which we dismiss without costs the Respondents not appearing. In Appeal No. 183 the decree will be In the terms of our judgment in that case.