Rameswar Lal Bhagat vs Raj Kumar Girwar Prasad Singh

Sir Edward Maynerd Des Champs Chamier, Kt., C.J.—These appeals arise out of suits brought by the appellant to establish his right to three villages Gurturi, Kolhua and Gongo lying in Parganah and District Palaman. The defendants to the two suits are different but the questions for decision are the same. The two suits were tried together in the Court below and they may be disposed of by one judgment.

At the beginning of the 19th century Gurturi and Kolhua were part of the Jagir of Sheo Prasad Singh in the Zamindari or Raj of Raja Churaman Rai of Palamau. In 1800 Sheo Prasad Singh transferred them to some Ghowdhris, who in 1806 transferred them to Manog Bhagat. Similarly, Gongo was part of the Jagir of Pati Singh in the same Raj. In 1800 he transferred it to the above-mentioned Chowdhris, who in 1807 transferred it to Manog Bhagat, From 1807 the history of all three villages is the same. Manog was succeeded first by his widows Ram Kuer and Phool Kuer and subsequently by Sheo Prasad Bhagat who claimed to have been adopted by him. Sheo Prasad was succeeded by his three sons of whom the survivor Janki Charan Bhagat died in 1901. Sonkali Koer his widow took possession. The defendants in each of these cases disputed her right and there were compromises whereby she was allowed to retain 10 annas in two villages and 12 annas in the third. The plaintiff, however, maintains that she in fact retained possession of the whole of the three villages. Sonkali died in 1907. The plaintiff, who is son of a daughter of Janki Charan, took possession but his right was disputed and these Emits were brought in 1913. The defendants are descendants of the original Jagirdars.

Both parties have quoted freely from the District Gazetteer and Sir W. Hunter''s Statistical Account of Bengal, Volume 16. These publications shew that the British took possession of the Parganah in 1773 and settled it with the Raja for 5 years. In 1786, a second settlement was made with Raja Churaman Rai, who was a minor. In 1789 a third settlement was made by a Mr. Leslie who drew up a list of Jagirdars and fixed the revenue due from them to the Raja. Churaman Rai on attaining majority assumed the management of his estate, but he fell into arrears with the revenue and the estate was sold to the Government in 1814. Government granted it to another Raja in 1816, but resumed it two years later and has held it ever since. In 1818 the amount payable by the Jagirdars was re-fixed. In 1839 and 1872 other settlements were made. Lastly, in 1894, the settlement was made which is now in force. Prior to the British conquest, the Chero rulers had created a number of Jagirs and other tenures resumable on failure of male heirs of the grantees, retaining the remainder of the Parganah as their khalsa or personal property. When Government came into possession, the Jagirdars were allowed, to retain their Jagirs, the khalsa villages alone remaining in the direct possession of Government, and it is these which now form what is known as the Palamau Government estate.

The following proviso was published as one of the conditions of the sale at which the Government purchased in 1814, "Whereas there are several tenants in the Parganah Palamau, commonly termed Jagirdars, who have for a long period held their lands at a fixed and easy rent, it is hereby notified that the abovementioned persona are to be continued in possession by the purchaser and his heirs or by whatever person the estate may be hereafter possessed in consequence of private or public sale or any other kind of transfer, on their agreeing to such an equitable jama as may be determined by the Assistant Collector at Ramgarh; should the proprietor of the estate and the Jagirdars disagree as to the term of settlement, subject to an appeal to the Court of Justice." Government succeeded to the rights of the old rulers and did not resume the Jagirs but proceeded to assess them to rent. No distinction was made between the different classes of Jagirs and in practice they were recognized as both heritable and permanent. In 1894 it was found that they had been freely transferred either in whole or in part by sale; in every case but one, male heirs of the original grantee were in existence, and while in the case of the larger fiefs the custom of primogeniture had been followed, in the smaller ones, which form the majority, the tenures had been freely divided amongst members of the family like any ordinary property. This being the state of affairs it was decided in 1895 that the transferability of all such tenures should be recognized and the right of resumption on failure of male heirs abandoned once for all, that all transferees should be admitted to registration and that the tenures should thenceforth be raised to the position of revenue paying estates.

The plaintiff''s case is that the original Jagirdars sold all their rights in the 3 villages to the Chowdhris who in turn sold all their rights to Manog Bhagat, and that the (plaintiff) as the heir of Janki Charan, grandson of Manog, is consequently entitled to the villages.

The defendants pleaded that they knew nothing of the alleged sale by their ancestors to the Chowdhris or of the alleged sale by the Chowdhris to Manog Bhagat and that the truth was that their ancestors, who originally held the villages as Jagirdars with rights heritable by heirs male only, had granted them to Manog Bhagat in baidari tenure according to which only heirs male could succeed and as Janki Charan Bhagat had left no male issue, they, the defendants, were entitled to resume the villages. The greater part of this defence is obviously false and has been abandoned. There is, as will be seen later, overwhelming evidence that the original Jagirdar transferred the villages to the Chowdhris, that the Chowdhris transferred them to Manog Bhagat, and that the defendants'' ancestors merely recognized the transfer to him.

The defendants admit that their ancestors recognized the right of Sheo Prasad Bhagat to succeed Manog Bhagat. It is common ground that the defendants'' ancestors held the villages subject to the Raja''s right of resumption on failure of male heirs. If the defendants'' ancestors transferred all their rights to the Chowdhris and the latter transferred all their rights to Manog Bhagat, it would appear that the defendants are not entitled to resume the villages. As descendants of the original Jagirdars they could have no such right and as successors to the Government or the Raja by reason of the action taken in 1895 the defendants are in no better position in this respect.

It appears to me that these appeals might be allowed and the claim of the plaintiff decreed on the short ground that the defendants have not shown that they have any right to resume against the Chowdhris. The Bhagats have been in possession of the villages for generations under a transfer from the Chowdhris, who in turn obtained the villages from the defendants'' ancestors. It appears to me that it is for the defendants to prove their right to resume both as against the Chowdhris and as against the Bhagats. If the burden of proof is on them, they have certainly failed to discharge it. The fourth issue in the case was, "Had the Chowdhris an absolute saleable title to the property in suit or only a limited right to it subject to resumption on failure of male heirs?" I do not understand the passage at the close of the Subordinate Judge''s judgment to the effect that it is not open to the plaintiff to prove that there is a descendant of the Chowdhris still living.

However, as the case may go before a higher Tribunal and is one of considerable interest in the District, I propose to examine the evidence with a view to determining, as if the burden of proof was on the plaintiff, what was the nature and what was the effect of the transfers by the Jagirdars to the Chowdhris and by the Chowdhris to Manog Bhagat.

The plaintiff alleges that his predecessors lost a number of valuable documents relating to these villages in 1877 and be asked the Subordinate Judge to admit secondary evidence of them. The Subordinate Judge, for reasons which seem to me to be wholly insufficient, ruled that the loss of the documents had not been proved. I am aware that it has been held that the question whether a case has been made out for the reception of secondary evidence is primarily one for the Trial Court. But in the present instance I am of opinion that there has been a clear miscarriage. On May 17th, 1877, Thakur Sahai, General Agent of Jasodanund Bhagat, reported at the Patna Police Station that a large number of documents and some other property had been stolen from him two days before at Gurturi, a village in the interior. He gave a list of the documents and property with full details and stated that two of them had been subsequently recovered. No reason can be suggested why the Bhagats should have decided to make away with a mass of important documents. The present plaintiff is not responsible for the report. He gave evidence himself and all that he could say was that such a report was made and that he had not been able to find the documents although he had searched for them. I see no reason whatever for rejecting his statement and none has been given by the Subordinate Judge. I am clearly of opinion that secondary evidence of the contents of the lost deeds is admissible. The Subordinate Judge makes a point of the non-production of the waguzaskt in favour of Manog Bhagat, but that document must have been executed a great many years ago, probably about 80 years ago, and it is not surprising that it is not forthcoming. Nor, I may note, did the defendants call upon the plaintiff to produce it or cross-examine the plaintiff about it.

The earliest documents in order of date are copies of petitions presented by an agent of Manog Bhagat in September 1810 (Exhibits 9 and 10). They recite the sale of the villages by the Thakurs to the Chowdhris and by the Chowdhris to Manog, state that Manog has been paying the revenue of the villages (Rs. 19-4-0 and Rs. 36) and pray that the villages may be exempted from the then impending sale of the Raj. These petitions refer to the transfers as out-and-out sales. At that time there can have been no object in misrepresenting the nature of the transfers. Moreover, the deeds were produced for inspection. In 1840 the Chowdhris sued Sheo Prasad Bhagat for possession of the villages on the allegation that they had only mortgaged them to Manog (Exhibit 11). The suit was dismissed in January 1843. A re-trial was ordered and took place in 1856 with the same result (Exhibits 12 and 13). The judgment of 1843 is important, not only because Sheo Prasad succeeded in showing that there had been an out-and-out sale to Manog but because it shows that the deeds by which the Thakurs transferred to the Chowdhris were before the Court and were regarded by the Court as deeds of sale. It also recites a waguzasht granted by the Thakurs to Manog recognizing the sale to him. The words used are bikri and farofokt, which mean sale and nothing else. The woguzasht, as its name shows, cannot be regarded as a fresh grant to Manog. In 1886 we find the Jagirdar saying in answer to a question regarding the sale or mortgage of portions of his Jagir that 12 villages had been sold, and in the details he says that Gurturi is in possession of Sheo Prasad Bhagat [see Exhibits 4(b) and 4(c)]. In 1893 the statement is repeated by the Jagirdar''s agent, who paid that Gurturi had been sold to Sheo Prasad Bhagat by his predecessor [Exhibits 4 and 4(a)]. In the Jagirdari registers [Exhibits 14 and 14(a)] Gurturi and Kolhua appear as Nos. 5 and 6 in one list and Gongo as No. 6, in another, and it is stated that they are held by Janki Prasad Bhagat by purchase. All these documents point unmistakably to the transfers by the Thakurs and Chowdhris having been sales out-and-out. There is no hint at any thing in the shape of a sub-Jagir. There appears to have been out-and-out sales for a stated and large consideration. The plaintiff produced a large number of receipts for payments made by his predecessors [Exhibits 1(a), (ab), (op), (aq), (b), (c), (d), (e), (g), (h), (k), (n), (o), (r), (z)] to show that they were described as purchasers. The word used is kharidar. We also find the words bai and kharidigi in these documents. All these words imply a sale. The defendants seek to discount the value of these documents by pointing out that the sums acknowledged were usually described as rent. I do not consider that the word rent militates against the view that the transfers were out-and-out sales. The holders of the villages were in the position of tenure-holders and in earlier years at all events they were paying to a person in the position of a Zamindar. Defendants'' Exhibit G, a letter from the Commissioner of Chota Nagpur, explains the position clearly. Much stress was laid by the defendants on the fact that their predecessors paid the road cess [Exhibits 5 and 5(a)], but it is difficult to see who else could have paid it in the first instance. The Jagirdars had sold portions only of their Jagirs, Government seems to have recovered from the Jagirdars whom they treated in recent years almost as Zamindars (as shown by the Gazetteer quoted above) and the Jagirdars recovered from each of the transferees his quota of the revenue or whatever he was bound to pay under the terms of his purchase. Attention was also drawn to the fact that whereas in 1812 the plaintiff''s predecessor paid Rs. 19-4-0 for Gurturi and Kolhua and Rs. 36 for Gongo (Exhibits 9 and 10), he paid Rs. 27-9-0 and Rs. 42-6-0 in 1896. This does not appear to be a matter of any great importance. Exhibit 1(ap) shows that the amount of the payments for Gurturi and Kolhua must have been constant for over half a century at all events. The additional amount may have been due to one of many readjustments of the revenue by the Government. Nor can one attach great importance to the fact that on one occasion some kind of abwab (ruqumat) was paid, for the defendants have for a long time been in the position of superior Zamindars qua the plaintiff in fact, if not in law.

The defendants rely on some litigation between Sheo Prasad Bhagat and the Government regarding a village called Kesmar, which was purchased from Raja Churaman Rai by the Chowdhris and sold by them to Manog Bhagat. On the death of Manog the Government refused to recognize Sheo Prasad as his adopted son and Sheo Prasad brought a suit for a declaration of his title (Exhibits H, I and J). Sheo Prasad failed to prove his adoption against the Government and his suit was dismissed. One of the points taken in the case was that Government had no right to resume unless and until if was shown that there was no heir of the Chowdhris alive. This plea was brushed aside on the ground that after the purchase by Government the Chowdhris had not been recognized at all. That case appears to have no hearing whatever on the present case.

Both sides have filed copies of judgments in other cases as precedents which they wish us to apply or follow. Exhibits F.L.M.N.P. and R filed by the defendants show that grants by Rajas in Palamau and elsewhere in Chota Nagpur are ordinarily returnable on failure of male lineal descendants. This is not disputed by the plaintiff, whose case is that he is entitled to retain his villages because there are still in existence male lineal descendants of the Jagirdar.

The judgment, Exhibit S, is produced to show that the word bai (which ordinarily means sale) is often used in Palamau to denote a mukarrrari. This does not assist the defendants. Lastly, defendants rely upon the case of Perhash Lal v. Rameshwar Nath Singh 31 C 561 as showing that the words at aulad in a Chota Nagpur grant should be interpreted to mean male lineal descendants only. These words appear from Exhibit 11 to have been used in the endorsement on the sale deed by which the villages were transferred to Manog Bhagat, but they are accompanied by the words naslan bad naslan (generation after generation) and we have no direct evidence as to the language used in the transfer by the Thakurs to the Chowdhris.

The plaintiff, on the other hand, relies upon Exhibit 19, a judgment of the Calcutta High Court in a case in which a Jagirdar had sold his rights to some Mahtons by a baipatr. The Mahtons sold their rights to the Bengal Coal Company. After that the Government abandoned their rights and converted the Jagirdari into milkiat or ownership. I do not think that that case has any bearing on the present cases and I do not feel at all satisfied that the decision was correct. It seems to have been held that the subsequent acquisition of the proprietary title operated to change the character of the right acquired by the Mahtons.

After a careful consideration of the evidence in these cases I have come to the conclusion that the decision of the Subordinate Judge cannot be supported.

In the documentary evidence which covers a period of over 80 years, the Chowdhris and the Bhagats are referred to invariably as purchasers, I am unable to believe that such words as bat, farokht and kharid, which mean sale and purchase, would have been used if the Chowdhris and the Bhagats had been only sub-Jagirdars. The circumstance that the widows of Manog Bhagat were allowed to take possession of villages shows that Manog''s interest was not descendible to male heirs only. Assuming that the burden of proof was on the plaintiff, I hold that he has proved that the Chowdhris purchased the rights of the Jagirdars and that Manog purchased the rights of the Chowdhris I hold that the defendants have entirely failed 10 prove that the Chowdhris or the Bhagats were sub Jagirdars of the original Jagirdars. I be attempt to establish the existence of a baidari tenure as a kind of sub Jagir has signally failed. The word bai may be used loosely for a mukarrari as was said in one case, but that is a very different thing from using the word bai to indicate a sub Jagir.

I would allow these appeals and give the plaintiff a decree for possession in each case with mesne profits from the date of dispossession to the date of delivery of possession in execution or the expiry of three years from the date of this decision, whichever event first occurs, the amount to be determined by the Court below, I would also in each case give the plaintiff his costs in both Courts.

If this case is taken before a higher Tribunal the translation of the rubakars in the litigation which begau in 1840 should be carefully revised. It is extremely inaccurate in some places.

Saiyid Sharfuddin, J.

I agree.