Sonabati Kumari vs Kirtyanand Singh and others

Fazl Ali, J.—These five appeals arise out of a L.S. and four rent suits which were instituted by the proprietors of a large estate in Bihar known as the Banaili Raj (which includes now the ancient zamindari of Mahalat Kharagpur) against the present holder of a ghatwali property in the district of Santal Pargana known as the Handwe Raj. In the title suit, which is the suit with which we are principally concerned and in which the Secretary of State for India has been impleaded as defendant 2, there are broadly speaking two main questions to he determined and these may be stated as follows : 1. Whether the Handwe Raj is Government Ghatwali or a ghatwali subordinate to the Kharagpur estate, and 2. Whether the status of the holder of the Handwe Raj is that of a proprietor of an estate or that of a tenure holder under the proprietors of the Kharagpur estate. The rent suits were tried with the title suit because the defendant claiming Handwe to be an estate of which she is the proprietor raised the plea that the amount annually payable for that estate to the proprietors of the Kharagpur estate was not in the nature of rent but was Government revenue which instead of of being paid directly into the Government treasury was being paid through the Kharagpur estate. A further point is now raised in appeal before us and it is to the effect that certain arrears of cess, if not also of rent, which accrued in the time of the appellant''s husband and predecessor in interest, Kumar Satya Narain Singh, cannot be recovered from her because as successor to the office of ghatwal she is not liable for the debts incurred by the previous incumbent.

The question whether Handwe is a Government ghatwali estate or it is held in some capacity was raised on behalf of the ghatwals in two previous suits brought against them by certain mortgagees to neither of which the present plaintiffs were parties. It was first raised in the mortgage suit No. 363 of 1905 in which it was held by the Judge who tried the suit that Handwe was a Government ghatwali and therefore not liable to be sold except with the consent of the Government : see Ex. Z(1). The mortgagees appealed to the High Court, but before the adjudication of the appeal the parties compromised the case. Another mortgage suit (No. 2/16 of 1910) was instituted in 1910 by the Maharaja of Hetampur against the Handwe Raj and in this suit it was held by the trial Court that Handwe was not a ghatwali tenure but was an ordinary istimarari mukarrari tenure and as such transferable and saleable in execution of a mortgage decree. The High Court however came to the conclusion that Handwe was a Crown ghatwali and that as prior to the grant of the Dewani to the East India Company it was Moghul ghatwali the effect of the assumption of the Dewani by the East India Company was to convert the allegiance of the ghatwal from an allegiance to the Moghul Empire to an allegiance to the Company it was further held that although the property was in its origin a ghatwali tenure, yet as for a long time no ghatwali services had either been rendered or demanded and as no ghatwal had for many years been appointed, it was no longer held as a ghatwali tenure and therefore it was liable to sale in the execution of a mortgage decree. The matter was then taken in appeal to His Majesty in Council and the Judicial Committee of the Privy Council partly agreeing and partly disagreeing with the conclusions of the High Court dismissed the entire suit: Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5= 79 IC 825= 51 IA 7= 3 Pat 183 (PC). The important findings of the Judicial Committee are summarized in the written statement of the defendant as follows:

The instruments (of title relied on by the defendant) contain words of grant and support to make grants on behalf of and in the name of the East India Company. They must be so interpreted and this construction cannot be defeated merely because there may be ground for thinking that the grantees were already holders of these lands under earlier grants or on customary service terms. The tenure is therefore a Government tenure. 2. As the grants are expressed to be istimarari Mukarrari grants and as in fact the lands have for generations descended in the family of the defendant from ancestor to heir, they are a perpetual and hereditary tenure. 3. The tenure is a service tenure and is ghatwali in its nature. 4. A tenure so granted is inalienable and indivisible and cannot be sold in execution of a decree against the person of the incumbent of the office of ghatwal for the time being. 5. Neither by the terms of the grant nor by the general law applying to such ghatwali tenures is an actual appointment of the next heir to the ghatwali in the room of his predecessor requisite, nor is actual performance of the stipulated ghatwali services from time to time necessary. Readiness and willingness to perform them when required may be inferred where there is no proof of any refusal to perform and where performance within a reasonable time if required is not shown to have become impossible.

While the appeal was pending before the Privy Council, Survey and Settlement proceedings were in progress in respect of the greater portion of pargana Handwe (which consists of 13 taluks in all) and by his decision (Ex. 75) dated 14th July 1923 the Settlement Officer held that pargana Handwe was held in istimrari mukarrari tenure which was permanent, heritable and transferable; that it was a tenure included in, and subordinate to, the Kharagpur estate held on rent not liable to enhancement and that no ghatwali services were due either to the Government or to the proprietors of the estate. On 26th October 1923 the Privy Council delivered judgment in the mortgage action brought by the Hetampur Raj to which we have already referred. Meanwhile Kumar Satya Narain Singh having died, his widow Sreemati Sonabati Kumari (the appellant in this Court) filed an application against the decision of the Settlement Officer under S. 34 of Regulation 3 of 1872 claiming the taluks then in question as her zamindari property and possessing all the incidents of a Government ghatwali. This objection was decided on 8th September 1924, by the Settlement officer who declined to modify his previous decision and held once more that Rani Sonabati Kumari held the taluks neither as a zamindari nor as a Government ghatwali but as a permanent mukarrari tenure under Kharagpur, which was heritable as well as transferable (Ex. 77). In view of this decision the plaintiffs of the mortgage action of 1910 applied to the Judicial Committee of the Privy Council for a review of the order of His Majesty in or reconsideration of the appeal in the mortgage suit, but the application was dismissed on 16th December 1925 (Ex. Z(6). Meanwhile Shreemati Sonabati Kumari had appealed against the order of the Settlement Officer to the Commissioner of the Bhagalpur Division, and the learned Commissioner relying mainly on the judgment of the Privy Council directed the following entry to be made in the record of rights.

Proprietor: Sreemati Sonabati Kumari, widow of Satya Narain deceased. Under head incidents, the following will be recorded: Istimarari, Mukarrari, Government ghatwali, inalienable, hereditary indivisible. A note will be made that Government rent of the estate is paid through the proprietors of the Kharagpur estate: See Exh. 2(2).

Against the decision of the Commissioner the plaintiff moved the local Government by a memorial which was rejected on 2nd March, 1925, one of the reasons why it was not considered a fit case for revision being that a remedy was open to the petitioners by way of a suit in the ordinary civil Courts (Ex. 78). It was in these circumstances that the title suit (No. 8 of 1925) was brought by the plaintiff firstly for determination or the status held by the owner of the Handwe Raj in relation to the Kharagpuf estate, and secondly for correction of the entry in the record of rights. The plaintiffs after referring in their plaint to the history of Kharagpur and Handwe and some of the previous litigations between the parties and to the manner in which the Handwe proprietors have been treated in various official records, asserted that in the circumstances of the case

By the operation of the principle of resjudicata and estoppel and operation of the statutes of limitation the defendants are precluded from asserting that Handwe is independent of the plaintiffs'' zamindari.

The plaint concludes with a prayer for the following main reliefs: 1. That it be adjudged and declared that the plaintiffs 1 to 4 are the proprietors of the properties specified in schedule I attached to this plaint and that the said properties are not Government ghatwali mahals. 2. That all such questions concerning the relative positions of the said properties specified in Schedule 1 in pargana Handwe and Mahalat Kharagpur and the incidents, including the question whether the same is an ordinary Kharagpur ghatwali, and the rights and interest of the parties to this suit to the same may be determined by this Court. 3. That an order for correction of the entry in the record of rights be passed in such a manner as the Court may deem just and proper having regard to the fact that the said property in pargana Handwe specified in Schedule I is in reality a dependency Mahalat Kharagpur.

No appearance was entered by the Secretary of State nor was any written statement filed on his behalf. The present appellant however, who is the defendant first party, filed a long written statement traversing most of the allegations made in the plaint either by specifically denying them or by stating that they were not admitted. The gist of the appellant''s written statement is that Handwe is a Government ghatwali created in the first instance by the Moghul rulers and confirmed subsequently by the East India Company through their officer Captain James Browne and that the defendant is the absolute and sole proprietress of the Handwe estate; that the proprietors of Mahalat Kharagpur have no concern with the Handwe estate except as the medium for transmitting revenue into the Government treasury on behalf of that estate and that the entry in the record of rights correctly represents the defendant''s status. Reference is also made to a protracted litigation which lasted from 1810 to 1819 between Raja Kadir Ali, the then proprietor of Mahalat Kharagpur, and one Raja Jhaban Singh, an ancestor of the defendant''s husband, and it is claimed that the points decided in that litigation are res judicata between the parties and conclusive as to the relative position of the two estates. Lastly, it is contended that the plaintiffs'' suit is barred by the provisions of S. 25A of Regulation 3 of 1872.

While this suit was still pending four other suits were instituted by the proprietors of the Banaili Raj against the defendant for recovery of arrears of rent and cesses for the years 1328-29, 1330, 1331-33, 1335 Fasli. These suits were originally instituted at Dumka, but they were subsequently transferred to Bhagalpur. The written statements that were filed by the defendant in these suits were on the same lines as the written statement in the title suit and although the broad fact that the amounts claimed were due partly from the appellant and partly from her husband was not seriously challenged, various technical objections were taken to the maintainability of the suits and it was denied that the relationship of landlord and tenant existed between the parties and that the amount claimed was payable as rent.

As many of the points raised in these suits were identical with those raised in the title suit, the Subordinate Judge decided to try the five suits together, a course to which the parties consented. The Subordinate Judge framed no less than thirty issues in the title suit and a number of issues were also framed in the rent suits. Besides the two main issues, to which we have already referred issues were framed as to the effect of the permanent Settlement upon the claims of the parties to the proprietary rights in the Handwe properties as well as to the effect of failure on the part of the holders of Handwe to get the properties separated from mahalat Kharagpur and also as, to the pleas of res judicata raised by the parties, this plea being raised on behalf of the defendant with reference to the litigation of 1810-19 and on behalf of the plaintiffs with reference specially to a number of rent suits and a proceeding conducted in 1833 by a Special Commissioner, Mr. Ward, appointed under Regulation 8 of 1922. There was also an issue as to whether the plaintiffs'' suit was maintainable in view of the provisions of S. 25-A and Ss. 2 and 25 of Regulation 3 of 1872. Subsequently when some of the villages forming part of the Handwe estate were ex-eluded from the suit in view of the survey and settlement proceedings two new issues were added as to the legal effect of their exclusion. The several issues raised in the rent suits need not be referred to in detail as we are concerned in this appeal only with the questions to which reference has already been made. In framing the issues the learned Subordinate Judge did not confine himself to the broad questions raised by the parties but made certain subsidiary matters also the subject of separate issues. His main findings are as follows:

(1) That Handwe is not a Government ghatwali, but a ghatwali subordinate to the Kharagpur estate; (2) that the proprietor of the Kharagpur estate is also the proprietor of Handwe; (3) that the decision of Mr. Ward in 1833 is res judicata between the parties and concludes the controversy between them as to the proprietorship of Handwe; (4) that the decisions in certain rent suits though not res judicata operate by way of estoppel against the plea that the defendant is not a tenant under the plaintiffs; (5) that two settlements records, the first prepared by Mr. Wood and the second by Mr. McPherson are res judicata under S. 25, Regulation 3 of 1872; (6) that the final judgment pronounced in the litigation of 1810-19 far from operating as res judicata between the parties in favour of the defendant, decided that the holder of Handwe was subordinate to the Raja of Kharagpur. The decision however in the opinion of the learned Subordinate Judge deprives the proprietor of Kharagpur of his right to appoint a ghatwal of his own choice upon the death of any particular incumbent of the office ; (7) that the suit is not barred by S. 25-A, Regulation 3 of 1872; (8) that the consequence of an agreement entered into between the Government and Raja Lilanand Singh, the proprietor of the Kharagpur estate, in 1865 by which the Government relinquished its rights to take police service through the ghatwals was that the Handwe Raj could not thereafter be treated as a Government ghatwali although the agreement did not affect its other incidents; and (9) that although the right of the plaintiffs to demand ghatwali service from the defendant lapsed under Regulation 3 of 1872 as the plaintiffs and their predecessors never demanded ghatwali services from the defendants before 1859, nevertheless the ghatwali estate still retained its original incident of inalienability and it could not be transferred without the consent of the proprietors of Kharagpur.

In conformity with these findings the Subordinate Judge held in the rent suits that the amount payable by the defendant was rent and not revenue'' and he accordingly decreed both the title and rent suits in full.

It is not necessary in this appeal to deal individually with all the findings of the learned Subordinate Judge some of which relate to matters of minor importance arising out of the evidence adduced in the case. The substantial fact that we have to investigate is the relationship between the two estates, Handwe and Kharagpur, and for this purpose a brief reference to their previous history will be necessary. (His Lordship then referred to the history of the two estates Mahalat Kharagpur and Handwe and then to the several relevant documents which were exhibits. The judgment then proceeded to consider the prior litigation.) We shall now pass on the important litigation of 1810-1819 between Raja Qadir Ali and Raja Jhabban Singh of Handwe. It appears that upon the death of Raja Purandar Singh, Raja Qadir Ali asserted a right to appoint as his successor a person who was not his heir or even a member of his family and actually appointed first a man named Bhawani Singh and then another man Prasad Singh to perform the duties of ghatwal, but when in turn they went to take possession of the ghatwali villages Jhabban Singh drove them away. This led to a criminal proceeding in which apparently Raja Qadir Ali was referred to the civil Court and therefore brought a suit against Jhabban Singh. He asserted that the practice obtaining in his zamindari and family was that whenever any person wished to obtain a sanad of appointment as ghatwal of any mahal appertaining to his zamindari, he made an application offering the existing or a higher rent. He claimed the right to appoint and replace ghatwals of the villages which were included in his zamindari; and prayed for possession to enable him to appoint another ghatwal from whom he would take an enhanced rent. In the appellate Court he asserted that the grant of Captain Browne was to seven ghatwals besides Subhao Singh, in point of fact it was to more than seven, that Subhao Singh''s ancestors had paid rent to him at varying rates and that the other ghatwals were still paying rent at varying rates. In resisting the suit Jhabban Singh relied on Captain Browne''s patta and Mr. Dickinsons'' parwana and asserted that his ancestors had enjoyed the status of malik and zamindar at a fixed rent for several hundred years. With reference to the sanad of Warren Hastings to Raja Qadir Ali he stated that

When in 1168 Fasli (1760-81) the settlement of mahal Kharagpur with the plaintiff was taken up the plaintiff put in an assessment daul (vide Ex. 88), that is to say an application for goshwara settlement with him; that the settlement of pargana Hand we, the milkiat zamindari of the defendant, and that of Chandwe Prasad, the milkiat zamindari of Rup Narain Deo (the son of Jagernath Deo of Lachhimpur of whose insurrection Captain Browne gave an account in his India Tracts), were under the patta bearing the signature of the said Captain allowed to stand good.

He also stated that the revenue previously used to be paid by him directly into the Government Treasury and alleged that owing to the insecurity of the route from Hand we to Bahgalpur he was afterwards ordered to pay it through the zamindar and had been so paying it from 1781 onwards. He further asserted that on the death of Purandar Singh he had entered into possession of his estate in due course and that there was no necessity for him to obtain any sanad from Baja Qadir Ali. The Judge accepted the defence case almost in its entirety and dismissed the suit. The reasoning to be found in his judgment Ex. 5 (2) is at places some what obscure and difficult to follow, but the net result of the decision was that the defendant and his ancestors had been for a long time zamindars and mukarrari istimraridars with the title of Baja of pargana Handwe; that they were in possession of the zamindari milkiat and istimarari mukarrari right at one and the same jama and that the ancestors of the defendant had never been appointed to the post of ghatwal by the plaintiff. The Judge added:

The plaintiff has not filed any kabuliyat or application bearing the signature of Raja Subhao Singh or Raja Purandar Singh with regard to the payment or rent at the jama or at a higher jama than that specified in the mukarari patta.

It is important to remember this observation because in the present litigation Exs. 130 and 133 have been filed on behalf of the plaintiffs and they are claimed to be copies of such kabuliyats. Against the decision Raja Qadir Ali preferred an appeal to the Provincial Court at Murshidabad, but the appeal failed and the judgment of the trial Court was upheld. The judgment of the appellate Court Ex. 5 (1) is clearer and its reasoning seems to be more in accord with documents relied upon by Jhabban Singh. What was emphasized by the appellate Court was that it had been made clear by the documentary evidence produced on behalf of Jhabban Singh that the disputed property was his ancestral property and had been held by him in istimarari mukarari right and that there was no evidence that the annual jamaat in which the property was held had ever been varied. The appellate decision turned mainly upon the heritable character of the tenure and the fixity of the jama, these considerations being sufficient to meet the claim of Raja Qadir Ali both as to his being entitled to appoint a ghatwal of his own choice and to demand an enhanced rent for the tenure. The judgment however concluded as follows:

Regard being had to all these doubts and grounds set forth in the judgment of the Judge this Court finds the judgment of the said officer on the grounds mentioned therein consistent with justice.

The appellant''s contention is that this concluding paragraph in the judgment of the apellate Court clearly indicates that the findings of the trial Court were upheld in their entirety. Before we proceed to discuss the effect of these judgments upon the claim in the present case it may be mentioned here that in the appellate Court Raja Qadir Ali filed additional documents, some of which have already been referred to, but they were not considered by that Court to be reliable. Nor did the Court rely upon a report (Ex. 98) sent by the Collector of Bhagalpur in 1816 in reply to certain questions addressed to him. A similar report (Ex. 97) had been submitted by the Collector to the District Judge in 1810 in response to a reference made by the Judge. Ex. 97 simply states that Handwe is the milkiat zamindari of Raja Qadir Ali, but Ex.98 is more detailed and reproduces the questions which were required to be answered along with the answers there to. The following matters are stated in this report: (1) that excepting the ghatwal of Chandwe Passae (Lachmipur) all the ghatwals and mukarraridars used to pay their rents to the Raja of Kharagpur and had remained obedient and loyal to him; (2) that Raja Qadir Ali had filed certain statements (the statement for the year 1195 Easli being evidently the one of which Ex. 137 is a copy) about ghatwali tenures of his zamindari in the collectorate and in those statements he had noted the changes of office of the ghatwals; and that the power of appointing and dismissing the ghatwals of the Kharagpur mahals rested with the Raja; and (3) that when upon the death of Subhao Singh Purandar Singh had been appointed as his successor, the fact was simply noted in the statement of ghatwali villages for 1195 Fasli, but no trace of any separate intimation of the succession by way of a petition could be found in his office.

The question as to the effect of the judgment of the provincial Court upon the present litigation has been argued at great length before us. It has been urged on behalf of the appellant that while upholding the decree of the trial Court, the appellate Court has confirmed all the findings of that Court including the finding that Jhabban Singh was the zamindar and malik of Handwe and it is contended that the decision has established once for all the status of the ghatwals of Handwe and that of proprietors of an estate independent of the Raja of Kharagpur. According to the respondents on the other hand all that was decided in the suit was that Handwe was held in istimarari mukarrai right and that Qadir Ali was not entitled either to enhance the rent or appoint a new ghatwal in a capricious or an arbitrary manner or demand an enhanced rent from the successor of the last ghatwal. It is further urged that no question of res judicata can arise because the respondents derive their title from purchasers at a revenue sale and therefore cannot be deemed to be successors in interest of Qadir Ali. It is contended that the auction purchasers acquired all the right which the Crown had conferred on Qadir Ali at the time of the Permanent Settlement and consequently they are not affected by subsequent judicial decisions against Qadir Ali in respect of any of those rights. As at the time when the litigation took place the pleadings as well as the judgments were couched in somewhat loose and obscure terms and it was not the practice to frame issues, particular care is needed in order to ascertain what precisely were the matters which were required to be decided and were in fact decided. We have examined the judgment closely with these considerations in mind and the conclusion we have reached is that it was decided in clear and express terms that as Jhabban Singh held the property under an istimarari mukarrai patta he could not be ejected and that the rent being fixed was not liable to enhancement; that it was also found by the trial Court that the defendant possessed milkiat and zamindari rights in paragana Handwe and that this finding was not set aside or ignored but was confirmed by the appellate Court.

On the question whether this decision is now res judicata the following authorities were cited before us on behalf of the respondents in support of their contention that as heirs and successors in interest of purchasers of the Kharagpur estate at a revenue sale they are not bound by decisions against the former holder because they do not claim under him but under a different title; Lukmeer Khan v. Collector of Rajshahee, 7 Suddar Dewani Adalut Rep. 116; Rampersad v. Chaudree Sheosuhye, 7 Suddar Dewani Adalut Rep. 625; Babu Prossanno Coomar v. Gobind Nath Gupata, 7 Suddar Dewani Adalut Rep. 731; Moonshee Bazlool Rahman v. Prandhan Dutt, (1867) 8 WR 222; Raja Satyasaran Ghosal v. Maheah Chandra Mitter, (1869) 2 Beng LR 23 = 12 MIA 263 = 11 WR 10 (PC); Kooldeep Narain Singh v. The Government of India, (1870) 14 MIA 247 = 11 Beng LR 71 = 2 Suther 491 = 2 Sar 734 (PC); A.J. Forbes v. Meer Mohammad Hossain, (1874) 12 Beng LR 210 = 20 WR 44 (PC); Naravan Das v. Jatindranath, 1927 PC 135 = 102 IC 198 = 54 IA 218 = 54 Cal 669 = 31 CWN 965 (PC); Radha Gobind Kuer v. Rakhal Das, (1886) 12 Cal 82; Jobeda Khatun v. Tilsi Charan Das, 1923 Cal 82 = 77 IC 564 = 36 LJ 472; Jugeshwar Prasad v. Ramdhari Mahto, 1933 Pat 548 = 148 IC 1109 = 12 Pat 820 = 14 PLT 673; Gadadhar Bose v. Radha Charan Poddar, (1907) 34 Cal 868; Nakul Chandra Barua and Others Vs. Sasti Charan Biswas, and Sashikanta Acharya v. Sarat Chandra Rai, 1921 Cal 699 = 70 IC 6 = 34 CLJ 415. On the other hand reliance was placed by the appellant on Boykuntnath Chatterjee v. Ameeroonissa Khatoon; (1865) 2 WR 191; Tara Pershad Mitter v. Ram Nursingh Mitter, (1870) 14 WR 283= 6 Beng LR App 5 and Katama Natchier v. Moottoo Yijaya Raganadh, (1861-63) 9 MIA 539. The contention on behalf of the appellant is that in certain cases the purchaser of an estate at a revenue salemay be bound by a decision obtained against the previous holder of the estate upon the principle that the previous decision was obtained not merely against the holder for the time being, but against the estate which was fully represented.

From a review of the authorities cited two principles emerge which may be taken to be well settled: (1) that an auction purchaser at a revenue sale of a permanently settled estate is remitted to all the rights possessed by the original settlor at the date of the settlement and may take advantage of that position to sweep away or get rid of all the intermediate tenures and encumbrances created by the preceding zamindar since that date; see A.J. Forbes v. Meer Mohammad Hossain, (1874) 12 Beng LR 210 = 20 WR 44 (PC); and (2) that such a purchaser does not claim title through the defaulting proprietor, but what passes to him in law is the interest of the Crown subject to the payment of the Government assessment : see Suraj Kant v. Sarat Chandra, 1914 PC 82 = 25 IC 309 = 18 CWN 1281 (PC) and Naravan Das v. Jatindranath, 1927 PC 135= 102 IC 198= 54 IA 218= 54 Cal 669= 31 CWN 965 (PC). These propositions are the necessary corollaries of a series of enactments among which may be mentioned S. 5, Regulation 44 of 1793; S. 5, Regulation 50 of 1805; S. 24, Regulation 5 of 1800; S. 29, Regulation 11 of 1822; and S. 37, Act 2 of 1859. S. 29, Regulation 11 of 1822 which was in force at the time when the respondents'' ancestors purchased the Kharagpur estate at the revenue sale is very clear on the point and runs as follows:

In the case however of an estate being Fold for the recovery of any part of the revenue assessed upon it, since the act of sale transfers to the purchaser all the property and privileges which the engaging party possessed and exercised at the time of settlement, free from any accidents or incumbrances that may subsequently have been imposed or have supervened thereupon such as sale, gift, or other transfer, mortgage, marriage settlement, or other assignment, or the like, the property and privileges possessed and exercised as aforesaid, being perpetually hypothecated to Government, for the revenue assessed thereon, no claim or right founded on any act of the original engager or his representative, or any plea impeaching the title by which the said engager may have held, shall be allowed to impugn the right of the revenue authorities to make the sale, or to bar or affect the title and interest conveyed to the purchaser by the sale.

From the mere fact therefore that the purchaser of an estate for arrears of revenue does not claim through the defaulting proprietor it logically follows; that any decision that may have been obtained against the previous proprietor would not affect the title of such a purchaser. Thus there are direct authorities on the subject of res judicata which seem to support the contention of the respondents that whatever matters, may have been decided in the litigation, of 1810 between Qadir Ali and Jhabban Singh they cannot be deemed to be res judicata as between the present parties. It is however urged on behalf of the appellant that we should not overlook the principle which has been enunciated in a long line of cases that a decree obtained against a widow may, if it was obtained after a fair contest and without any fraud or collusion, bind a reversioner on the ground that the estate was for the time being represented by the widow.

The enactments to which we have referred merely provide that the purchaser at a revenue sale shall be remitted to all the rights of an original settlor at the time of the Permanent Settlement. Prima facia it seems permissible to argue that such decrees as merely decided what rights were possessed by the actual settlor at the time of the permanent settlement should also bind the purchaser at a revenue sale as otherwise there may be no finality in any litigation regarding land which happens to be within a revenue paying estate. Unfortunately however the principle relied upon by the appellant has never been applied to the case of an auction purchase at a revenue sale and as we are bound by the authorities which have been cited on behalf of the respondents we must hold that the decision arrived at in the litigation between Qadir Ali and Jhabban Singh will not operate as res judicata between the present parties. The fact however remains that though the plea of res judicata fails, yet as the Courts dealing with the dispute between Qadir Ali and Jhabban Singh had fuller materials before them, their decision cannot be entirely overlooked. Indeed whatever the legal effect of that decision may be it had a marked effect at least for sometime not only upon the conduct of the parties but also upon the official attitude towards them.

We find for instance that in Ex. K, a list of ghatwals of Kharagpur prepared by a Collector in 1226 Fasli (1818-19) the name of Jhabban Singh and the parganas which were in his possession are not mentioned. In 1816 Jhabban Singh objected to his being described as the mere possessor of a ghatwali mukarrari and pointed out that his predecessor in interest Purandar Singh used to be designated Raja, zamindar and mukarrari istimraridar" (vide his petition to the Collector, Ex. P). Again in a petition (Ex. 141) filed by Jhabban Singh on 14th May 1819 after referring to the result of the judgments of the two Courts in the litigation of 1810-19 he asserted that pargana Handwe was his ancestral zamindari and istimarari mukarrari property and asked the Court to send copies of the judgment to the Board of Revenue so that they might be given effect to and he might be allowed to pay the revenue of Handwe separately to the Collector. This petition was dismissed--whether after contest or without any contest we do not know. Again, in a petition Ex. 101, Maharaja Rahmat Ali on 13th February 1832, stated that emboldened by the decision, Jhabban Singh had not been paying the rent which was justly due by him. Indeed in a report which was sent by Mr. Ward in November 1833, with which we shall presently deal, he notes that the Handwe tenure is now enjoyed by Jhabban Singh rent free.

We come next to an important proceeding (vide Ex. 7) which is greatly relied upon by the respondents as containing a decision final and binding as res judicata with regard to the question of the ownership by the Raja of Kharagpur of the proprietary rights in Handwe. The proceeding was initiated under Regulation 5 of 1825 which provides that whenever a Collector is of opinion that any tract of land belongs to the Government and that no person has bona fide possession of it, he may by a notification to be posted in his office require all claimants to the land to appear before him within a reasonable time and on the appearance of such claimants proceed to investigate their claims in the manner prescribed by Regulation 11 of 1819. It is also provided that if the Collector shall decide that none of the claimants has bona fide possession of the land in question, then subject to confirmation of the of the decision by the Board of Revenue, the land shall be at the disposal of the Government until it shall be adjudged to be private property by the decree of a Court in a regular suit. A proceeding under these provisions was instituted in respect of certain lands which were claimed by the Government to appertain to a tract called the Damin-i-koh and to have been excluded from the settlement with zamindars, as Mr. Ward, to whose report on ghatwali tenures in the district we have referred, was appointed special commissioner to deal with the matter. Notices were served on Maharaja Rahamat Ali of Kharagpur and Jhabban Singh, and in the case that was instituted the Government was treated as the plaintiff and these two persons as defendants. The question for decision was whether the lands were included in Sarmi, a pargana of Handwe or not. Mr. Ward''s procedure was to decide first whether Jhabban Singh or Maharaja Rahamat Ali was the proprietor and zamindar of Handwe. He held upon a personal of the report sent by the Collector and certain papers in the Collector''s office that Maharaja Rahamat Ali was the proprietor of. Handwe and that Jhabban Singh held that pargana only in lieu of service as ghatwal. Having decided this issue in favour of Rahmat Ali and taking the written statement of the Maharaja to mean that the boundary lines of the Domin-i-koh as fixed by the Government were admitted to be correct, be found that the disputed area belonged to the Government. Mr. Manuk''s contention is that there was a distinct issue in this proceeding as to whether Maharaja Rahamat Ali or Jhabban Singh was the proprietor of Handwe and the decision arrived at by Mr. Ward must be held to be res judicata between the parties. We are however unable to accept this contention. It is well settled that the decision of an issue is res judicata only when the issue arose directly and not incidentally having regard to the subject matter of the particular suit or proceeding. Now, the main question that Mr. Ward had to decide in this proceeding was whether the disputed area appertained to the permanently settled mahal of Sarmi or was outside it. If it was included within Handwe then the Government evidently could have no claim to it.

If on the other hand, it was not included within that pargana, then whether Handwe belonged to Jhabban Singh or to Rahamat Ali the Government was entitled to take possession of it and to make it the subject of a fresh settlement. It is thus clear that the question whether the disputed land appertained to Sarmi or not was a matter to be decided upon evidence or upon local measurements and not upon the result of the inquiry as to which of the two claimants was the proprietor of Handwe. We do not suggest that it was not open to Mr. Ward to frame such an issue but in our opinion the issue being incidental, Mr. Ward''s decision upon it cannot make it res judicata. We therefore do not agree with the view taken by the lower Court in this matter but at the same time we recognise that the decision of Mr. Ward is a piece of evidence under S. 13, Evidence Act, to which some weight must be given in the determination of the status of the two estates in relation to each other.

We shall now deal with another important document Ex. 7 (a), a report submitted by Mr. Ward on 18th November 1933, regarding the tenures under which the ghatwali lands in the district of Bhagalpur were held. It appears that in 1819 an officer of the Government recommended an inquiry of this kind with a view to improvement of the efficiency of the ghatwali institution, the settlement of differences between the ghatwals and the zamindars and the removal of the ghatwals from the control of the zamindars to the control of the Government. The Government was averse to adopting this proposal without being in possession of more information regarding the origin of the institution which therefore Mr. Ward was required to investigate. If after the investigation he should consider a formal inquiry expedient, his opinion was asked as to the rules under which it should be conducted with particular reference to Regn. 29 of 1814 by means of which the relations between the ghatwals and the zamindars had been settled in Birbhum. He found the ghatwals of Bhagalpur to be of two descriptions : (1) those created by grants of feudal tenures from zamindars within whose estates they were situated and to which they were appendages. These were called jungle Terai ghatwalis; (2) those held under grants originally assigned by the Mohammadan Government and expressly exempted from the payment of revenue to support a line of police posts under the Raj Mahal line of hills for the protection of the lowlands from incursions of the hill tribes and conferment by the British Government on its accession to the Dewani. The ghatwals of this description we designated chukibandi ghatwals.

The ghatwals belonging to the first category were to be found according to Mr. Ward in Kharagpur, Chandan and other mahals belonging to the Kharagpur estate. So far as he had been able to trace the origin of these tenures, he could not discover that they differed in any way from those of the same name in the district of Birbhum. He stated that it could not be doubted that these tenures were dependent on the zamindars, had always been considered as appendages to the estate in which they were situated and though hereditary were subject to the authority of the zamindars, to the payment of rent in token of feudal obedience and to other conditions of service specified in the grants. Mr. Ward then proceeded to state that gradually the authority of the Raj as to whom service was first rendered declined and the ghatwals threw off their allegiance to the Rajas. He gave an account of the history of Hand we and concluded that it was held from the Raja of Kharagpur, "in like manner and under precisely the same tenure as that of Lachmipur" which had been separated from Kharagpur on the recommendation made by the Saddar Dewani Adalat in 1809 in Rupnarain Deo v. Raja Qadir Ali, 1 Select Report 376. According to Mr. Ward grants to successors to the ghatwali tenure were renewed during the Mahomedan Government by the Raja of Kharagpur, but on the acquisition of the Dewani, Sanads were issued immediately from the Government. His authority for this statement was the grant of the Sanad Ex. 1 in 1776 by Captain Browne and the subsequent parwana of Mr. Dickinson, Exhibit J. He then dealt with the Decennial Settlement and the effect of the litigation between Jhabban Singh and Raja Qadir Ali, his view of that suit being that it did not appear to have been brought for recovery of possession of the pargana but the payment of enhanced rent. His conclusion was:

The tenure under which the jagir is held can only be considered ghatwali subject to the payment of a certain fixed rent, and other conditions of service, but claimed by Jhabban Singh as a zamindari for which no revenue has been paid since 1828.

On the subject of another ghatwali in Toppa Dhumsain, Mr. Ward stated :

In the Kharagpur jagir the whole of the ghats have from the first been under the control of that zamindar and of the Chief of Hand we

Mr. Ward then stated that the tenures, so far as the interest of Government was concerned, were sufficiently defined to remove all doubt of their forming a part of the zamindaries and of their having been included in the assessment in the Decennial Settlement, situated as they were in the parganas that were recorded in the engagements of the zamindars as assessed at that time. He finally recommended adoption of the same proceedings as led in the District of Birbhum to the enactment of Regulation 29 of 1814. The bearing of this document upon the case is that it is an exposition of the official view as to the status of Handwe and that it accepts as an historical fact the feudal subordination of the ghatwals to the Raja of Kharagpur before the accession of the East India Company to the Dewani.

Sometime about 1336, the Government started proceedings to resume the ghatwali tenures in Kharagpur, but before this topic is dealt with, it should be mentioned that the entire Kharagpur estate was sold at a public auction for arrears of revenue on 29th July 1840 and purchased by the ancestors of the plaintiffs and one Bala Nath Sahu, who subsequently transferred his interest to the former. The respondents have filed a large number of documents relating to the sale and the delivery of possession that followed and the mutation proceedings by which the plaintiffs'' ancestors were recorded in the Collector''s register as proprietors. The documents specifically referred to on behalf of the respondents are Exs. 14, 15, 104, 151, 153 and 23. Ex. 14 is a report forwarded by the Collector to the Commissioner in which he deals with a number of objections raised by Maharaja Rahmat Ali as to the validity of the revenue sale. In one of the paragraphs of this report the Collector dealing with a grievance of Maharaja Rahamat Ali that the ghatwals of Handwe had been negligent in paying rent to the Maharaja, points out that Handwe with other dependent ghatwal was included in the settlement of Kharagpur and adds:

If the ghatwal of that place neglected to pay the rent to the Maharaja, the door of the Court was open for it.

Exhibit 15 is the rubkari of the Commissioner of Bhagalpur by which the sale was confirmed, Ex. 104 is a record of certain notes and orders passed in connexion with the delivery of possession of the Kharagpur mahals and contains a list of parganas in respect of which the proclamation of sale and the writ of delivery of possession were issued. The thirteenth item in this list in pargana Handwe. Ex. 143 is the sale deed executed by Bala Nath Sahu, one of the auction purchasers, in respect of the two annas share purchased by him in favour of Raja Bidyanand Singh Bahadur who is described therein as the proprietor and zamindar of the fourteen annas share of pargana Sahroi, etc., mahals Kharagpur. Ex. 151 is the petition of Raja Bidyanand for the mutation of his name in respect of two annas share in pargana Sahroi purchased by him from Bala Nath Sahu. Ex. 153 is the report of the record-keeper regarding the revenue of the two annas share with the order of the Collector directing that the name of Bidyanand be mutated. Ex. 23 which strictly speaking is not a document connected with the revenue sale, is the order of the Collector directing the name of Lilanand to be recorded in respect of Sahroi, etc., mahals Kharagpur, including paragana Handwe, on removing the name of Bidyanand deceased in 1850. There can be no doubt on a perusal of these documents that the estate, sold included pargana Handwe and the writ for delivery of possession purported to give possession of the entire mahalat Kharagpur including pargana Handwe to the auction purchasers.

According to the respondents the revenue sale must be regarded as having completely terminated all claims that the predecessors of the appellant may have had to the proprietorship of Handwe, particularly as no steps were taken by the Handwe Raj either in the revenue Court under Regulation 11 of 1822, which was the revenue sale law then in force, or in the civil Court to have the sale set aside or to assert that their proprietary right was not affected thereby. We think however that in this matter the learned counsel for the respondents is placing his sale too high, We referred to S. 29, Regulation 11 of 1822 when dealing with the question whether the respondents whose ancestors were the auction purchasers of mahalt Kharagpur at the revenue sale of 1840 are bound by the judgments delivered in the litigation of 1810. We need only state here that as we read that section we find nothing in it to justify the view that if the ghatwals of Handwe had any proprietary rights in pargana Handwe prior to the revenue sale, such rights would come to an end in consequence of the revenue sale. It is to be remembered that in this case the appellant does not base her title upon any act of the "original engager or his representative," that is to say of Raja Qadir Ali or his successors, but upon a direct grant made by the East India Company as representing the sovereign power in favour of her husband''s ancestors Raja Subhao Singh and others. All that S. 29, Regn. 11 of 1822, lays down is that as a result of the revenue sale the purchaser will acquire all the proprietary rights and privileges which the engaging party possessed and exercised at the time of the settlement free from any accidents or incumbrances that may subsequently have been imposed or have supervened thereupon. It follows therefore that whatever status Raja Subhao Singh is held to have possessed at the time of the Permanent Settlement, the same status must have continued to be held by his descendants and it was not affected by the revenue sale. Further if the consequence of the inclusion of Handwe in the Kharagpur estate was to make Handwe a dependent taluk, that relationship between the two estates inter se must be deemed to have continued even after the revenue sale. What was the effect of the inclusion of Handwe in Kharagpur at the time of the permanent settlement is a question which we shall discuss later.

We now come to the proceedings taken by the Government for resumption of the ghatwali tenures of the Kharagpur estate. It will be necessary to give an account of these proceedings in some detail, for it is one of the main contentions the respondents that even if it be taken to have been established that Captain Browne''s grant created a Government ghatwali, it became a Kharagpur ghatwali in consequence of an agreement made between the Government and the proprietor of the Kharagpur estate after the attempt to resume the tenure had failed. (After referring to these proceedings his Lordship held that the agreement between the Government and Raja Leelanand Singh did not in any way alter the character of the appellant''s tenure. The judgment then proceeded). We shall now give an account of the history of some of the component parts of the Handwe grant and also of a number of ghatwalis of the Kharagpur estate in respect of which documents have been exhibited by the plaintiffs.

The appellant is not in possession of all the taluks of Handwe covered by Captain Browne''s grant a list of which is given in the contemporaneous daul (Ex. 1). We have already stated that the daul shows how the parcels of land comprised in the grant each with a separate assessment of rent, were distributed among thirteen ghatwals. It appears from Mr. Dickinson''s parwana of 1794 (Ex. J.) that Purandar Singh had inherited the taluks of his uncle Raja Subhao Singh and of Udit Singh and that he had acquired the shares of Gopal Singh, when Gopal Singh owing to his inability to pay the rent surrendered his share to Prandar Singh, receiving maintenance in lieu of it. At a later date a descendant of Subhao Singh acquired Bishunpur which according to the daul was the share on Nihal Naik. The date of the acquisition is not known, but it was earlier than 3841 for in the judgment of the resumption proceedings of that year regarding Bishunpur (Ex. 18) Raja Madho Singh, the son of Jhabban Singh, was found to be in possession of it. Bishunpur however is not one of the properties included in the plaint either originally or after it was amended and it is not known in whose possession it is now. The Raja''s statement of the year 1787 regarding ghatwali villages (Ex. 137) indicates that all except ten bighas of Bishunpur had been retained khas by the Raja and that the ten bighas had been settled with the successor of the original grantee. The defendant is in possession of the share which the daul gave to Kesri Singh, but the record contains no information as to how her ancestors obtained it. We know that it was in the possession of Udit Narain Singh, the grandson of Jhabban Singh, in 1879, for in that year it was included in the properties in respect of which he applied for mutation of his name under the Land Registration Act : vide Ex. Q.

The properties of the other original grantees seem to have been treated by all the parties concerned as ghatwali tenures subordinate to the Kharagpur estate. There are documents which show what happened to the shares which had been allotted to Babu Lal Singh, Bishun Singh, Baijnath Singh, Fateh Singh and Udesi Panda. Taluk Kesari, which fell to the share of Babu Lal Singh, a member of Sudhao''s family, was sold in 1902 (Ex. 54) in execution of a civil Court decree and in 1912 the proprietors of the Kharagpur estate instituted a suit against the purchasers of the tenure for recovery of possession of it on the ground that being a ghatwali it was inalienable without the proprietor''s consent. By a compromise the proprietors recognised the transfer in consideration of a payment to them of a sum of nearly Rupees 12,000 agreeing that thereafter it would be treated as a permanent transferable stimuli mukarrari tenure. Khaira also, which the daul shows to have been the share of Bishun Singh, another member of Subhao''s family, was sold in execution of a decree in 1857 (Ex. 27). Belguma Khurd allotted to Udesi Panda by the daul was acquired by Subhao Singh''s heir, as we have already stated, but it is not now claimed to be a part of the Handwe ghatwal of the appellant. Beldiha was the share allotted to Fateh Singh, the brother of Bishun and Udit. In 1817 Fateh''s grandson presented a petition (Ex. 140) to the Collector stating that with the approval of Raja Qadir Ali his father had been put in possession of the property and complaining that Jhabban Singh was instigating his father and his younger brothers not to pay the rent to the Raja of Kharagpur. He also asserted that he possessed a sanad which had been granted by Qadir Ali. It appears from Mr. Macpherson''s report on the Survey and Settlement Operations in the Santal Parganas that Beldiha and also taluk Eksingha allotted by the daul to Harlal Datt had been sold in execution of decrees. A subordinate or darmukarri interest of village Kasba in one of the taluks allotted to Subhao Singh, which interest therefore must have been created by an ancestor of the defendant, was sold in execution of a decree in 1920 (Ex. 70). The dar mukarraridars were kayasthas and the purchasers were Marwaris. Thus the respondents have been able to show that interests which were covered by the original grant made by Captain Browne (Ex. 1) have been treated by the proprietors of the estate and the ghatwals concerned as subordinate tenures of the estate and it is a fact also that the rents payable in respect of those interests have been deducted from the rent fixed by Captain Browne.

The daul is described as being statement of settlement with istamrari mukarraridars of the entire pargana Hand we, but in fact it did not include the whole pargana. Four taluks, Kamardiha, Sahra Mahra, Jhopra and Karmau, which are Within the pargana, were omitted from the grant. There are documents which show that grants of these taluks also were made by Captain Brown. The ghatwal of Kamardiha stated in a petition to the Collector in 1817 (Ex. 99) that after the zamindari of Kharagpur had been restored to Qadir Ali, he and all the other ghatwals who had obtained pattas from Captain Browne presented themselves to the Raja who, he said, had always had the power of granting pattas and dismissing and appointing ghatwals, and obtained fresh pattas from him on reduced or increased jamas fixed in accordance with the income of the tenures. The judgment or the resumption proceedings regarding Kamardiha (Ex. 11) shows that a copy was produced of a sanad granted by Qadir Ali to the ghatwal of this taluk subsequent to the sanad of Captain Browne. It appears from a report of the Collector to a criminal Court (Ex. 154) that his son also obtained a sanad from the Raja by which the rent was enhanced and that in 1842 the ghatwal made an application, which was disallowed, to have the property separated from Kharagpur. A judgment of an Assistant Commissioner in 1858 (Ex. 28) refers to a fresh Settlement of the property that had been made in 1855 with a woman and contains a statement that on her failure to pay the rent the proprietor had resumed the tenure.

The remaining taluks of Handwe, namely, Sahra Mahra, Jhopra and Karman, seem to have been the subject of a single grant by Captain Browne. It is stated in a report made by the Collector''s record keeper (Ex. 102) that Sahra Mahra and Jhopra were granted as mukarrari by Captain Browne in 1777 and that after the death of the grantee his successor obtained a fresh sanad from Qadir Ali by which the rent was increased. The decisions in 1854 (Exs. 24 and 25) of suits brought by the plaintiffs'' ancestors, the descendant of this ghatwal, show that Captain Browne''s sanad included Karman and so also did the later sanad of Qadir Ali. The suits were for recovery of possession of the taluks on the ground that after the auction purchasers had acquired the Kharagpur estate the defendants did not appear before them and were not complying with the terms of their sanad. The suits were decreed and the proprietors of the estate obtained possession of the properties.

The Kharagpur ghatwalis outside the parganas of Handwe in respect of which evidence has been given are those of Jamuni Harnapur, Kakwara, Chandan and Chandwe Dassae. Jamuni Harnapur was a large property consisting of 110 villages and furnishing a force of 500 men as compared with 121 villages and 307 men in the case of Handwe grant. The purchasers of the Kharagpur estate stated in the resumption proceedings relating to this property (Ex. 16) that the grant had been made by Captain Browne to Rani Sarbesari and that in 1783, by order of the Governor General in Council, she was deprived of her zamindari, which was pargana Sultannabad, and also of the ghatwali which Qadir Ali was directed to settle with some one else. The settlement record (Ex. F. 2) describes Jamuni Harnapur as istimarari mukarrari tenure and transferable and shows it to be in possession of persons belonging to the Bania caste.

The purport of Captain Browne''s sanad of the year 1777, in respect of Karwara is given in Manoranjan Singh v. Leelanand Singh, (1865) 3 WR 84. Like the sanad in the present case it was addressed to persons in the character of Ghatwals and was taken to have been rather the confirmation of an existing tenure as mukarari istimarari on a stated jama besides rasum akrajat etc., At about the time of the Permanent Settlement a grant in almost the same terms was made to the ghatwal by Qadir Ali. It was not disputed in that case that it was a ghatwali tenure of the Kharagpur estate although the proprietor''s suit for eviction of the ghatwal failed for other reasons. In Leelanand Singh v. Manoranjan Singh (1877) 3 Cal 251 it was held that the ghatwali was a dependent taluk the rent of which the proprietors had not the right to enhance. A copy of the sanad (Ex. 84) purporting to have been granted by Qadir Ali to the ghatwal of Kakwara in the year 1780 had been exhibited in that case.

Pargana Chandan is stated in the judgment of the resumption proceedings (Ex 10) relating to it to have been granted by Captain Browne in 1777 and to have been regretted to the successors of the original ghatwal by Raja Qadir Ali in 1207 A.H. on a reduced rent, and it is stated in the report of Mr. Word (Ex. 7 (a) that the subsequent holder was also installed by the Raja. In Tikayat Jugmohan Singh v. Leelanand Singh, 13 Sudar Dewani Adalat Rep 813, it was held in 1857 that the tenure was liable to be resumed by the proprietor either on the dismissal of the ghatwal for neglect of duty or when the performance of the service for which the tenure was created ceased to be necessary The proprietor obtained possession of the tenure in consequence of this decision, and it is now an ordinary mukarrari tenure of other persons.

An account of the ghatwali of Chandwa Passae also called Lachmipur is given in Captain Browne''s India Tracts to which we may briefly refer once more, When Muzaffar Ali rebelled against the Moghul Government Lachman Deo, from whom Lachmipur derived its name, refused to assist him and after an attempt by Muzaffar Ali to coerce him bad failed, he established this independence. He was succeeded in 1755 by his adopted son Jaggannath Deo. Mir. Kasim, the Nawab of Murshidabad, after imprisoning Muzaffar Ali in 1761 or 1762 and sending an amil to collect rents failed to subjugate Jagannath but persuaded him to agree to pay tribute to the Government of a larger amount than he had paid to Muzaffar Ali. Evidently be was subdued by Captain Brooke whose attempt to break the feudal system then prevailing caused an in surjection of ghatwals under the leadership of Jagannath Deo. Captain Browne reduced him to submission and on Captain Browne''s recommendation his properties were given to his son in 1776 by asanad of the Governor General in Council fixing a revenue of Rs. 7,291 exclusive of zamindar resum, etc. In 1805 Qadir Ali brought a suit in the zilla Court for recovery of the zamindari resum. The ghatwal pleaded in his defence that his tenure was not dependent on the Raja''s zamindari but was held directly under the Government by virtue of the Governor General''s sanad. He admitted having executed an agreement binding himself to pay rasum to the Raja but alleged that it had been obtained from him by force. The Zilla Judge decreed the suit and the decree was affirmed on appeal by the Provincial Court of Murshidabad, and again by the Sadar Dewani Adalat in Rupnarain Deo v. Raja Qadir Ali, 1 Select Report 376.

The latter Court however advised the ghatwal to apply to the Board of Revenue for separation of the pergana from Kharagpur, which the Court recommended. The Court took the view that the ghatwals'' tenure was undoubtedly separable from the zamindari of the Raja under S. 4 of Regulation 8 of 1793 which directed the making of a Settlement with the actual proprietors of the soil however designated. In accordance with this recommendation the separation was afterwards effected. It may be noticed here that in the written statement, para. 22, the defendant submitted that this pargana was similar to pargana Handwe and that Captain Browne (in point of fact the Governor General in the case of Lachmipur) had granted sanads to the proprietors of both the parganas in similar terms. In the suit of 1810 Jhabban Singh also claimed to possess the same status as that which had been conferred on the ghatwal of Lachmipur. Some important documents which still remain to be dealt with may now be classed under separate heads: 1, Documents relating to certain statements made on behalf of or by Raja Udit Narain Singh, the grandson of Jhabban Singh.

It appears that after the death of Madho Singh (son of Jhabban Singh), when Udit Narain Singh was still a minor, there was a proposal to place the minor''s estate under the charge of the Court of Wards, but his mother objected to the estate being taken out of her hands on several grounds including the ground that as the estate did not pay revenue direct to Government the Court of Wards could not take charge of it under Regulation 1 of 1800. The Commissioner, however, rejected this petition by his order dated 4th April 1857 (Ex. 26). This document is relied upon on behalf of the respondents as containing an admission on the part of Udit Narain''s mother acting as his guardian that the property was subordinate to Kharagpur. The statement cannot be so construed; it amounted merely to an assertion of the undisputed fact that the revenue was not being paid direct into the Government Treasury. As soon as that fact was established the regulation became strictly inapplicable whether the minor had proprietary rights in the property or not.

The documents of this class which may be considered next are Ex. 29 which is a judgment of the Sadar Amin of Bhagalpur in a suit for possession instituted in 1861 and Ex. X which is the judgment of the Court of appeal in the same suit. It appears that there was a dispute as to whether certain lands of taluk Sarmi were in possession of Udit Narain or of one Karu Manjhi who professed to have taken settlement of them from Raja Leelanand who, as we have seen, had purchased the Kharagpur estate at the revenue sale. The land was attached by the criminal Court, but subsequently the attachment was withdrawn. A suit was then brought by Raja Leelanand for possession of the land on the ground that it was included in his zamindari and that the possession of Karu Manjhi was tantamount to his own possession. The Handwe estates having then under the Court of Wards, the Collector contested 1 the suit on behalf of the ward and while admitting that Handwe was a mukarrari ghatwali under the Kharagpur Raj, resisted the claim of Raja Leelanand on the ground that the lands appertained to Handwe. The trial Court dismissed the suit on that ground and the decision was upheld on appeal.

The respondents rely upon Ex 29, and the learned Subordinate Judge seems to consider that they are entitled to do so, on account of the alleged admission of the Collector regarding the proprietary rights of Raja Leelanand. It appears to us however that little weight attaches to it because in the first place the exact words in which the admission was made by the Collector are not before us and in the second place the balance of authority seems to be in favour of the view that an admission made by a guardian of a ward or by the Collector as an officer of the Court of Wards will not necessarily bind the minor: Banwarilal Singh v. Dwarka Nath, 1918 Cal 34 = 52 IC 825= 29 CLJ 577. Another document that may be mentioned under this head is Ex. Q. This was an application made in 1879 by Raja Udit Narain Singh to the Collector praying that this name might be registered in the Collectorate on his succession to his father''s estate. It appears from this petition that a former application had been rejected on the ground that the Land Registration Act contained no provision for the registration of mukarrari tenures. In this second application Udit Narain asserted that he possessed a zamindari right and referred to the fact that his ancestors had obtained settlement not from the zamindar but directly from the Government. The Collector thereupon passed the following order:

The whole of the kaifiat (remarks) contained in Register mukarrari to be entered opposite to Handwe Mahalat Kurrichpur with the name of the present proprietor in lieu of the old ones.

Accordingly in Ex. T, which is a general register maintained under S. 2, Act 48 of 1793 of estates paying revenue to the Government, a note was made that under the order of the Collector the remarks entered in the column of remarks in the former mukarrari register (Ex. U) were exactly reproduced. The entry concludes with the following remarks:

Now on a reference to the judgments of the District Court, the Provincial Court, etc., as also the mukarrari register, the name of Raja Udit Narain Singh, aforesaid has been recorded in respect of the istimarari mukarrari zamindari in paragana Handwe to which the applicant''s title had been determined on the expunction of the names of the Raja Subhao Singh, Raja Purandar Singh. . . .

Both Exs. Q and T are strongly relied upon by the appellant as proof of an instance in which the assertion by the holder of the Handwe as to his proprietary title was in some measure given effect to. Exception however is taken by the respondents to the concluding portion of the entry on the ground that there is nothing in the order of the Collector to authorize it. The entry however is one made in an old official record and we do not think it would be safe to hold that it was made without authority. In any event the entry cannot carry greater weight than the decision to which it refers. 11 Documents relating to certain land acquisition proceedings which took place between 1863 and 1867. These documents are Exs. 30, 32 to 39. Land included in Handwe while the property was in the management of the Court of Wards was acquired by the Government far some public purpose and it was found that no notice of the proceedings bad been served upon the proprietor of the Kharagpur estate. Referring to this omission the Deputy Commissioner of the Santal Parganas stated that the property for which the land was to be acquired was a part of the mukarrari tenure of Raja Udit Narain Singh held under Raja Leelanand Singh who was paying the rent to the Government. Raja Leelanand Singh is described in this letter (Ex. 32) as the "superior proprietor" of the land. In the same connexion the Commissioner informed the Collector of Bhagalpur (Ex. 30) that as the papers in the Collector''s office showed Raja Leelanand Singh to be the zamindar and Udit Narain Singh to be "a mere istimararidar", notice ought to have been issued to the former.

In Ex. 33 which is a letter from the Commissioner of Bhagalpur to the Collector of that district it is stated that no remission of rent could be allowed by the Government to the minor Udit Narain Singh as the pargana was held by him under a mukarrari lease from the zamindar who paid a jama to the Government. The statement in this document that the mukkarrari lease was held from the zamindar is inaccurate. Both in Ex. 33 and Ex. 35 (the latter being a letter addressed by the Collector of Bhagalpur to the Deputy Commissioner of the Santal Parganas) Raja Leelanand Singh is described as the superior landlord of the estate. Exs. 34 and 36 to 39 do not call for any special comment and it may be briefly stated that eventually compensation was divided between the zamindar of Kharagpur and the ghatwal. The documents are further evidence of recognition by the Government of Raja Leelanand''s proprietary rights in Handwe.

Documents relating to the settlement of Mr. Wood in 1873 and to the Settlement of Mr. Macpherson in 1898-1907.--In Ex. 40 which is the "rough" settlement report of Mr. Wood, Raja Leelanand Singh is described as the superior landlord of Udit Narain who was then the holder of Handwe. The Record of Eights prepared by Mr. Wood in respect of some of the villages appertaining to Handwe has been filed by both parties (see Exs. 5 to 5 (L), and Z (8), Z (10), Z (11), 2 (27) and Z (36). The appellant relies upon these records as showing that the name of Udit Narain Singh was recorded in the proprietary column in the Khewat. On the other hand it is pointed out by the respondents that Udit Narain Singh was recorded as the holder of an istimarari mukarrari and it is stated that as no separate khewats were prepared at the time for proprietors and tenure holders and the practice was to record only the rent received, whether proprietor or tenure holder under the generic title malik, no special significance should be attached to the entry to Udit Narain''s name in the proprietary column. Mr. Macpherson''s Record of Rights of 1898-1907 was prepared on the same lines as Mr. Wood''s settlement record and there again we find the name of the holder of the Handwe properties, (at that time Rani Keshobati) recorded in the proprietary column and the Rani herself described as istimari mukarraridar (see Ex. Z (13) to Z (17); Z (37) to Z (40) and Z (62). Both these records were placed before Mr. Davies, the officer in charge of the settlement in the years 1923-34, and in his opinion

The meaning and effect of the entry of the Handwe estate in the published record of the previous settlement is that pargana Handwe is an istimrari mukarrari tenure under the Kharagpur estate.

It seems to us that whatever designation may have been adopted by Mr. Wood or Mr. Macpherson to describe the status of the ghatwals of Handwe in relation to the zamindar of Kharagpur, there is no indication in the record prepared by them that the former did not possess any proprietary rights in the properties which were in their possession. At one place Mr. Wood stated as to the Handwe taluk which he described as the estate of Raja Udit Narain Singh, that Raja Leelanand Singh could not in any way interfere with the management of it nor could he oust Raja Udit Narain Singh except in execution of a decree for arrears of rent. We may here deal with another important group of documents which relate to a number of rent suits brought from time to time by the proprietors of Kharagpur against the holders of Handwe between 1839 and the period shortly preceding the institution of the present suits. Ex. 13 which is the judgment given in the earliest rent suit contains a list of the documents which were filed by the parties in the suit and it shows that after a feeble insinuation that the plaintiffs were entitled to certain zamindari dues from the defendants, the claim was ultimately given up and was confined to Rs. 2040 that is to say (leaving out of account annas and pandas) the amount Rs. 2,818 mentioned in the earliest grant in favour of Hand we minus Rs. 446 which represented the sair rent (abolished by Regn. 27 of 1793) and Rs. 331 odd, the sum originally payable in respect of four taluks of Hand we which by this time had passed out of the possession of Subhao Singh''s descendants. Documents have also been produced in correction with a large number of rent suits instituted between 1839 and the date of the institution of the present suits and they consist of either judgments or decrees or plaints or extracts from papers relating to execution proceedings. They show among other things another variation of the former rent payable by the Handwe estate but this admittedly was due to the addition of a compensatory allowance for substitution of the present currency for the Company''s coins bringing the amount of Rs. 2171. It may be mentioned here that the fact that the sum annually payable was varied from time to time furnishes an argument to the respondents in favour of their contention that the amount payable is not revenue, which must be one fixed and immutable sum, but rent which the landlord has allowed to be split up as occasion arose. An argument of far greater consequence which is advanced on behalf of the respondents relates to the question of res judicata. It is strenuously argued on behalf of the respondents that these decisions conclude the controversy on the following questions:

(1) Whether the relationship of landlord and tenants exists between the parties. (2) Whether the amount payable is rent or revenue. (3) Whether the holder of Handwe has any proprietary interest at all in the property. On a consideration of a number of authorities, which were cited in this Court also, the learned Subordinate Judge has held that the decisions in the rent suits do not constitute res judicata between the parties, but they stop the appellant from asserting that she is not a tenant of the plaintiffs. It is unnecessary to enter into this somewhat academic controversy as regards the distinction between res judicata and estoppel and no useful purpose would be served by reviewing the authorities cited before us It is sufficient for us to record our opinion that the decisions in the rent suits would constitute res judicata so far as the liability of the defendant to pay an annual sum is concerned, and perhaps also as to the amount recoverable from the defendant. We do not however consider that the decrees in the rent suits standing by themselves are conclusive on the question whether the holders of Handwe possess the status of a proprietor or not. The question who was the proprietor of Handwe does not appear to have been specifically raised in any of the rent suits and it need not have been raised as the general liability to pay a fixed sum was not denied by the defendants in those suits. Certain documents which may he classed as miscellaneous owing to the variety of their contents and description may be briefly referred to. Among these are copies of Collectors Register D of estates, land revenue chalans, extracts from rokar or account books kept by the plaintiffs and entries in certain village papers called leggits. They are of such little importance that neither party relies upon them. A few other documents which are slightly more important may, lowered, he mentioned. Ex. D is a letter dated 25th October 1880, addressed by the Deputy Commissioner of the Santal Parganas to the Commissioner of the Bhagalpur Division in which the following statement occurs:

The whole of the great Tappa Handwe, for example, is an unreduced ghatwali of the Kharagpur estate,

Exhibit 58 is a memorandum from the Assistant Commissioner to the Collector of Bhagalpur dated 10th July 1907, stating that

The rent payable to Raja Leelanand for the mukarrai tenure of pargana Handwe was in company''s rupees.

Exhibit 16 is a petition filed by Rani Keshobati Kuer, widow of Udit Narain Singh, in 1910 to the Senior Member of the Board of Revenue in which she stated in para. 15 that the Handwo estate with the exception of a small village was an istimarari mukarrari tenure included in the Kharagpur estate with a fixed jama and therefore its management could not be placed under the Court of Wards under S. 22 of Act 11 of 1863. This document does not call for separate comment as we have already referred to a similar objection made by the mother of Udit Narain in 1857 (vide Ex. 26). Ex. 65 is an order sheet of a cess revaluation proceeding of 1914-15 in which taluk Kendua of the Handwe estate is described as a tenure. We have considered all the important documents which were referred to by the parities in the course of their argument and we might now proceed to record our conclusions on the main issues in the case. As however one of these issues is as to whether Hand we is a Government ghatwali or a ghatwali under the Kharagpur estate we may appropriately preface our decision on this issue with a brief account of the nature and incidents of ghatwali tenures generally and of two classes of ghatwali tenures particularly. A lengthy discussion of the topic is not necessary as it has been the subject of many reported decisions of the Calcutta High Court and of this Court and has been fully dealt with in the judgments of the Privy Council delivered by Lord Kingsdown in Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101 = 4 WR 77 = 1 Sather 248 = 1 Sar 505 (PC) and by Lord Sumner in Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5 = 79 IC 825 = 51 IA 7 = 3 Pat 183 (PC). Liberally a grutwali means a guard of the passes and the term "ghatwali tenure" was applied by the Moghuls to lands assigned at a low rent or free of rent for a guarding the mountain passes and protecting the villages near the hills from the depredations of lawless hill tribes.

These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiba, Gidhour, Birbhum, Kharagpur, Bhagalpur and the Santal Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different places. In some cases they were owners of larger estates. Some of these estates being more or less of the nature of semi-military colonies. For example it is stated in Philip''s Land Tenures of Lower Bengal that two-thirds of Birbhum was originally granted by Mir Jafar free of revenue to an Afghan or Pathan named Asadullah and his tribe on condition of his guarding the frontier against the Hindus of Jharcund There were also a number of inferior ghatwals who had small and specific portions of land assigned to them for their maintenance like the ghatwals in the zamindari of Bishunpur adjoining Birbhum to whom Harrington makes a special reference (see Harrington''s Analysis, vol. 11, p. 510). In some cases the ghatwalis were created directly by the ruling power, while in other cases they were created by the landlords or zamindars for the purpose of protecting their zamindari and tenantry and to enable them to have a small force at their command and to discharge the obligations they owed to the ruling power. Sometimes the owners of large ghatwali estates subdivided and re-granted the lands to other tenants who besides paying small rents held their lands on condition of rendering certain quasi-police and military services and providing a specified number of armed men to fulfil the requirements of the Government or of the zamindar as the case might be.

As the ghatwali tenures differed from one another in many respects such as size, importance, origin, incidents and the duties which the incumbent of the office of ghatwal had to perform and the privileges he used to enjoy. It is by no means easy to suggest a complete and logical classification of the various types of this tenure. We read in the decision of Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101= 4 WR 77= 1 Sather 248= 1 Sar 505 (PC), that in 1813 the Collector of Bhagalpur reported that there were at least four kinds of ghatwalis in his district. Very broadly speaking however ghatwali tenures may be said to fall under two classes, (1) those created by the Government or the ruling power, and (2) those created by the zamindar or the holder of a ghatwali estate. In the judgment of the Privy Council in 3 Pat. 183 (1), there is a reference to another class of ghatwali tenures which though created by the Government have since their creation, and generally at the time of the Permanent Settlement, beep included in a zamindari estate and formed into a unit in its assessment. These last ghatwali tenures are really a branch of class (1), but perhaps they deserved special mention owing to their anomalous position.

The ghatwali tenure originally introduced was so similar to service or chakaran tenure that at one time the notion prevailed that ghatwals had no right of inheritance but were entitled to hold the land only so long as they performed the terms and conditions of their sanads. This was what the Collector of Bhagalpur reported in 1813 to the Magistrate of Birbhum, in answer to certain enquiries in respect of the ghatwali lands in his district, see Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101= 4 WR 77= 1 Sather 248= 1 Sar 505 (PC) at pp 123 and 124) and this also appears to be the view taken in Tikayat Jugmohan Singh v. Leelanand Singh, 13 Sudar Dewani Adalat Rep 813, where it was held that a ghatwali tenure though in existence before the Permanent Settlement is essentially different from a mukarrari tenure, the continuance of the former depending on a condition of service and of the latter on the regular payment of rent and consequently the former tenure might be resumed by the zamindar at any time either on the dismissal of a ghatwal for neglect of duty or when the performance of the service for which the tenure was created ceased to be necessary. In course of time however it began to be recognised that these tenures had become perpetual and hereditary. In Manoranjan Singh v. Leelanand Singh, (1865) 3 WR 84, it was held that the ghatwals of Kharagpur held a perpetual heredity at a fixed jama payable in money and service and could not be evicted by the zamindar except for misconduct. The learned Judges in course of their judgment observed:

All analogy, all history, and all the facts which have been brought to our notice, go to show that as a matter of fact these, whatever may have been the express terms of the grant, have been constantly handed down from generation to generation, but no instance can be shown in which the zamindar on his own mere motion has ejected the ghatwal and determined the tenure. We are quite clear that under the established usage and constitution of the country he cannot do so.

In Kooldip Narain Singh v. Mahadeo Singh, (1866) 6 WR 199 = Beng LR Sup Vol 559, a suit was brought by the auction purchasers of an estate for the eviction of certain ghatwals on the ground that the performance of their service was not needed and had been dispensed with and that as the ghatwali property was comprised within the estate they had bought, they were en titled to take possession of it. The ghatwal defendants contended that the lands were held by them under the head "hereditary ghatwali" tenures and the Secretary of State who was also defendant put in a written statement denying that the Government had renounced its claim to the services renderable and asserting that it would enforce them when necessary. A Full Bench of the Calcutta High Court held that the zamindar was incompetent on his mere motion without the consent of the Government to put an end to the ghatwali tenure and deprive the ghatwals of the land and treat them as common trespassers, the position of the parties being thus defined by Jackson, J., one of the learned Judges composing the Bench:

The lands are subject to the service, the defendants are entitled to the tenure, the plaintiff is entitled to the quit rent and the Government to the revenue; the services are public and for the benefit of the public and not private for the benefit of the plaintiff alone.

These decisions as well as a number of ethers, which need not be quoted, have now fully established that ghatwali tenures are heritable and descend from generation to generation. The process by which these tenures became hereditary is stated by Lord Sumner in Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5 = 79 IC 825 = 51 IA 7 = 3 Pat 183 (PC):

In such cases the ghatwali tenure, even if not originally granted as heritable, easily becomes so, and is commonly found on the death of an incumbent of the office to descend to some member of his family, if not necessarily to the senior member. A recognised right to be appointed ghatwal when it takes the place of a formal appointment a recognized right in the superior to dismiss the ghatwal if he is no longer able and willing to render the service required by his tenure, and to appoint another person to the office and the tenure of the lands then readily suffices to maintain in perpetuity the incidents of the tenure.

The other incidents which are commonly associated with a ghatwali tenure are inalienability and indivisibility. That it is indivisible was pointed out in Hurlal Singh v. Jorawan Singh, 6 Saddar Dewani Adalat 169, and as to inalienability the Judicial Committee observed in Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5 = 79 IC 825 = 51 IA 7 = 3 Pat 183 (PC):

A further incident of such a tenure is the inalienability of the ghatwali lands, for it is obvious that, if the whole lands were alienated together at the choice of the ghatwal, he would be in a position either to make his own alienee, possibly a person non-resident or unfit, the ghatwal in succession to himself without the consent of his superior, or to deprive himself of the whole of the means provided to enable the services to be rendered, while himself retaining the office, whose obligations he could in consequence no longer fulfil. The office cannot, except by special custom, grant or other arrangement, either run with lands or be severed from them. If the lands are alienated piecemeal and this must be involved in a right to alienate them at all the same difficulty arises in another form, for there, the office being indivisible, the question is to which of a number of several purchasers of the lands is it to pass.

This rule of inalienability may in the case of zamindari ghatwalis be qualified by local custom and in fact it has been found to be so qualified in the case of the ghatwals of the Kharagpur zamindari. In Kali Prasad v. Ananda Rai, (1888) 15 Cal 471 = 15 IA 18 = 5 Sar 121 (PC), Lord Fitzgerald delivering the judgment of the Privy Council observed:

The question then which their Lordships have to consider and decide is whether the sale and transfer of a zamindari ghatwali in Kharagpur under a decree is invalid by reason of the tenure being in its nature inalienable. The evidence established a number of instances in which there have been unquestioned transfers and sales applicable to mahals in Kharagpur, and some to portions of the same estate which the plaintiff describes as part of his ancestral, inalienable, ghatwali rights. This custom of alienation has been proved in fact by oral and documentary evidence to the satisfaction of the Subordinate Judge and of the High Court, and their Lordships sec no reason to doubt the correctness of the conclusion in that respect of the two Courts. It seems to their Lordships that the true view to take is that such a tenure in Kharagpur is not inalienable, and may be transferred by the ghatwal or sold in execution of a decree against him if such transfer or sale is assented to by the zamindar. When once it is established that the ghatwal had the power of alienation, as before stated, that power forms an integral portion of his right and interest in the ghatwali, and there is no evidence whatever to limit it to an alienation for his own life and no longer.

A Government ghatwali on the other hand has been uniformly held to be inalienable. In Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC), it was definitely held that it was not liable to attachment and sale in execution of a decree. The incidents of a Government ghatwali therefore are that it is hereditary, indivisible and inalienable, but the rule as to inalienability may be relaxed by the Government in certain leases and the tenure may he alienated by the special permission of the Government. It is to be remembered also that a Government ghatwal while he enjoys certain special privileges, also suffers from this disability that ha can at any time be dismissed by the Government for misconduct. As there was some discussicm as to whether a Government ghatwal may wilfully and habitually default in the payment of rent with impunity, we have here appropriately stated our view that if the ghatwal holds the ghatwali tenure subject to the payment of a fixed and established annual sum and to the performance of certain duties for the maintenance of the public peace, he will be liable to be dismissed by the Government on failure to discharge either of these obligations.

So much for the origin and the chief incidents of the two main classes of the ghatwali tenures known as Government ghatwalis and zamindari ghatwalis. The point to be determined now is to which of these two classes Handwe belongs. We have already sufficiently indicated what our conclusions are going to be and we shall briefly summarise them here. Fortunately we have before us Exs. I and J, that is to say, Captain Browne''s patta of 1776 and Mr. Dickinson''s parwana of 1794 and as the Judicial Committee have pointed out in Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5 = 79 IC 825 = 51 IA 7 = 3 Pat 183 (PC).

The nature of the estate of Handwe rests upon the true construction and import of these documents and not upon the notion entertained about them in later generations.

We have referred to these documents and have shown that they purport to make grants on behalf of and in the name of the East India Company and when we have in view the fact that Captain Browne''s avowed policy was to bring at least the more important ghatwali estates directly under the control of the East India Company there can be no room for doubt that the Handwe estate was in its origin a Government ghatwali. This conclusion is strengthened by the fact that in Captain Browne''s India Tracts the Handwe estate is described as one of the three ghatwali estates which were under the control of the Collector of zilla jungle terai, the other two being Lachmipur and Chandan Katoria. As we know there were numerous other ghatwali tenures in Kharagpur and the fact that only three of them were placed under the Collector and a number of these tenures were in charge of the rent farmer is not without significance. The respondents have tried to explain away Ex. 1 by the production of Ex. 83 and similarly they have tried to neutralize the effect of Ex J by the production of Exs. 3 and 138. But we have dealt with those documents and shown how unreliable they are and we have also shown that Exs. I and J have continued to be regarded as the documents on which the title of the owners of Handwe rests. In our opinion therefore there can be no doubt that the Hand we estate was in its origin and has continued to be a Government ghatwali estate possessing all the incidents of a Government ghatwali, to which we have referred. It is true that the ghatwali services have now lost their importance and the Government have practically ceased to be interested in them. There is however no proof in the record of this case that the Government have ever done anything to terminate the ghatwali character of the land. On the other hand as late as in 1907 in a mortgage suit (Ex. Z (1) relating to a portion of the Handwe property the Deputy Commissioner of the Santal Parganas having been appointed guardian ad litem of Satya Narain Singh of Handwe, then a minor put in a written statement on behalf of the minor contending that the ghatwali had been created by the ruling power and that the suit could not proceed without the Government being made a party to it.

The respondents have advanced four main arguments to show that the Handwe estate cannot be held to be a Government ghatwali. It is said in the first place that in order to determine the true nature of the tenure we must take into consideration the facts of the parties as well as of the officials representing the Crown during the period which immediately followed the grant and that these will unmistakably show that the Handwe estate is a Kharagpur ghatwali and not a Government ghatwali. This contention is not without force. We have already noticed that in Exs 111 (1781) and 137 (1788), the Raja of Kharagpur clearly asserted that he had the power to appoint ghatwals in a number of estates within his zamindari including Handwe and that these documents were filed in the Collectorate. Again in Ex. 98 (1916) which was a report from the Collector to the Court at Murshidabad it was definitely stated that the power of appointing and dismissing the ghatwals of Kharagpur had rested with the Raja and that except in the case of chandwe pasai all the ghatwals paid their rent to Qadir AH and remained obedient, loyal and devoted to him. According to Ex 99 (1817) the Collector was informed by the ghatwal of Kamardiha that when in 1188 Raja Qadir Ali got back his Raj, all the ghatwals, who had obtained pattas from Captain Browne, presented themselves before the Raja, who had the power of granting pattas and appointing and dismissing ghatwals, and obtained fresh pattas of rents varying with the produce from him. Mr. Ward''s report of 1833 Ex. 7 (1), though it does not express any opinion as to what was the precise status occupied by Hand we, contains statements which seem to favour the respondent''s contention that Handwe is not a Government ghatwali hut a ghatwali under the Kharagpur estate. We have however dealt with all these documents and others of like nature, and they can be best answered in the words of Lord Sumner who dealing with the same matter observed:

Undoubtedly this long series of administrative acts, record and reports, which either affirmatively declare Handwe to have been shikmi ghatwali of Kharagpur or negatively treat it as, at any rate, wholly free from any ghatwali services to the Government is, as the learned subordinate Judge found it, a very impressive circumstance. If the problem had been to infer the true original grant, which, in the absence of the text of it, could only be collected from the evidence of what was done and left undone in connexion with Haudwe by the ruling power, it would, no doubt, have been difficult to infer, as the explanation which best fitted all the facts, that the right originally granted consisted of a ghatwali tenure, held from the E I Co. direct. The production of the authorities texts of the original grants completely alter the question, and it becomes in the first instance one of construction. The reports of the Government officers are not even contemporaneous exposition, for the earliest one must have been based on hearsay account, already one or two generations old, and presumably not on any inspection of the original grants, since they are not mentioned.

The second argument advanced on behalf of the respondents relates to the significance and effect of the inclusion of Handwe in the Kharagpur zamindari by the sanads of 1780 as well as at the time of the Decennial and Permanent Settlement. The argument is a twofold one and has been put more or less in this form: (1) How could Handwe, if it was a Government ghatwali estate, be included within the Kharagpur zamindari? (2) Even if we were to assume that it was in its origin a Government ghatwali estate, it ceased to be so as soon as it was included within the Kharagpur estate. The short answer to the first argument is that the grant upon which the title of the Handwe ghatwali is based unmistakably shows it to be a Government ghatwali and it is not the only case in which the properties of persons who are admittedly Government ghatwals have been included in the zamindari of other persons. We have stated before that Lord Sumner when enumerating the various kinds of ghatwalis in the Santal Parganas refers also to Government ghatwalis

which since their creation, and generally at the time of the permanent settlement have been included in a zamindari estate and formed into a unit in its assessment.

In Durga Prasad Singh v. Brojo Nath Bose, (1912) 39 Cal 696 = 15 IC 219 = 39 IA 133 (PC.), a digwar whose status is similar to that of a Government ghatwal was treated as such notwithstanding the fact that his estate was included within another zamindari. In Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC), Sir Barnes Peacock dealing with a similar argument observed as follows:

The permanent settlement of the lands did not alter the nature of the jagir or of the tenure upon which the lands were held, nor could it convert the services which were public into private services under the zamindar. The zamindar becomes entitled only to the rent or revenue which was previously payable to the government and in respect of which ho was assessed and not to the services in respect of which the one-third of the rent or revenue was allowed to the tenant as compensation for the services. Those services continued to be due to the Government.

Another case in point is that of the Birbhum ghatwals whose status was made clear by Regn 29 of 1814. They were undoubtedly Government ghatwals and yet their estates had been included in the zamindari of the Raja of Birbhum. As to the second argument we have already commented on the fact that there is nothing in the sanad of 1780 or in the proceedings of the Decennial or the Permanent Settlement to show that it was intended that the ghatwals of Handwe should by reason of the inclusion of their estate in the zamindari of Kharagpur occupy a status different from that which they occupied before. On the other hand the fact that the Collector of Bhagalpur issued a fresh parwana to the ghatwals of Handwe in 1794 after the Decennial Settlement of the entire mahals of Kharagpur including Handwe had been concluded'' with Raja Qadir Ali, is alone sufficient to show that Handwe had not ceased to be a Government Ghatwali merely by reason of its inclusion in the Kharagpur estate and its being a unit in the assessment of that estate. The position may be anomalous but it has not been shown to us that either historically or on any legal principle the Government ghatwal whose taluk was included in the zamindari of another person could not continue to he a Government ghatwal. In fact as the Judicial Committee has pointed out in the Hetampur case, unless the inclusion of the tenure and assessment of the zamindari lands can be shown to have amounted to a release by the Government of the ghatwali services or to a grant to a third party of the right to receive them and of the right to appoint a ghatwal the tenure must remain as it originally was a Government tenure.

The third argument advanced on behalf of the respondents is based upon analogy. It is contended that Handwe should not be supposed to possess a status different from the other Ghatwalis of Kharagpur none of which has been either claimed to be or has been recognized either by the zamindar or by the Courts of law as being a Government ghatwali. There is force in this argument and it is supported by the history of the other Ghatwalis of Kharagpur of which we have already given an account of some length. The argument is further supported by the fact that some of the component parts of the Handwe estate which were included in Ex. 1 were afterwards dealt with as if they were ordinary zamindari ghatwalis. In this connexion learned counsel for the respondents read out to us extracts not only from the judgment of the Judicial Committee in Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101 = 4 WR 77 = 1 Sather 248 = 1 Sar 505 (PC), but also from several other decisions relating to some of the Ghatwalis of Kharagpur, and laid stress on passages where it is asserted that the power of the Raja of Kharagpur to appoint and dismiss ghatwals was unquestioned. He laid particular stress on the report of the Collector as reproduced in the decision of the Privy Council in Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101 = 4 WR 77 = 1 Sather 248 = 1 Sar 505 (PC), and an extract from an order, 1783, to Raja Qadir Ali informing him that Rani Sarbeshwari had been dismissed from her office of Ghatwal of Jamuni Harnapar and intimating to him that

As the office is in Your Highness'' gift, Your Highness will, if you deem it proper, appoint a person to the office of the ghatwal of the said pergana to watch day and night at the said ghat.

Lastly he pointed cut that in many other instances ghatwali sanads had been granted by Captain Browne and contended that judging from the language of certain reported decisions it was highly probable that these sanads were granted in the same terms as are to be found in Ex. 1. The argument, as we have already stated, is impressive but the fact remains that the status of the Handwe ghatwals is to be determined upon a construction of the particular grant from which they derived their title and cannot be decided merely upon the analogy of other ghatwali estates. Indeed the respondents have not placed on the record a single sanad granted in respect of any of the other ghatwali estates of Kharagpur and whatever room there may be for surmise we cannot state with any degree of judicial certainty that the contents of the other sanads must have been identical with those of Ex. 1. The statements made in Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101 = 4 WR 77 = 1 Sather 248 = 1 Sar 505 (PC), cannot be applied without discrimination to the present case because that case dealt mainly with zamindari ghatwalis and there is nothing in it to show there were no Government ghatwalis in the districts of Bhagalpur and the Santal Parganas. Commenting on that decision Sir Barnes Peacock observed in Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC):

In that case it was no doubt held, that it was the province of the Raja of Kharagpur to appoint and dismiss the ghatwals, but it was also stated that ghatwals held their lands in virtue of Sanads granted by the zamindar except some who had received theirs from the former authorities; it was also found that in that case the lands had been granted By the ancestors of the Raja and it was said that the Regulation did not apply to lands which the zamindars had permitted other persons to hold free from rent, or at a reduced rent, or (referring to the cases in which the sanads had not been granted by the zamindar) to lands which such persons had a right to hold free from rent or at a reduced rent.

Sir Barnes Peacock then referred to another case Raja Leelanand Singh v. Deorgabutty, (1864) WR 249 and added:

In that case however as in the case already cited from Raja Leelanand Singh v. The Government of Bengal (1854-57) 6 MIA 101 = 4 WR 77 = 1 Sather 248 = 1 Sar 505 (PC), at p. 103, the ghatwal had been appointed by the Raja, and the Raja, and not the Government as in the present case, bad a right to appoint and dismiss the Ghatwal.

It is also to be remembered that none of the other holders of ghatwali estates in Kharagpur seem to have ever seriously raised the question whether they were Government ghatwals or otherwise and most of them to have cheerfully accepted their subordination to the Raja of Kharagpur, In the case of Lachmipur alone the question arose whether it was entitled to separation from the Kharagpur estate and ultimately on the recommendation of the Court it was separated. No doubt whether in those early days the distinction between the status of a Government ghatwal and that of a zamindari ghatwal was fully comprehended and we consider therefore that an inference can be drawn from the failure of the ghatwals to assert rights of the existence of which they may not have been aware. The holders of the Handwe properties did not in so many words, assert themselves to be Government ghatwals for a long period, but from the year 1810 onwards they have been asserting from time to time in the clearest possible terms that they were independent of Kharagpur. It appears to us in these circumstances that it would be dangerous to proceed upon mere analogy. The status of the Handwe estate has to be determined purely on the construction of the grant and that grant is before us.

The fourth and the last argument advanced on behalf of the respondents relates to the effect of the agreement entered into by the Government of Bengal with Raja Leelanand in 1868, and it is contended that after this composition Handwe could never be regarded as a Government ghatwali. We have already dealt with this contention at some Length and given our reason for not accepting it. Two matters may be incidentally mentioned here. (1). The learned counsel for the respondent has laid great emphasis on the fact that as the present plaintiffs were not parties to the Hetampur case which was finally disposed of by the Judicial Committee in Satya Narain Singh v. Satya Naranja Chakraverti, 1924 PC 5 = 79 IC 825 = 51 IA 7 = 3 Pat 183 (PC), the decision of the Judicial Committee was not binding upon them and he contended that it should not in any way influence the decision in this case. He has furnished us with a list of exhibits which were not before the Courts which had to deal with the previous case and according to him these exhibits are sufficient to displace the view which was expressed in the former decision. Most of the case exhibits (a list of which is given in the judgment of the trial Court at p. 116 of the printed paper-book) are either sanads granted by the Rajas of Kharagpur to certain ghatwals within their zamindari or they have no direct bearing upon the present case.

There is however no doubt that a few of the documents filed by the plaintiffs such as Exs. 2, 3, 138, 83, 130, 133 and 135 if held to be genuine would seriously affect the claim of the Handwe estate to be regarded as a Government ghatwali. We have examined these documents and have discarded them owing to their unreliable character. So we agree with the respondents'' contention that the decision in the Hetampur case is not binding on them; we have tried to come to our own independent conclusions on the facts of the present case and have endeavored to deal with all the important documents produced by the parties and the arguments addressed to us on their behalf. It is to be mentioned however that the decision of the Judicial Committee in the Hetampur case must be treated as an authority binding on us as regards the legal principles expounded therein; and the historical discussion which it contains of the origin and nature of ghatwali tenures and of the manner in which the various incidents of this class of tenure grew or became attached to it, will perhaps continue to be regarded for a long time as the last word on the subject.

Two other matters on which much stress has been laid by the learned counsel for the respondents is that as the Crown has neither filed a written statement in this case, nor preferred an appeal against the decision of the lower Court, it should be held that it does not challenge the assertion by the plaintiffs and accepts the finding by the Court below that Handwe is not a Government ghatwali but is an ordinary Kharagpur ghatwali. Such an inference however we are not prepared to draw. It has been well settled that a mere omission to file a written statement does not amount to an admission of the facts stated in the plaint (see Ross & Co. v. Serivon, 1917 Cal 269 = 31 IC 235 = 43 Cal 1001 at pp. 1009 and Narendra Singh v. Emperor, 1928 Lah 769 = 115 I.C. 425. The non-appearance of the Crown in this Court may be due to the fact that the Crown is indifferent to the result of the '' litigation and does not consider itself justified in incurring unnecessary expenses. As has been already stated the services attaching to a Government ghatwali, however important they might have been at one time, have lost that importance now and are seldom actually rendered or required to be rendered. This consideration might well account for the attitude taken up by the Crown in the present litigation.

We will now pass on to the other main issue in the case which relates to the claim of the plaintiffs to be regarded as proprietors of the Handwe estate. At first sight this claim seems to receive support from a series of most impressive circumstances and the learned counsel for the respondent has naturally made the most of them in the course of his arguments. It is a fact that Handwe was included in and covered by the assessment of the Kharagpur zamindari in 1780 as well as during the Decennial Settlement and the Permanent Settlement. In the successive statements of the ghatwali properties submitted by Raja Qadir Ali in 1781 and 1787-91 Handwe is shown to be included in the Kharagpur estate and it was found to be so included in a number of official reports and records. In Ex. 6, which is an extract from the Quinquennial Register prepared under Regulation 48 of 1793, Qadir Ali is shown to be the proprietor of pargana Handwe among other parganas. In 1810 in reply to a robakari of the District Judge the Collector of Bhagalpur reported that Handwe was included in the milkiat zamindari of Qadir Ali (Ex. 97) and to the same effect was the report submitted by the Collector in 1824 to the civil Court (Ex. 142). In a proceeding of 1833 Mr. Ward based his decision upon the fact that in the column "Proprietor, zamindar and choudhary" of pargana Handwe, the name of Raja Qadir Ali stood recorded (Ex. 7). When in 1840 the Kharagpur estate was sold for artears of revenue the sale included Hand we, and it is not disputed that the auction purchaser acquired the same rights with regard to Handwe, whatever those rights may be, as the previous proprietors of the Kharagpur estate formerly possessed.

The Registers D that were subsequently prepared show Hand we as part of the Kharagpur estate and it is the Kharagpur estate which is on the Collector''s roll as a revenue paying estate. In 8th a report was made by the record keeper of the collect orate to a Deputy Collector stating that Handwe had been settled with Qadir Ali with other Kharagpur mahals (Ex. 105). Handwe like many other ghatwalis escaped resumption on the ground that it had bean included in the Kharagpur estate and this was the ground that was urged more than once to prevent the estate being placed under the management of the Court of Wards on the same assumption. In 1863 in a suit brought by Raja Leelanand Singh against the Court of Wards representing Raja Udit Narain Singh of Handwe the Collector filed a written statement on behalf of the ward admittedly the plaintiff, to be the proprietor of the entire Kharagpur Raj including Handwe (vide Ex 29). During the land acquisition proceedings of the years 1863-1867 the holders of the Kharagpur estate obtained compensation with regard to lands which were part of the Handwe estate.

It is clear that if this case were to be decided upon these circumstances alone, there would be some difficulty in holding that the plaintiffs should not be regarded as the proprietors of Handwe. The matter, however, is not so simple and in order to come to a correct conclusion we will have to go back to the time of the Permanent Settlement and consider the status of Handwe before the Permanent Settlement and how if at all that status was effected by reason of the Permanent Settlement. S. 4 of Regulation 8 of 1793 provides that

The settlement under restrictions and exceptions hereafter specified shall, be concluded with, the actual proprietors of the soil of whatever denomination, whether zamindars, talukdars or choudhris.

From this and other sections of the Regulation which indicate that the persons with whom the settlement was going to be concluded were to he regarded as proprietors of the soil, it is contended on behalf of the respondent that whatever may have been the position of the Raja of Kharagpur anterior to the date of the Permanent Settlement, he mast be deemed to have become, by reason of that settlement, the proprietor of all the parganas including Handwe that became the subject of it.

It is further argued that the ghatwals of Handwe cannot be regarded as proprietors of that pargana because the Permanent Settlement was not made directly with them. Now, it is undoubtedly an historical fact that a number of talukdars, who strictly speaking, were proprietors of the soil were not dealt with directly by the Government and their taluks were included in other estates (see also S. 5 of Regulation 8 of 1793). Whether this was due to oversight or to the desire on the part of the Government Act to have to deal with too many separate estates or to some other consideration is not a matter that need be considered here. Provision however was made in the Permanent Settlement Regulation 8 of 1793 itself for reparation upon an application made in that behalf in a proper case of taluks which had been wrongly included within the ambit of permanently settled estates. In the Regulation of 1798 no time was fixed for the making of such applications but by 1801 the necessity to fix a time limit was realised and so by S. 14 of Regulation of 1801 all talukdars who as proprietors of the land composing their taluks mighty consider themselves entitled to be separated from the zamindaris to which their taluks had been attached were enabled to prefer a written application to the Collector of their zilla for the separation of their taluks within one year from the date of this regulation under penalty of forfeiting all title to separation under Regulation 8 of 1793 if they should omit to apply as directed within the prescribed period. It was further provided that in the event of such an application not being made within the time prescribed:

The taluks shall thereafter be considered as dependent taluks not entitled to be separated from the zamindaris to which they may be attached; though, in other respects, the rights of the talukdars are not meant to be in any degree affected by the regulation.

It is not denied that the holders of the Handwe properties did not make an application for the separation of their estate within the time prescribed. In the record of this case we find an application to the appellate Court by Jhabban Singh in the year 1819 after the litigation of 1810-1819 was concluded. It was made however long after the expiry of the period prescribed by the Regulation of 1801 and it was disallowed The grounds of its rejection are not stated, but whatever they may have been it appears to us that the position of the Handwe ghatwals cannot be lower than that of a dependant talukdar in the sense in which the expression was used in Regulation 1 of 1801, that is to say the holders of a dependent taluk not entitled to be separated from the Kharagpur estate hut whose pre-existing rights remained in all other respects unaffected.

The status of a dependent talukdar and the question whether he can he regarded as a proprietor or not have been considered in a number of eases. In Kamakhaya Narain Singh v. Jado Charan Singh, 1928 Pat 294 = 114 IC 194, Mallik, J., one of the learned Judges of this Court expressed the opinion that any talukdar who failed to avail himself of the provisions of Regulation 1 of 1801 must be deeded to be a lease-holder whose contribution to the zamindar was rent and not revenue. This view seems to receive some support from the following observations made by Mr. Ameer Ali, in Srinath Rai v. Protap Udai Nath Sahai, 1923 PC 217 = 82 IC 879 = 28 OWN 145 (PC) at p. 152:

The regulation draws a wide distinction between independent talukdars and ''dependent talukdars.'' The former come within the category of actual proprietors of land Whereas the latter do not; ''they are considered as lease-holders only: S. 7, Regulation 8 of 1793).

A less strict view as to the effect of non separation under Regulation 1 of 1801 was taken in two later cases. One was the case of Surendra Nath v. Kamakhya Narain Singh, 1930 PC 45 = 123 IC 145 = 12 PLT 319 (PC), in which Sir John Wallis expressed himself thus:

The Chief Justice has also relied on the fact that the defendant''s predecessor, after the Permanent Settlement, did not seek for reparation as he was entitled to do if his present case is true. Now it is a matter of history that the number of talukdars entitle to separation was so great that Lord Wellesley''s Government found it necessary to pass a Regulation in 1901 limiting the time (or making such an application to three months from the date of the Regulation. In their Lordships'' opinion the failure of the defendants predecessor in this backward and remote part of the Presidency to put in an application within the time limited cannot be considered as raising any presumption that he was not entitled to make such an application.

In the other case, Charu Chandra Gosh v. Kamakhya Narain Singh, 1931 PC 5 = 130 IC 620 = 58 IA 17 = 10 Pat 284 = 12 PLT 337 (PC), Sir John Wallis restated the view which he had previously expressed in these terms:

With regard to this part of the case it is only necessary to add that it is well settled that if the Jugidih Raha was the proprietor of these nankar villages, his title was unaffected by his estate being included in the Permanent Settlement or any of the previous settlements with the Raja of Ramgarh, Juggut Mohinee Doossee v. Sookhemony Dossee, (1872) 17 WR 41 = 14 MIA 289 = 10 Beng LR 19 = 2 Suther 512 = 3 Sar 23 (PC), and that his failure to apply as such proprietor for the separation of his estate, under Regn. 8 of 1793 within the time limited by S. 14, Regn. 1 of 1801 merely deprived him of the right to separation as the section expressly left his other rights unaffected.

These are two of the leading cases in which the effect of non-separation under Regn. 1 of 1801 was considered, but there is also a long line of cases which deal with the presumption, arising from the Permanent Settlement. In Ranjit Singh v. Kali Dassi, 1917 PC 8 = 40 IC 981 = 44 IA 117 = 44 Cal 841 (PC), Lord Parker made the following observation on the subject:

Passing to the settlement of 1793, it appears to their Lordship to be beyond controversy that whatever doubts be entertained as to whether before the English occupation the zamindars had any proprietary interest in the lands comprised within their respect districts, the settlement itself recognizes and proceeds on the footing that they are the actual proprietors of the land for which they undertook to pay the Government revenue. The settlement is expressly made with the ''zamindars independent talukdar and other actual proprietors of the soil''; see Regn. 1, S. 3 and Regn. 8, S. 4. It is clear that since the settlement the zamindars have at least a prima facie title to all land for which they pay revenue, such Sands being commonly referred to as malguzari lands.

In Gobind Narain Singh v. Shyam Lal Singh, 1931 PC 89 = 131 IC 753 = 58 IA 125 = 58 Cal 1187 = 35 CWN 521 (PC), Sir George Lowndes after citing the above mentioned case added:

It follows from this pronouncement that in the case of any claim against the zamindar to lands which were included in his zamindari at the permanent settlement the burden of proof is upon the claimant.

In the light of these authorities it is clear that it is for the appellant to prove that she is the proprietress of the Handwe properties and the question is whether such proof has been furnished in this case on behalf of appellant. We have already stated that the origin of the Handwe ghatwali is shrouded in obscurity and there are no clear authentic records before us that enable us to say with any precision what was its status before the assumption of the Dewani by the East India Company. Our starting point must therefore be the sanad granted by Captain Browne to Subhao Singh and others. We have seen that by means of this sanad as well as by Mr. Dickinson''s parwana of 1794 (Ex. J) Subhao Singh and his successors-in-interest acquired istimarriri mukarrari right in that portion of the Handwe pargana which was the subject of the grant. The strict view of law which has been expounded in some of the modern decisions is that a mukarrari lease is not tantamount to a conveyance in fee simple and a person who being the owner of land grants a lease in perpetuity carves a subordinate interest out of his own interest and does not annihilate it: see Kally Dass Ahiri Vs. Monmohini Dassee, . Thus a mukarrari interest is generally regarded as not co-ordinate with but subordinate to the zamindari interest. It must be remembered however that in this particular ease the grant in favour of Subhao Singh and others was made not by a zamindar but by the Crown itself and there is nothing in the grant to show that the grantees were to be regarded as subordinate to the zamindar of Kharagpur. The mere fact that they were described as mukarraridars does not necessarily imply a subordinate status. We must also make some allowance for the fact that the officers of the East India Company during the early part of their administration did not fully comprehend the complexity of land tenures in India nor did they possess any clear notion of the legal distinction between a mukarraridar and a zamindar (landlord) which has been evolved in later times. The Handwe ghatwali is according to Mr. Ward 600 square miles in area. Whether this statement is accurate or not there is no doubt that it is an estate of considerable magnitude yielding a large income and it is difficult to believe that when the istimarari mukarrari grant was made to Raja Subhao Singh and others it was contemplated that the latter should have a status inferior to that of a zamindar as the term was understood in those days. Literally "zamindar" means a land (zamind) holder (dar) but as the compiler of the fifth report has pointed out in his introduction, p. 37) the term included persons whose relation to the lands in their enjoyment was of a very varying character, for example,

by a zamindar might be meant a representative of some ancient Hindu sovereignty; it might mean a Government farmer, who in recent years had acquired his zamindari by inserting himself in the place of the dispossessed, and it might mean the occupant of but a single pargana

In our opinion, the status held by the Handwe ghatwals before the Permanent Settlement was that of talukdars who were declared to be the proprietors of the soil by Regn 8 of 1793, but by reason of the fact that they did not take steps to have their taluks separated from the Kharagpur zamindari either under the provisions of the aforesaid Regulation or the Regulation of 1801 their status was converted into one of dependent talukdars. Their failure to apply for separation merely deprived them of the right to separation, other right remaining unaffected: see Surendra Nath v. Kamakhya Narain Singh, 1930 PC 45 = 123 IC 145 = 12 PLT 319 (PC) and 12 Charu Chandra Ghosh v. Kamakshya Narain Singh, 1931 PC 5 = 130 IC 620 = 58 IA 17 = 10 Pat 284 = 12 PLT 337 (PC).

We shall now refer to a few circumstances which seem to us to support our view that the holders of the Handwe ghatwali possessed a status not inferior to that of the talukdars who were declared by S. 5 of the Permanent Settlement Regulation to be the proprietors of the soil. We have stated that through his treatise India Tracts'' Captain Browne has referred to the ghatwals as zamindars. Raja Subhao Singh was actually described as a zamindar and pargana Handwe as his zamindari in the parwana of 194 issued by Mr. Dickinson (Ex. J.) We have also referred to the fact that in the chalan for revenue deposited by Subhao Singh in the year 1777 the estate of which the revenue was deposited is described as a taluk with Subhao Singh as proprietor and in the chalans S. 1 and S-2 of 1779 and 1780 he is described as zamindar. The use of the word "zamindar" or "proprietor" in the chalans is by no means conclusive, but in our opinion does appear in the circumstances of the ease, to connote a status superior to that of the holder of a subordinate tenure. Again in the litigation of 1810 to 1819 one of the questions which seems to have been debated in the trial Court was whether Jhabban Singh was the zamindar of pargana Handwe and the trial Court, although describing Jhabban Singh as Mufassal or dependant talukdar, came without hesitation to the following finding:

It is also in evidence that the ancestors of the defendant were and the defendant has been up till now in possession and occupation of the milkiat and zamindari and the istimarrari of the said pargana (Handwe) at one and the same time.

This finding as we have already shown was affirmed by the appellate Court. Again during the two successive settlements of Mr. Wood and Mr. Macpherson the holders of Handwe were recorded in the column of proprietors (maliks) and what is more important is that in the Record-of-rights all such proprietary rights as are referred to in the Santal Parganas Manual 1925, Part. I, were shown to be possessed by them. Upon these facts and circumstances the conclusion which we have arrived at is that the holder of the Handwe properties must be held to possess the usual rights which go with the "proprietorship of the soil" and may well be described as proprietors of Handwe in this sense It does not however follow that the inclusion of Handwe in Kharagpur zamindari at the time of the Permanent Settlem it is a matter to be altogether overlooked. As we have stated, Handwe had been probably a dependency of the Kharagpur Raj at one time and this may have been a reason why Handwe was included in the grant by which the zamindari of Kharagpur was restored on Qadir All. If, however, the inclusion implied any subordination such subordination was merely a nominal one as is apparent from the fact that the Zamindar of Kharagpur was not allowed to charge from the holders of Handwe properties the usual perquisites of two annas in the rupee (daunni rasum) which the zamindars used to charge in respect of most of the parganas which appertained to their zamindari.

The sanad of 1780 by which the zamindari of Kharagpur was restored to Qadir Ali shows that the effect of the inclusion of Handwe within the zamindari of Kharagpur was two fold (1): the Raja of Kharagpur was entitled to appropriate a sum of about Rs. 82 out of the revenue of Handwe as Kanungoi fee. This he was allowed to do as presumably the old Rajas of Kharagpur must have held the office of Kanungo in relation to the Handwe estate. (2) The revenue which the Handwe estate was to deposit in the Government Treasury was now to be paid through the Kharagpur estate. The Permanent Settlement does not seem to have very much altered the relative position of the parties, but as we have already stated the failure of the holders of the Handwe ghatwali to have their taluks separated from the Kharagpur zamindari was to convert them into dependent talukdar. The result was that thenceforward the Rajas of Kharagpur become superior landlords of the Handwe estate and what used to be paid by the latter as revenue was now payable as rent to the Kharagpur estate. This view is supported by the decision in Chandra Kanto v. Jai Gopal Chakraverti, (1805) 4 WR 41. In that case certain suits were brought by a zamindar for rent of a shikmi taluk in the revenue Court under Act 10 of 1859. It was held by the lower appellate Court that as the shikmi talukdars did not hold under the zamindar but only paid a share of the revenue allotted against their estates through the zamindar to the Government, the zamindar could not sue them for rent but only for their shares of the revenue. The matter, however, was taken up in appeal to the Calcutta High Court which held that this view would have been correct if the taluqdars held the estates in the Collectorate Tauzi separate from the plaintiff''s estate and the payment of the revenue through him was only a matter of convenience among themselves. But if the shikmi taluka were at the Permanent Settlement comprised within the zamindar''s estate, the taluks were subordinate to the plaintiff and the share of the revenue which was assessed upon them paid in the shape of rent to the zimindar. Under the Bengal Tenancy Act, "proprietor" means a person owning an estate or part of an estate, while "estates" means

land included under one entry in any of the general registers of revenue paying lands and revenue free lands.

The Bengal Tenancy Act does not apply to the Santal Parganas, but the notion that the proprietor is one whose estate is on the Collector''s roll is shared by all the revenue officers in the province, and the official records are prepared on that basis. There can be no doubt that in the great majority of cases the proprietor is the person whose name is on the Collector''s roll, but the test is somewhat artificial and cannot be the basis of the decision where the holders of estates were once entitled to separation under the Regulation of 1801 and have not taken timely steps to to effect separation. It appears therefore to us that the question whether the plaintiffs are the proprietors of Handwe is one which cannot be answered either affirmatively or negatively without qualification. The way in which we would answer the question is somewhat as follows:

The position of the proprietor of the Kharagpur estate is that of a superior landlord or one who is entitled to realize a curtain rent from the Handwe ghatwals, but the holders of Eland we properties have all the rights which usually go with the proprietorship of the soil. We prefer to express ourselves in these terms because in our opinion the unqualified use of labels such as "tenure-holder," "mukarraridar" or "zamindar" may be highly misleading in this particular case. In one sense, if the qualifications that we have set out are kept in view, we may use the term "mukarridar" or "holder of an istimarari mukarrari ghatwali tenure" with reference to the appellant and the term "zamindar" with reference to the respondents, but in describing the status of the former we prefer to archer to the expression, dependent talukdar" in the sense in which it has been used in the regulation of 1801 and to use with reference to the latter the term "superior landlord" which we understand is not unknown in that district and which was actually used by Mr. Ward in his Settlement Report in describing the status held by the zamindar of Kharagpur in relation to Handwe and which occurs also in correspondence between the Collector and Commissioner of Bhagaipur and the Deputy Commissioner of the Santal Parganas relating to the land acquisition proceeding''s of 1863-67. What may be the rights of the superior landlord other than the right of receiving rent, it is unnecessary for us to decide or state. In Secy of State v. Joyti Prasad Singh Deo, 1326 PC 41 = 94 IC 974 = 53 IA 100 = 53 Cal 533 = 30 CWN 745 (PC), Lord Phillimore describing the status of holders of thanaddari land observed:

No doubt the holders of thauaddari land stand in a certain position to the contiguous zamindar. If the lands are returned they are to be settled with the zamindar; and it may be that they may even be described as settled with the zamindar in a certain sense and that there is a sort of superiority in the zamindar which might entitle him to the surface of the land in case of escheat. Whether this would give him the claim to the minerals is a further question.

It may be that on closer examination of the question the rights of the superior landlord might be found to be similar to those described by Lord Phillimore but we do not feel that we are called upon to decide this matter We wish also to make It absolutely clear that we refrain from expressing any opinion as to the rights of the parties to the underground minerals. These rights have not been specifically referred to in the plaint and have not been made a subject of this litigation. It was conceded by both the parties that no underground minerals have been discovered yet and neither party has appraised us of any circumstance which might afford any reasonable ground for believing that such minerals are actually in existence. A discussion of the rights to the underground minerals would in such circumstances be purely academic and in any event we consider it undesirable to express any opinion as to these rights in the absence of the Crown which might not have stood aloof from these proceedings if the underground rights had been made a direct Issue in the litigation. Another important issue between the parties was whether the present suit is maintainable in view of the provisions, of Ss. 22 and 25-A, Regn. 3 of 1872. It may be recalled that on 16th December 1924 the Commissioner of Bhagalpur Division reversing the order of the Settlement Officer directed the appellant to be recorded as a Government ghatwal and proprietor of the Handwe estate and an entry was ultimately, made in the Record of Rights to that effect. It is contended by the appellant that this entry became final as the Commissioner''s order had the force of a decree of Court under S. 2 and that no suit can be brought in the civil Court to contest this entry under S. 25-A of the Regulation S. 2 runs as follows :

That except as provided in S. 25-A no suit shill lie in any civil Court regarding any matter decided by any Settlement Court under these rules, but the decisions and orders of the Settlement Court may under these rules regarding interests and rights above mentioned shall have the force of a decree of Court.

Section 25-A states:

Where only the rights of zamindars and other proprietors as between themselves are concerned, a suit may, unless it is barred by S. 23, Civil P.C., be brought in a Court established under the Bengal, Agra, and Assam Civil Courts Act (1887) to contest the finding or record of the Settlement Officer within three years from the date of the publication of the Record of Bights or of the final order of the Revenue Court. . . . of in any such suit it is found that the finding of the Settlement Officer is erroneous, the record shall be amended accordingly.

Now the only question to be decided is whether the present suit relates to the rights of zamindars and other proprietors as between themselves. Prima facie this would be so, if both the respondents and the appellant were admitted to be zamindars or proprietors. Learned counsel for the appellant however contends that as the case set out in the plaint is that the appellant is not a zamindar or proprietor, but merely a tenure holder or mukarraridar, the suit is not one contemplated by S. 25. A of the Regulation, and in support of his argument he has cited the following decisions: Sib Narayan Mukherjee v. S.P. Chatterji'' 1915 Cal 821 = 27 IC 84 = 20 CLJ 220; Kally Dass Ahiri Vs. Monmohini Dassee, ; Abhiram Goswami v. Shyama Charan Nandi (1909) 36 Cal 1003 = 4 IC 449 = 36 IA 148 (PC) and Dwarka Prasad v. Jai Barham, 1922 Pat 322 = 67 IC 686. In some of these cases it has been laid down that the status of a mukarraridar is inferior to that of, a proprietor and in the first mentioned case Sir Ashutosh Mukerji observed that a person who holds a derivative title under a zamindar cannot rightly be classed as a proprietor in the sense in which the word is used in the expression "zamindar and other proprietors" in S. 25-A, Regn. 3 of 1872. The other cases need not be discussed because they deal with a class of persons who are obviously not proprietors. The question whether the present suit is barred or not depends upon the proper construction of S. 25-A. That section appears to be somewhat clumsily worded and its application in some cases is apt to give rise to difficulty. Questions may arise, for example, (1) whether the section contemplates that the contesting parties must in all cases be proprietors of the same estate or property and (2) whether the section applies only to those cases where the status of the particular zamindars or proprietors is not questioned or it will apply even to cases where each party-asserts himself to be a zamindar or proprietor, but the other party does not admit him to be so.

In Ramrajan Chuckerbutty v. Nanda Lal Laik (1895) 22 Cal 473 a mere assertion by the plaintiff that he had a proprietary right in certain lands was held to be sufficient to enable the civil Court to take cognizance of the case, though the defendant did not admit that the plaintiff had any proprietary interest. In that case certain lands which were entered in the record of rights as mal (lands for which revenue was paid by the zamindar) and assessed with rent were claimed by the plaintiff as lakhiraj, while the main defence of the zamindar was that the lands were not lakhiraj but rent paying mal. It was held that a lakhirajdar was proprietor and that the plaintiff was entitled to maintain the suit because he claimed a title hostile to the zamindar, asserting that the lands were his valid lakhiraj and that he had held the same as lakhiraj for more than 12 years adversely to the zamindar. If this decision is correct. (and it has not been suggested that it is not), there seems to be no reason why the section should not be held to apply to cases where the dispute is between two rival claimants, each claiming to be the proprietor of the same property. The section obviously will have no application to disputes between a landlord and a tenant or to cases where one of the parties neither is nor asserts himself to be a zamindar even though the other party may be a zamindar and where there is no dispute as to any proprietary right between them. It will, however, be unduly restricting the scope of the section and defeating the purpose for which it has been enacted to hold that it will not apply unless each party admits the other party to be a zamindar or proprietor. If the interpretation that we suggest is correct it appears to us that a suit by the plaintiffs was clearly maintainable in the civil Court because in the present suit both the plaintiffs and the defendant claim to be the proprietors of the Handwe properties. If however a more rigid and literal interpretation is demanded, even then, as the respondents contend, the present suit will be maintainable because according to the last record of rights prepared under the order of the Commissioner the plaintiff is described as the zamindar of Kharagpur and defendant 1 is described as the proprietor of Handwe. In any view of the matter it appears to us that S. 25A is no bar to the present suit.

We have dealt with the issues relating to res judicata and estoppel, while dealing with the various proceedings in connection with which these pleas--and we may observe here that as no arguments were addressed to us as regards issues 1, 2, 3, 4, 5, 6, 9, 26, 27, 28 and 29--we consider it unnecessary to deal with them. We also consider it unnecessary to deal with issues 10 and 11 in view of our finding that the payment which is annually made by the ghatwals of Handwe to the zamindars of Kharagpur is rent and not revenue. When this modification of the Commissioner''s order is made it cannot be said that the revenue settlement of mahalat Kharagpur has been in any way affected.

We shall now pass on to the appeal arising out of the four rent suits. Appeal No. 21 arises out of Rent Suit No. 1 of 1923 which was re-numbered 2 of 1927. The suit was brought against Kumar Satya Narain Singh, the last holder of the Handwe properties, for recovery of rent for the year 1328-29 Fasli Kumar Satya Narain Singh died on 7th May 1924 during the pendency of the suit and defendant 1 was substituted in his place. Appeal No. 22 arises out of rent suit No. 2 of 1923/12 of 1927 which was also instituted against Kumar Satya Narayan Singh for the rent of 1330 Fasli. Appeal No. 23 arises out of a suit instituted in the year 1925 against the appellant for the recovery of the rent for the years 1331-32 Fasli. Part of the rent claimed in this suit accrued due during the lifetime of Kumar Satya Narayan Singh and the remainder became due after his death when the appellant succeeded to the property. Appeal No. 20 arises out of a rent suit instituted in 1923 against the the appellant to recover rent for the years 1333 to 1335 Fasli which accrued due after the estate came into the possession of the appellant. It is not denied by the appellant that the amounts claimed fell due as alleged by the plaintiffs and that the claims are still unsatisfied, but the only contention which has been advanced in this appeal is that the appellant is not liable for such rent and cesses as fell due during the lifetime of Kumar Satya Narayan Singh.

We may state here that this contention was not raised at all in the trial Court and was raised before us not only at a very late stage but under very peculiar circumstances which ought to be mentioned. What happened was that Sir Sultan Ahmand who has argued the case for the appellant only casually mentioned the point in the course of his opening address but he subsequently told the Court definitely that he did not press the point. Later on, after he had concluded his argument and when the argument for the respondents was in progress he told the Court that on second thought he had made up his mind to contest the liability of the appellant for the arrears of cess which had become due during the lifetime of Kumar Satya Narayan Singh, but he did not contest her liability so far as the arrears of rent were concerned. Almost at the, conclusion of the hearing Mr. Sushil Madhab Mullick, one of the learned advocates who appeared with Sir Sultan Ahamad for the appellant, intimated to the Court that he now wished to press the contention that the appellant was not liable also for such rent as had fallen due while the estate was held by Kumar Satya Narain Singh. In addressing the Court on this point he claimed it to be one of the incidents of a Government Ghatwali tenure that the present holder of the estate should not be liable for any rent that may have fallen due during the lifetime of the last holder and in support of this contention the learned advocate cited cases which may be here referred to. In Kastoora Koomaree v. Binode Ram Sein, (1865) 4 WR (Misc) 5, the appellant, a widow whose ghatwali property was under the management of the Court of Wards, objected to the execution of decree obtained against her deceased father-in-law on the ground that the execution could not proceed against the profits of the ghatwali estate held by the Court of Wards in trust for the widow of the late proprietor. The Court of Wards realising the justice of the claim had not objected to the execution and so the Judge had allowed the execution to proceed. The High Court in appeal upheld the order of the Judge on the ground that the appellant being under the Court of Wards had no power to object but observed as follows:

Ghatwali tenures are not liable either to sale or attachment in execution of decree (vide Suddar Dewanny Adalut Reports, 1st September, 1833). These are grants of laud given in payment of service; and, although the custom of the country has made them hereditary they had in no otherwise changed their original character. They are life tenures only, and the incumbent for the time being has no power to burden them after his death, with any of his personal liabilities. It is not denied that the money now in the hands of Court of Wards represents the profits of the land for a period subsequent to the judgment-debtor''s death, and it ought not in justice to be appropriated to pay that person''s individual debts.

In Benode Ram Sein v. Deputy Commissioner of Santal Pargnas (1867) 7 WR 178, it was held with reference to regulation 29 of 1814 which relates to Birbhum ghatwalis that a ghatwali tenure cannot be subject to any encumbrance created or debt contracted by any of the previous holders. In Rajah Nilmonee Singh v. Bukro Nath Singh, (1868) 10 WR 255, it was held that a suit would not lie against a jagirdar holding certain tenures on account of arrears of rent unpaid, by his predecessor. The ground for this decision was stated thus by Jackson, J.:

If the landlord neglected to realize the rent from the former incumbent year by year and claimed to recover the arrears of several years at once from the new jagirdar, he will be necessarily deprived of the funds which will en-, able him to perform the services and to support himself as originally contemplated.

In Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC), Sir Barnes Peacock referred with approval to the last decision and observed that:

the ease is expressly in point, for, if a successor is not liable for rent of the jagir due from his predecessor, it follows a fortiori that he may not be liable for an ordinary debt.

It will be seen that the only case in which the question of the liability of a jagirdar holding a service tenure for arrears unpaid by his predecessor directly arose was that of 10 WR 255 (51). Learned Counsel for the respondents assails the correctness of this decision and characterizes the observations made by Sir Barnes Peacock in Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC), as mere obiter dicta, his contention being that no question of the jagirdar''s liability for rent which had accrued due during the lifetime of his predecessor arose in that case. He has to distinguish the decision in question by pointing out (1) that in the present case the landlords have not neglected to realise the rent regularly from the former holder of the property but that there has been through a persistent and obstinate refusal to pay rent; (2) that the services said to be renderable by the appellants have not been rendered for long time and have now fallen into desuetude which was not the case so far as Bakra Nath Singh was concerned as is apparent from the fact that the Government supported him even in 1812 in the litigation which went up to the Privy Council and was disposed of by the judgment of Sir Barnes Peacock in Nilmoni Singh v. Bakra Nath Singh, (1883) 9 Cal 187 = 9 IA 104 = 4 Sar 335 (PC); and (3) That in the present case it has been shown that decrees were obtained in the past against the holders of Handwe for amounts which accrued when the properties were in charge of their predecessor and decrees were realized without any objection on the part of the owner. We considered it unnecessary to deal with any of these grounds because the appellant''s contention may be disposed of on a clearer and more important consideration.

It is not seriously denied that the point raised now was not raised at all in the trial Court and this is the view which is fully supported by a perusal of the record of the case. From the record of Appeals Nos. 21 and 22 it appears that one of the points taken in the written statement of defendant 1 (appellant) was that the plaintiffs had no cause of action against this defendant (see para. 28 of the written statement.) Learned counsel for the respondent however has shown that this statement occurred even in the original written statement filed in these suits by Kumar Satya Narain Singh (see para. 24 of the written statement filed by him in these two suits) and was bodily reproduced in the written statement filed by the appellant when she was substituted in the proceedings in place of her husband. Why Satya Narayan, in whose life time the rent bad admittedly become due, had stated in the written statement that the plaintiffs had no cause of action against him has not been explained and there can be no doubt that para, 28 of the appellant''s written statement is a verbatim copy of para. 24 of Satya Narayan''s statement. In this country one finds in the majority of suits a conventional and stereotyped plea that the plaintiff has no cause of action and we have no doubt that the paragraphs in the written statements of Kumar Satya Narayan Singh and the appellant to which we have referred were no exception to this practice and were inserted as a matter of form. At p. 13 of the proper-book of Appeal No. 21 where issues framed in suit No. 1/II of 1923 are enumerated we find that the seventh issue runs thus: "Has the plaintiff any cause of action against the defendant?" This issue however was subsequently struck off and it appears from order No. 101 passed by the Subordinate Judge on 19th June 1930 that it was struck off because it was not pressed. In the record of Appeal No. 23 no such issue appears to have been raised at all even though a portion of the amount claimed had fallen due when Kumar Satya Narayan was alive. It is also quite clear that the matter was not agitated in any form before the trial Court. When the appeal was preferred in this Court a ground was taker in the memorandum of appeal that the lower Court should have held that the defendant appellant was not liable for the amount which had fallen due before she came in possession under the ghatwali laws. As we have already stated this ground was in the first instance abandoned at the time of the argument. We have already given an account of what followed afterwards and the manner in which the junior section of the legal representatives of the appellant tried to revive this abandoned contention and as was to be expected, learned counsel; for the respondents vehemently protested against the line of fiction taken by the appellant''s lawyers. After a care full consideration of the matter we find ourselves in complete sympathy with the learned counsel for the respondents and we think that the contention should not be allowed to be raised at this stage.

Whatever the privileges of a Government ghatwal may be it is well settled and it is also conceded by the appellant that any surplus proceeds of the property which accrued due during the lifetime of the appellant''s predecessor and have now come into her hands can be followed for the purpose of realising the rent for which he was liable in his lifetime end that the decree can be realized from the appellant'' so far as she is in possession of those amounts. In every case therefore of this kind it is a question of fact whether the succeeding ghatwal has come into possession of an asset of the deceased and, if so, whether those assets are sufficient to pay off the rent that was due during the lifetime of his predecessor. If the appellant had denied her liability in the written statement or contested it at the trial it would have been open to the plaintiffs (now, the respondents) to show that she had in her possession sufficient assets of the deceased and was liable to pay his, dues to the extent of those assets'' Defendant 1 however not having given the opportunity to the plaintiffs to do so at the trial and not having denied her liability in so many words in her written statement for the rent which accrued due during the life time of her predecessor it would be unfair to allow her to do so for the first time in appeal. We doubt that the decision in Rajah Nilmonee Singh v. Bukro Nath Singh, (1868) 10 WR 255 would have been what it was if it had been shown that the ghatwal or the jagirdar had mixed up the surplus proceeds of his predecessor''s time (which were liable to be followed for his debts or for the rent due from him) with the income which, had accrued since he took charge of the property. The trial Court dealing with the claims of the plaintiffs in rent suit found

the accounts given in the plaint are not challenged by the learned Advocate for the defendant; they are entitled to get the sums claimed in the four rent suits.

In this Court also it was neither suggested nor argued that the amount which is alleged to be due was not in fact due and in our opinion therefore the appeals in the four rent suits must be dismissed. The only matter that remains to be dealt with now is the respondents'' cross-objection filed in these appeals and they relate to the interest pendente lite and future interest on the amounts claimed and decreed respectively. No such interest has been awarded by the Court below and what the respondents contend is that in justice they ought to have been allowed some interest. In our opinion the Court was right in not allowing interest pendants lite, but future interest should have been allowed. It appears that the plaintiffs applied to the Subordinate Judge who was to hear the title suit for an order to hear the rent suits consecutively. The Subordinate Judge rejected the application and so the matter was brought up before the High Court where the following note was made in the order of the learned Judges who disposed of the plaintiff''s'' application:

The defendant does not object to the course proposed by the plaintiffs, She only asks that the may not be saddled with the interest for the period during which......the hearing of the rent suit is stayed on account of the application of the plaintiffs. The plaintiffs agree to give up interest for this period and under these circumstances we see no reason why the three cases should not be heard together one after the other.

It appears that the hearing of the rent suits was considerably delayed owing to the action of the plaintiffs and therefore the learned Subordinate Judge was right in not allowing interest pendente lite, but we find no reason why the plaintiffs should be deprived of interest from the date of the decree to the date of realization and we accordingly direct that the plaintiffs shall get interest at six per cent per annum on the decretal amount from the date of the decree of the lower Court to the date of realisation. In conclusion in appeal No. 19 of 1931 we hold : (1) That the property to which the suit relates is a Government ghatwali heritable, inalienable and indivisible. (2) That the said property is in relation to the Kharagpur zamindari, a dependent taluk in the sense in which the expression has been used in S. 14, Regn. 1 of 1801. (3) That the plaintiff-respondents are the superior landlords and are entitled to realize the sum of Rs. 2,171 as rent plus such cesses as may from time to time be chargeable to the appellant''s estate. The rent is not liable to be enhanced. (4) That the appellant possesses the ordinary rights of a proprietor of the soil and particularly such property rights as referred to in the Santal Parganas Manual 1925, Edn. 2, p. 167 and is also liable to perform such duties as are enumerated therein. (5) That the ghatwali estate being inalienable it follows that it cannot be sold in execution of a decree for rent, cesses or any other dues secured or unsecured. The Government however can dismiss the ghatwali for any misconduct in relation to his office and in our opinion deliberate and persistent defaults on his part to pay rent may constitute such is conduct inasmuch as one of the conditions of the giant under which the Handwe properties are held is that the holders of the properties are liable to pay a certain annual sum and that sum has now been made payable to the zamindars of Kharagpur. (6) That the entry in the settlement record should stand subject to this modification that the relation between the two estates inter se should be described in manner indicated in Cls. (2), (3) and (4).

No opinion is expressed as to the rights of the parties or the Government to the underground minerals. Appeal No. 19 is therefore allowed and the decree of the Court below is set aside except in so far as it has been found that the plaintiffs are superior landlords and defendant 1 is liable to pay an annual rent to them. As to costs, as the appellant has not been wholly successful, we award only half the costs both in this Court and in the Court below. The other appeals are dismissed with costs and the cross-objections are allowed with costs in proportion to the plaintiff''s success.