had been reserved on the part of Government to impose an assessment upon the six villages, in addition to the fixed revenue of the estate, in consideration of an unknown assignment for an unknown object being no longer to be maintained. If the zemindar's claim in this suit be barred by Clause 4, Section VIII., Regulation I. of 1793, it would follow that a suit would lie at the instance of Government to resume the villages. No facts are adduced, however, which would render any such claim possible; and for reasons still stronger than those which satisfied the Judicial Committee of the Privy Council in the case of Raja Neelanund Singh, the suit, if preferred, would have to be thrown out. Here the position of Government is reversed. Government is defendant. But the argument as to the inapplicability of Clause 4, Section VIII., Regulation I. of 1793, is equally cogent in the present case ; and it should be held I think, that by the operation of this Clause the zemindar is not incompetent to assert his interest in the disputed villages. The villages it is said are held by ghatwals, and therefore should be considered appropriated to police purposes. All that we know, all that is proved, upon this point is, that the raja, zemindar of Chatna, in 1808, filed a schedule of the villages, in which they were represented as held by ghatwals, who also paid him rent as his tenants: or at the earliest, we may go back to 1804, in which year a somewhat similar schedule, rejected by the respondent, but relied upon by the appellant, is said to have been presented. Thus we have evidence that in the eighteenth, possibly the fourteenth year subsequent to the permanent settlement, the villages in question were being enjoyed on the footing of a ghatwally tenure; but we have no ground to conclude from this fact that they had been excluded from the settlement of 1790, and were specially appropriated for the maintenance of a police thana. And moreover, apart from the facts of the present case, it may be remarked that the judgment of the Privy Council, in the appeal above quoted, very carefully distinguishes between lands held ghatwally and the police lands contemplated in Clause 4, Section VIII., Regulation I. of 1793. The former, it is said," could not properly be considered as lands, of which the zemindars had been permitted by the Government to appropriate the produce to the maintenance of thanna or police establishments." And again" the services of ghatwals, although they would include the duties of police, were quite as much in the origin of a military as a civil character, and would require the appointment of a very different class of persons from ordinary police officers." I have not now to consider whether the tenure of the ghatwals in this action corresponds with that discussed in the suit of Raja Neelanund Singh; and all that it is important to notice now is, that the mere existence of a *Moore's Indian Appeals, Vol. VI, page 101. ghatwally tenure (that is, of a tenure commonly so designated irrespective of the relative rights of the zemindar and tenants) does not bring the lands within the provisions of Clause 4, Section VIII., Regulation I. of 1793; and on the contrary, it is to be inferred from this judgment that ghatwally lands do not fall within the scope of that Clause. For these reasons it seems to me that the grounds of the objection laid before us by the only respondent present in the appeal, that is, the Government, cannot be sustained. It is established, first, that by the constitution of the estate at the time of settlement, the six villages sued for were held to form part of the estate, upon the possession of which the obligation of paying revenue was imposed; and next, the respondent has failed to shew why the zemindar, plaintiff, should be withheld from enforcing the rights which the relation existing between himself and his tenants may open up to him. Admitting then that plaintiff has a good cause of action, the proper relief to be given, having due regard to the apparent possessory interests of the absent tenants, is, I feel, a question of considerable difficulty. Those tenants who are in fact the substantial defendants in the cause do not come before us to oppose the plaintiff's claim. The answers made by them below I have already quoted. They set up a mookururee talook; but we have no proof that any definite engagement binding on the zemindar was ever entered into, or that the tenants hold the villages subject to a determinate rent. In the schedule of 1808, three villages are shewn to contribute rupees 91 to the zemindar, and the three others are put down as being held by the same tenant (malgoozar.) In the schedule of 1804, the relation of the tenant and zemindar takes another shape, for, instead of the rent payable by the tenant being set forth, the quantity of land assigned to him purports to be specified, that is 64 measures, whether beegas, as asserted by plaintiff, or rekes, as otherwise contended. Now, allowing that some doubt as to the authenticity of this paper is suggested, the question as to its efficacy is comparatively unimportant, the nature of the occupancy of the tenants being altered in the form presented to us in the unexceptionable schedule of the later year. Further, this paper of 1808, besides setting forth a rent of rupees 91 derivable by the zemindar, purports to give the number of" chowkeedars, dig. wars, ghatwals, and jageerdars" for each village: no distinction is drawn between the four classes of persons, but the total number connected with each village is given, three in Soosooua, two in Basooara, one in Muttyala, and so on. Whether then from this schedule or from the terms of the plaint, we have the admission on the part of the plaintiff that the possession of the six villages carried with it the obligation affecting both zemindar and tenants, of maintaining certain watchmen or guards. This obligation may have originated and as I think probably did originate from motives of mutual protection; and it may correspond in some respects with the immemorial usage common to all rural communities of supporting a village watch but howsoever derived, nothing, I apprehend, can be said now to lessen the weight of this customary territorial charge. Upon the whole, the relative position of the zemindar and tenants appears to me to have been this: the tenants held the immediate Occupancy of the villages subject to the payment of an indeterminate rent and to the maintenance of a village guard, they making what they could out of the villages while this arrangement lasted. So it seems to me in conformity with this general finding as to the rights of the parties, should our order run. I would hold that the zemindars had assigned a right of occupancy, ratified by time, to whatever portion of the land of each village the tenants had cultivated or otherwise appropriated excluding unclaimed forest or waste; that the tenants are liable to pay wasilat or more properly rent, less the customary per centage for expences and tenants' profit and loss, also the expences incident to the support of the usual guards; and that possession of the unreclaimed land should be delivered over to plaintiff. From this conclusion plaintiff is partly right and partly wrong in his action. He is right in so far as he is entitled to recover the unreclaimed land of the villages, and he is wrong in so far as he is incompetent to disturb the prolonged occupancy of his tenants which he himself encouraged, so long as they pay their due rent. And again, he is right in requiring the obligatory nature of the ghatwally tenure to be determined. Upon the whole then, considering the difficulty in which the plaintiff has been placed from the rejection of his first suit, I think the order which I should propose to make should have effect from the date of the present claim. THE 20TH NOVEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, ESQ., Officiating Judges. Special Appeals from the decision of Baboo Punchanun Banerjea, CASE NO. 190 OF 1858. MUSST. RAMSOONDREE DEBEA CHOWDRAIN, versus CHUNDERSEKHURREESHUR ROY AND OTHERS, Vakeel of Appellant-Baboo Kishensukha Mookerjea. CASE NO. 191 OF 1858. TARINEECHUNDER PAKRASSEE AND OTHERS, (DEFENDANTS,) APPELLANTS, versus KOMULNARAIN MITTER, (PLAINTIFF,) RESpondent. THESE cases were admitted to special appeal on the 17th March 1858, under the following certificates recorded by Messrs. B. J. Colvin and J. S. Torrens. Case remand ed for trial on the merits, with reference to the Court's August 1858, precedent, 10th nissa's case,) relative to period allowed from the deci sions of moon for appeals MR. J. S. TORRENS." In these cases petitioners, according to what had previously been the received practice of the Court, filed their petitions of appeal from the decisions of the moonsiffs, within (Hubeebooone month, but were permitted to defer the filing of the oojoohat or reasons of appeal until afterwards; the practice being to give six weeks time for so doing. The judge and principal sudder ameen, however, adverting to a decision of this Court, dated the 8th of January last, and holding that they had no power to extend the period for completing the petition of appeal, have struck petitioner's appeals off; and it is urged that the former practice of the Court should have been held sufficient ground for an extension of sitt's. time being admitted, so as to allow of petitioner's appeals being heard on the merits. I admit the special appeals to try, whether under the circumstances of the petitions having been admitted without the grounds of appeal, which were afterwards also filed, and with reference to the practice which has obtained, the judge should not have allowed time so as to hear the cases on the merits." MR. B. J. COLVIN.-"I concur in admitting these appeals, as others have been admitted to try similar points." JUDGMENT. Referring the principal sudder ameen to the decision of this Court in the case of Hubeeboonissa, appellant, passed on the 10th August of the present year, we remand these appeals, to be tried on the merits. THE 20TH NOVEMBER 1858. PRESENT: H. T. RAIKES, Esq., Judge. C. B. TREVOR, Esq., 1 H. V. BAYLEY, Esq.,} Officiating Judges. Special Appeals from the decision of Mr. G. L. Martin, Officiating Judge of Sarun, dated 4th March 1857, affirming a decree of Syed Mahomed Wajid, Moonsiff of Sewan, dated 4th April 1856. CASE NO. 811 OF 1857. MAHOMED SUKHEE alias SUKHAWUT HOSSEIN, (ONE OF THE DEFENDANTS,) RESPONDENTS, versus SHEIKH MAHOMED BUKSH AND OTHERS, (PLAINTIFFS,) AND MUSST. SAKARA AND OTHERS, (DEFENDANTS,) RE SPONDENTS. Vakeel of the Appellant-Moulvee Aftabuddeen Mahomed. Hossein. |