Judgment

DAS, J. - This appeal has came up for hearing before us on transfer from the Privy Council. The appellant is the present holder of Taluk Kakwara which appertains to Mahalat Kharakpur. The respondents represent the Banaili Raj which has also acquired the Mahalat of Kharakpur. The respondents obtained a decree for Rs. 11,537-14 6 against the appellant for arrears of rent and cess and applied for execution of their decree by the attachment and sale of Taluk Kakwara. On 29th August 1939, the appellant judgement debtor filed an objection under S. 47, Civil P. C. alleging that as Taluq Kakwara was held on Ghatwali tenure it could not be sold in execution of a money decree. This objection was rather too wide, for all lands held on Ghatwali tenure were not necessarily inalienable. Indeed, in Kali Pershad Singh v. Anund Roy, 15 Ind. App. 18 : 15 Cal, 471 which related to the Ghatwali mahal of Kharna within the Mahalat of Kharakpur the evidence clearly established a number of instances in which there had been unquestioned transfers and sales applicable to Mahals in Kharakpur and it was held by the Privy Council that the true view to take was that such a tenure in Kharakpur was not inalienable, and might be transferred by the Ghatwal or sold in execution of a decree against him, if such transfer or sale was assented to by the Zamindar. A sale at the instance of the Zamindar in execution of a decree for arrears of rent necessarily implies the existence of such assent. In the latter case of Satya Narain Singh v. Niranjan Chakravarti, 51 Ind. App. 37 which related to the Ghatwali Mahal of Handwa Lord Sumner recognised that the decision of the Privy Council in the Kharna Ghatwali Mahal case was fully supported by the evidence adduced in that case and that that authority had been repeatedly followed and applied in India, and, so far as the reports showed without proof of the custom being required over again. Lord Sumner, however, pointed out that it was plain that as the custom depended on proof, and as the tenure in question was one in the Zamindari of Kharakpur and under its Zamindar, it could have no reference to Ghatwali tenures not under him nor forming part of his Zamindari. The Privy Council in the later case referred to above saw no ground for thinking that the custom of Kharakpur had any application to Ghawali tenures, which like Handwa, were independent of the Kharakpur Zamindari, even though they might be not far off Kharakpur. In short, it may be said to be well established - and the contrary has not been urged before us - that Ghatwali tenures held under the Zamindar of Kharakpur were by custom judicially recognised, alienable with the assent of the Zamindar while Ghatwali tenures like Handwa held under the Government direct were inalienable. In this state of the authorities, the appellant judgement debtor on 31st May 1940 filed a fresh petition of objection under S. 47 of the Code claiming that Taluk Kakwara was held under a Government Ghatwali tenure. The principal question for determination in those execution proceedings was whether Taluq Kakwara was a Government Ghatwali as alleged by the appellant judgement debtor or was a Zamindari Ghatwali held under themselves as claimed by the respondents-decree-holders.

2. The learned Subordinate Judge held that Taluq Kakwara was a Zamindari Ghatwali under the Raja of Kharakpur and overruled the objection of the judgement-debtor. The judgement debtors appealed to the High Court. The appeal came up for hearing in the first instance before a Bench consisting of Manohar Lal and Shearer JJ. Manohar Lal J. came to the conclusion that Taluk Kakwara was a Government Ghatwali and was inclined to allow the appeal. Shearer J, took the view that while Taluk Kakwara was at one time a Government Ghatwali, it ceased to be so and became and remained a Zamindari Ghatwali and as such was alienable and was inclined to dismiss the appeal. In view of this difference of opinion, the appeal was refer