Judgement

Law Rep. 58 Ind. App. 9 ( 1930- 1931) Bageswari C haran Singh V. Kumar Kamakhya Narain Singh 161

Appeal (No. 47 of 1928) from a decree of the High Court (January 21, 1927) reversing a decree of the Additional Subordinate Judge of Hazaribagh (December 22, 1922).

The plaintiff-respondent, who was zamindar of the Ramgarh estate, instituted a suit against the appellant (who was defendant No. 10),his grandfather Jado Charan Singh (defendant No. 1, since deceased), and other members of the appellants family. The plaint claimed a declaration that the defendants had no right to the minerals underlying villages mentioned therein, an injunction, and further relief. The respondents case was that the villages in question constituted a rent-paying jagir held by the defendants under a grant from one of the respondents ancestors. In the record-of-rights made in 1915 under the Chota Nagpur Tenancy Act, 1908, the tenure had been so recorded. The appellant by his statement of defence denied that the villages were a part of the respondents zamindari and contended that they had been acquired by his ancestor by force of arms and that he was proprietor and entitled to the underlying minerals. He alleged that his annual payments to the zamindar were not rent, but revenue payable through the zamindar to Government in respect of all the villages except Dharguli and Chalkusa ; as to those two villages, which were situated in the Rampur pargana, he alleged that after the decennial settlement the Government remitted the revenue and constituted them lakhiraj.

A pedigree, from which it appears that the appellant was of the senior, and the zamindar of the junior branch of the same family is printed in the present judgment; the facts as to the remission of revenue also are there stated.

Both Courts in India found that all the villages in suit were part of the estate as settled at the decennial settlement.

The trial judge found on the evidence that the presumption under s. 84,-sub-s. 2, of the Chota Nagpur Tenancy Act, 1908, that the entry in the record-of-rights, was correct, had been rebutted; accordingly he dismissed the suit.

Upon appeal the decision was reversed and a decree was made as prayed. Mullick J. (with whose judgment Sahay J. agreed) found that the defendants had failed to rebut the presumption arising under the entry in the record-of-rights, and that the plaintiff had established that the entry was correct; he held therefore that the defendants tenure was a khorposh jagirdari at an annual rental. He was of opinion that the defendants had not shown that they were independent talukdars.

1930. July 16, 18, 21, 22. De Gruyther K.C. and Dube for the appellant.

Upjohn K.C, L. P. E. Pugh, and Wallach for the respondent.

Oct. 21. The judgment of their Lordships was delivered by

SIR JOHN WALLIS. In this, as in the case of Charu Chandra Ghose v. Kumar Kamakhya Narain Singh (Infra, p. 17.), in which judgment has just been delivered, the main issue is as to the correctness of an entry in the khewat, or record-of-rights, of the Ramgarh zamindari prepared under the provisions of the Chota Nagpur Tenancy Act, 1908. Sect. 84, sub-s. 3, of that Act imposes on parties challenging such an entry the burden of proving by evidence that it is incorrect.

The suit is brought on behalf of the minor Raja of Ramgarh for a declaration that the defendants have no right to the minerals in the villages held by them and for an injunction and damages. The claim for

Law Rep. 58 Ind. App. 9 ( 1930- 1931) Bageswari C haran Singh V. Kumar Kamakhya Narain Singh 162

damages has been withdrawn. The defendants denied that they derived title from the plaintiff or his predecessors in title, and alleged that they themselves were the owners of the villages and of the subjacent minerals.

In the khewat the defendants tenure is entered as jagir held under the Raja of Ramgarh resumable after the family of Fateh Singh, the supposed grantee, becomes extinct without any heirs being left