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1930 Supreme(SC) 77
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, LORD MACMILLAN, AND SIR JOHN WALLIS.
SIR CHARU CHANDRA GHOSE - Appellant
Versus
KUMAR KAMAKHYA NARAIN SINGH - Respondents
On Appeal from the High Court at Patna.
Decided On : Oct. 21. 1930.
Solicitors for appellant:Watkins & Hunter. Solicitor for respondents: Solicitor, India Office.
Entries in the record-of-rights are presumed correct under the Chota Nagpur Tenancy Act unless proven otherwise. Furthermore, a prior judgment regarding revenue-paying lands does not constitute res judicata for a separate claim concerning revenue-free (nankar) lands already in the party's possession.
Headnote:(A) Chota Nagpur Tenancy Act, 1908 - Section 84(3) - Presumption of correctness of record-of-rights - Where an entry in the record-of-rights (khewat) describes a taluk as a shamilat or shikmi taluk, such entry is presumed to be correct until proven otherwise - The onus of proof lies heavily on the party seeking to rectify the entry or claiming a different tenure. (Paras 10, 11)
(B) Land Tenure - Jagir vs. Shamilat Taluk - A jagir is typically a grant resumable on the failure of the direct male line, whereas a shamilat or shikmi taluk involves proprietors who pay government revenue through a zamindar for convenience - The nature of the tenure is determined by the history of possession, the nature of revenue payments, and whether the lands were held as nankar (revenue-free) ancestral holdings. (Paras 12, 21, 23)
(C) Code of Civil Procedure - Section 11 - Res Judicata - A previous judgment concerning the restoration of malguzari (revenue-paying) lands does not operate as res judicata against a subsequent claim for a declaration regarding nankar (revenue-free) lands already in the party's possession, as the subject matter and the relief sought are distinct. (Paras 27, 28, 29)
Facts of the case:
A suit was instituted for a declaration that certain villages were held as a resumable jagir upon the failure of the lineal male descendants of the grantee. The record-of-rights prepared under the relevant tenancy act recorded the villages as a shamilat or shikmi taluk. The plaintiff claimed the estate was granted as a jagir in the 18th century and argued that a prior court decision from 1792 operated as res judicata. The defendants contended that the lands were ancestral zamindari nankar lands and that the revenue arrangement was for convenience, making it a shamilat taluk.
Findings of Court:
The court found that the plaintiff failed to discharge the statutory burden of proving that the entries in the record-of-rights were incorrect. Historical evidence, including reports and letters, indicated that the holders were recognized as zamindars of nankar lands long before the alleged jagir grant. The revenue payments made were consistent with nankar assessments rather than a jagir tenure. Additionally, the 1792 suit pertained to revenue-paying lands and not the revenue-free lands in possession; thus, it did not bar the current claim.
Issues: Whether the plaintiff successfully rebutted the presumption of correctness of the record-of-rights entry and whether the judgment in a prior suit regarding different land categories operated as res judicata.
Ratio Decidendi: The court ruled that the statutory presumption of correctness of the record-of-rights prevails unless clear evidence proves otherwise. The evidence of nankar status and the specific nature of revenue payments supported the classification of the estate as a shamilat taluk. Furthermore, res judicata does not apply when the previous litigation involved different categories of land (malguzari vs. nankar).
Result: Appeal allowed; decree of the High Court reversed and decree of the Subordinate Judge restored.
Appeal (No. 92 of 1927) from a decree of the High Court (March 11, 1926) reversing a decree of the Additional Subordinate Judge of Hazaribagh (April 18, 1922).
The suit was instituted in 1920 on behalf of the respondent, the Maharaja of Ramgarh, a minor, for a declaration that a taluk called Jagodih, consisting of certain villages which were included in his zamindari at the permanent settlement, was a jagir resumable on the failure (which had occurred
Law Rep. 58 Ind. App. 17 ( 1930- 1931) Charu Chandra Ghose V. Kumar Kamakhya Narain Singh
167
admittedly) of lineal male descendants of the grantee, and for possession. He contended that an entry in the record-of-rights prepared under the Chota Nagpur Tenancy Act, 1908, to the effect that the taluk was a shamilat or shikmi taluk of his estate was incorrect. The present appellant was defendant No. 3 and claimed to hold a share in Jagodih by right of purchase.
The trial judge dismissed the suit on the ground that the evidence showed that the plaintiff had no proprietary rights ; he held that the defendants were not barred or estopped from so contending.
On appeal the decision was reversed and a decree was made as prayed. The learned judges held that the defendants were mere jagirdars; further that a decision in 1793 operated as res judicata to prevent the defendants from now claiming a proprietary right.
1930. July 1, 3, 4, 7, 10, 11, 14, 15. De Gruyther K.C., Dunne K.C. and Dube for the appellant.
Upjohn K.C., L. P. E. Pugh and Wallach for the respondent.
The arguments were chiefly upon the facts appearing from the documentary evidence. Reference was made to Juggut-mohinee Dossee v. Sookhemony Dossee (( 1871) 17 Suth.
W. R. 41 P. C.); Sonet Kowar v. Himmut Bahadoor (( 1876) L.R. 3 I. A. 92.); Chattra Kumari Devi
v. Broucke (( 1927) L. R. 541. A. 432.); Kumar Kamakhya Narain Singh v. Bhuvaneshwar Lal Singh . (( 1928) I. L. R. 7 P. 595.)
Oct. 21. The judgment of their Lordships was delivered by
SIR JOHN WALLIS. This is an appeal from a decree of the High Court at Patna reversing the decree of the Additional Subordinate Judge of Hazaribagh and decreeing the suit brought by the Court of Wards on behalf of the minor zamindar of Ramgarh for a declaration that the suit villages forming the Jagodih estate are an ordinary jagir of the Raj resumable on failure of the direct male line of the grantee, and are not a shamilat or shikmi taluk of the Ramgarh estate as recorded in the " khewat " or record-of-rights of the zamindari made by the Settlement Officer under the provisions of the Chota Nagpur Tenancy Act, 1908.
The adjoining parganas of Chai and Champa, one to the north and the other to the south of the Barrakur river, form part of the Ramgarh zamindari in the Hazaribagh district of Chota Nagpur. The Jagodih estate is situated in Chai, and is one of several estates in these parganas which were recorded in the settlement as shamilat taluks—that is to say, taluks in which the talukdars or proprietors now pay the Government revenue to the zamindar instead of paying it directly to Government. Although this dependence is strictly limited, these estates have also acquired the name of shikmi, or belly, taluks, as being now in the maw of the zamindar, who has sometimes been tempted to claim them as portions of his own estate held on jagir tenure and resumable in certain events. In recent years the question has assumed increased importance as affecting the ownership of minerals.
In this, as in the Barsote case, Surendra Nath Karan Deo v. Kamakhya Narain Singh (P. C. Appeal No. 89 of 1927. The judgment of the Board (Lord Sumner, Lord Thank erton, Sir John Wallis, and Sir Lancelot Sanderson)), the Raja of Ramgarh is seeking to establish that this estate is held under him on jagir tenure. In that case the Board, agreeing with the Subordinate Judge, allowed the defendants appeal and dismissed the suit on the ground that as no suit had been brought in the Revenue Court to rectify the
