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1926 Supreme(SC) 11
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
VISCOUNT FINLAY, LORD PHILLIMORE, LORD BLANESBURGH LORD SALVESEN, AND SIR JOHN EDGE.
SECRETARY OF STATE FOR INDIA IN COUNCIL - Appellant
Versus
RAJA JYOTI PRASHAD SINGH - Respondents
On Appeal from the High Court at Calcutta.
Decided On : March 6. 1926.
Solicitor for appellant, the Secretary of State : Solicitor, India Office.
Solicitors for appellant companies : Sanderson, Lee & Co.
Solicitors for respondent: Downer & Johnson.
The burden of proof rests on the claimant to establish that disputed lands are part of a permanently settled estate. Where evidence and long-term usage contradict such a claim, and the theory of thanadari lands is unsupported, the claimant cannot establish ownership of the land or its minerals.
Headnote:(A) Regulation I of 1793, Section 8, Clause 4 - Regulation VIII of 1793, Section 41 - Permanent Settlement - Ownership of land and mineral rights - Burden of proof - Whether certain lands held by service tenures form part of a permanently settled estate - Onus on the claimant to prove that disputed lands are included in the zamindari - Failure to discharge onus - Theory of thanadari lands - If lands are thanadari, they are resumable by the Government - Long-term possession and usage inconsistent with the theory that lands were thanadari lands not yet resumed - Where lands are not part of the permanently settled estate, the claimant is not entitled to the minerals underlying them. (Paras 15, 25, 38)
(B) Interpretation of ancient grants - Where general words of an ancient grant are uncertain, they may be fairly explained by subsequent usage. (Para 40)
Facts of the case:
A suit was brought to establish rights over certain lands held by service tenures and the minerals underlying them, seeking an injunction to restrain the defendants from working coal mines. The claimant alleged that the lands were included in his permanently settled estate. The defendants contended that the suit was barred by limitation due to adverse possession, that the lands were not permanently settled, and that the minerals remained the property of the Crown.
Findings of Court:
The claimant failed to discharge the onus of proving that the disputed lands formed part of the zamindari. The kabuliyat and subsequent revenue records did not include the lands in question. The court found that the theory that the lands were thanadari lands was unsupported by evidence and inconsistent with the fact that the claimant had already received and paid back allowances for such establishments. Long-established usage and possession further contradicted the claim.
Issues: Whether the disputed lands and the minerals underlying them were part of the permanently settled estate of the claimant, and whether the lands could be classified as thanadari lands.
Ratio Decidendi: The burden of proof lies with the plaintiff to establish that disputed lands are part of a permanently settled estate. If the evidence, including the kabuliyat and revenue lists, does not include the lands, and subsequent usage contradicts the claim of ownership, the claim must fail. The classification of lands as thanadari lands requires evidence of specific allowances and a lack of resumption; where such evidence is absent and usage suggests otherwise, the lands cannot be treated as thanadari.
Result: Appeals allowed; decree of the High Court reversed and that of the District Judge restored.
Consolidated Appeals (No. 51 of 1923) from a decree of the High Court (June 24, 1921) reversing a decree of the District Judge of Burdwan (May 28, 1918).
The suit was brought by the first respondent, the Raja of Pachete, to establish his right to certain digwar ghatwali lands, together with the minerals lying thereunder, and for an injunction to restrain the defendants from working coal mines therein. The defendants were the Secretary of State for India in Council, appellant in one of the consolidated appeals, the New Birbhum Coal Co., Ld., and the Bengal Iron and Steel Co., Ld., appellants in the second consolidated appeal; the digwar ghatwals were also joined as defendants.
The Secretary of State pleaded that the suit was barred by limitation, as the defendants had held adverse possession of the minerals for more than twelve years, that neither at the permanent settlement of 1793, nor at any other time, were the villages permanently settled, that they never formed part of the plaintiffs permanently settled estate, and that the villages had been digwari chakran from before the permanent settlement.
The two companies raised by their written statements substantially the same pleas as the Secretary of State.
The digwar ghatwals filed a similar written statement, and in addition pleaded that the digwars were the owners in perpetuity by grant of the villages, including both the surface and the minerals.
The District Judge who tried the case dismissed the suit. He held that the lands had not been taken into account in fixing the revenue at the permanent settlement, and that they did not form part of the zamindari. He further held that the right to the minerals remained in the Crown.
On appeal to the High Court the decree was reversed. The learned judges (Chatterjea and Newbould JJ.) found, on the evidence that the digwari tenures had been created by the Pachete raj, that the Rajas appointed the digwars, who performed police services and held the lands in lieu of wages. The learned judges held that the lands were either thanadari lands within the meaning of s. 8, cl. 4, of Ben. Reg. I. of 1793, or "other chakran lands" within s. 41 of Ben. Reg. VIII. of 1793. They however rejected the second alternative, and said " The lands being thanadari within the meaning of s. 8, cl. 4, of Reg. I. of 1793, the plaintiff will be entitled to possession of the same on their resumption by Government, subject to the payment of separate revenue; but so long as the mauzas are not resumed, the plaintiff is not entitled to any rent or compensation for use and occupation." With regard to the minerals the learned judges said that varying opinions had been expressed in many official papers cited, and numerous cases had been referred to. The conclusion arrived at was that at the permanent settlement the right of the Crown in the minerals was parted with, and that " the digwars holding as chakran cannot have a right to the minerals, and we are of opinion that the right to the minerals is in the zamindar." On the question of limitation it was held that possession for the statutory period adverse to the plaintiffs claim had not been established.
The argument on behalf of the appellants as to the ownership of the villages was heard by the Judicial Committee in December, 1925, the respondents not appearing, owing to the conduct of their then solicitor. The respondents shortly after obtained leave to appear, and the argument was ordered to be heard de novo.
1926. Jan. 18, 19, 21, 22, 23, 25, 26, 28, 29. Dunne K.C. and Kenworthy Brawn for the Secretary of State, appellant Sir George Lowndes K.G., E. B. Raikes and G. D. McNair for the appellant companies. It is a question of fact whether the digwar ghatwali lands are part of the permanent settled estate, and the onus was upon the plaintiff Forbes v. Meer Mahomed Tuquee (( 1870) 13 Moo. I. A. 438.); Jagadindra Nath Roy v. Secretary of State for India . (( 1902) L. R. 30 I. A. 44, 52.) The plaintiff failed to
