Judgement

Appeal (No. 116 of 1922) from a judgment and three decrees of the High Court (January 17, 1917) affirming three decrees of the District Judge of Ahmedabad.

The three appellants were by caste or tribe Lamanis or Brinjaris, and each bore the designation " Naik." They brought three separate suits against the respondent, claiming that they had proprietary rights in the taluqas which they held in the Panch Mahals. The respondent contended, in each suit, that the plaintiff and his ancestors were ordinary lessees holding their lands at the pleasure of the Government. The facts appear from the judgment of the Judicial Committee.

The District Judge held that the plaintiffs had not succeeded in showing that their ancestors were proprietors of any of the holdings in question or had had long possession in that character as alleged; in view especially of temporary leases under which they had held the lands he placed the burden of proof upon them. Accordingly he dismissed the suits.

Appeals to the High Court were dismissed.

The learned judges (Scott C.J. and Beaman J.), while agreeing with the principle applied by the trial judge, disposed of the appeals upon the ground that such documents of title as the appellants or their ancestors had received since the cession of the district affirmed their position as Government lessees, and showed no recognition by the Government of proprietary right in the appellants.

1924. May 19, 20, 22, 23, 26. Dunne K.C. and Parikh for the appellants.

Sir George Lowndes K.C. and Kenworthy Brown for the respondent.

The arguments were substantially on the facts and documents ; the contentions in law appear from the judgment.

June 26. The judgment of their Lordships was delivered by

LORD DUNEDIN. In these consolidated appeals the three Naiks of Tanda, Chandwana and Katwada respectively, sue the Indian Government for a declaration that they are proprietors of the whole lands in the taluqas belonging to them and that they are not bound to accept a lease of the same in the terms offered to them by the Government in 1907. They admit that they are bound to pay a jamabandi or revenue contribution, but contend that there the right of the Government of India ends. Their demand was refused by the District Judge, and his judgment was confirmed on appeal by the High Court.

The lands in question are situated in the Panch Mahals and, previously to 1860, were in the domain of Scindia of Gwalior. On December 12 of that year Scindia ceded this territory to the British Government by a treaty, of which art. 3 is as follows " The Maharaja transfers to the British Government in full sovereignty the whole of His Highness possession in the Panch Mahals and to the south of the river Narbada also Pargana Kumghar on the Betwa river on the following conditions 1st. That for the lands transferred by His Highness, the British Government shall give in exchange lands of equal value calculated on both sides on the present gross revenue.....3rd. That each Government shall respect the conditions of existing leases until their expiry, and that in order that this may be made clear to all concerned, each Government shall give to its new subjects leases for the same terms of years and on the same conditions as those which they at present enjoy. 4th. That each Government shall give to its new subjects sanads in perpetuity for the rent-free lands—the jaghirs the perquisites and the hereditary claims (i.e., haks and watans) which they enjoy at present under the other Government."

Their Lordships will have occasion presently to inquire into the circumstances of an earlier date, but, for the moment, they pause at this date, because what happened in 1860 determines the law of the case. This law was most clearly laid down in the judgment of the board delivered by Lord Atkinson in the case of Secretary of State for India v. Bai Rajbai. (( 1915) L. R. 42 I. A. 229.) Their Lordships do not propose to repeat what was there said. It was no new law that