TMI Blog1956 (2) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... r referred to as the Abolition Act ) was, in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legislature and for an injunction restraining the State of Orissa from taking any action under the said Act. The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under section 3(1) of the Abolition Act declaring that the Rajgee of Kanika had passed to and become vested in the State free from all encumbrances. The High Court dismissed the suit but gave a certificate of fitness for appeal to this court. Hence the present appeal by the plaintiff. The plaintiff's contention before us is that no notification under section 3(1) of the Abolition Act can issue because (1) his land is not an estate as defined in section 2(g) of the Act, and (2) the plaintiff is not an intermediary' within the meaning of section 2(h) thereof. In answer to this, the Attorney General, appearing on behalf of the State, makes five Submissions, viz., (a) that on the admitted facts the plaintiff's land is an estate within the meaning of the Abolition Act; (b) that the plaintiff is estopped by the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared and maintained under the law for the time being in force. There is no dispute that the law for the time being ,in force means the Bengal Land Registration Act (Bengal Act VII of 1876). The plaintiff contends that the register in which his land is included under one entry was not prepared or maintained under the Bengal Land Registration Act. The argument is that it is not only necessary to show that the land is included under one entry in a register but that it is also necessary to show that the register where the entry appears was prepared and maintained under the law. Under the Bengal Land Registration Act, 1876, land can be included in the register prepared and maintained under that Act only if such land is an estate as defined in that Act. The relevant part of that definition is:- 3(2) 'estate' includes:- (a)any land subject to the payment of land revenue, either immediately or prospectively, for the dis charge of which a separate engagement has been entered into with Government; (b)........................................................ (c)............................................................ It is urged, therefore, that the preparat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioners having likewise granted a sanad to Futtah Mohmed, jaghirdar of Malood, entitling him and his heirs for ever, in consideration of certain services performed towards the British Government, to hold his lands exempt from assessment, such sanad is hereby confirmed. XXXV. First.-The late Board of Commissioners having concluded a settlement of the land revenue with certain zamindars, whose estates are situated chiefly in the hills and jungles, for the payment of a fixed annual quit-rent in perpetuity, those engagements are hereby confirmed; and no alteration shall, at any time, be made in the amount of the revenue payable under the engagements in question to Government. Second.-The following is a list of the mehals to which the provision in the preceding Clause is applicable: Killah Aull, : Killah Humishpore, Killah Cojang, : Killah Miritchpore, Killah Puttra, : Killah Bishenpore. Third.-The zamindaries of Cordah and Cunka being mehals of the description of those specified in the preceding Clause, a settlement shall be concluded, as soon as circumstances may admit, for the revenue of those mehals on the principle on which a settlement has been concluded with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be drawn in the circumstances is that as Killa Kanika was not subject to payment of land revenue., for the discharge of which a separate engagement had been entered into, it was not an estate as defined in Bengal Land Registration Act, 1876, and that that being the posi- tion, it could not have been validly entered in the register prepared and maintained under the Bengal Land Registration Act. The action of the Collector in entering Killa Kanika as a revenue-paying estate was wholly ultra vires and in the eye of the law such an entry is a nullity and does not exist. It follows, therefore, that Killa Kanika cannot be regarded as an estate within the meaning of the Abolition Act because the general register in which it is included cannot be said to have been validly prepared and maintained under the law for the time being in force. Section 4 of the Bengal Land Registration Act, 1876, directs the Collector of every district to prepare and keep up the four kinds of registers therein mentioned. Section 7 lays down that in Part I of the general register of revenue- paying lands should be entered the name of every estate which is borne on the revenue-roll of the district and certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies when the definition includes lands entered in the general registers prepared and maintained under the Bengal Land Registration Act, 1876. Here the reference to the register prepared or kept under the law for the time being in force was meant only to identify the particular register in which the particular land was included under one entry. Suppose that a )register prepared and maintained under the Bengal Land Registration Act, 1876, included lands which were estates within the meaning of the Land Registration Act and also lands which were not estates within the meaning of that Act. 'Suppose further that the Orissa Legislature by the Abolition Act intended to include all these lands, properly or improperly included in the register, what language would they then have used? Precisely the language they have used in section 2(g) of the Abolition Act, namely, that an estate means any land included in the general registers prepared and maintained under the law for the time being in force. In other words, the definition covers lands which are factually included in the particular register referred to. Whether they are estates within the meaning of the Bengal Land Registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action . To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott and others(2):- First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal . The same principle has been followed by the High Courts in India in a number of reported decisions. Reference need only be made to the case of Secretary of State, for India in Council v. Ateendranath Das Bhaishanker Nanabhai and others v. Morarji Keshavji and Co.(1) and Raja Kumara Venkata Perumal Raja Bahadur, Minor by guardian Mr. W. A. Varada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers therein mentioned and that after the fall of the Hindu kingdom in Orissa, and during the Afghan, Moghal and Mahratha occupation of Orissa, the Rulers of Killa Kanika, the ancestors of the plaintiff continued to be the absolute owners of the Killa including the said rivers. In paragraph 7 of the plaint reference was made to the Engagement and Kaoolnama of 1803, whereby the Raja was said to have been confirmed in his Rajgee or proprietorship of the entire Killa and it was submitted that the said grant was intended to and did, in fact, confirm his title, to the said rivers. In paragraph 9 of the plaint, it was acknowledged that subsequently the status of the rulers of Killa Kanika was gradually reduced to that of a Zamindar and that. they were divested of all administrative powers, but it was claimed that nevertheless, their proprietary rights in the Killa consisting of land and water including the disputed rivers remained intact and that the tribute which had been fixed by the engagement of 1803 remained so in perpetuity as Peshkush payable by the proprietors. In paragraph 33 it was stated that having regard to the fact that prior to the British conquest of Orissa, the plaintiffs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration whether the estate is a permanently settled estate or it is a temporarily settled estate. The question is whether the plaintiff is the holder of an estate or it is that he owns a State. But as I have just pointed out, a private individual cannot own a State in the sense a sovereign authority owns the same . After referring to the Regulations of 1805 and 1806, the learned Subordinate Judge proceeded to say: Thus it is apparent that with the advent of the British the question of status of the plaintiff was never left in any degree of uncertainty. All these various Regulations taken together will go to establish in an unmistakable term, that the plaintiff's status in his relation to his Killa, was recognised from the time of the advent of the British in Orissa as that of a Zamindar, i.e., a bolder of an estate. That being so, in relation to these rivers, or to their beds, the plaintiff's position shall be nothing more than or superior to that of a riparian owner . Again referring to the Engagement and Kaoolnama of 1803 the learned Subordinate Judge stated as follows:- Now taking these two documents together, it is difficult to read in them tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights in the waters on the channel of the rivers for the purpose of navigation and things of the kind, the Province of Orissa will not interfere with nor raise any objection to the plaintiff's enjoyment of such rights or ferry through the length and breadth of the aforesaid rivers. 4. That such Chars, islands or other accretions formed in the said rivers as have been shown in the Civil Court Commissioner's map prepared in this suit and now forming a part of the court's record shall be deemed as part and parcel of the permanently settled estate of Kanika and the defendant will not be entitled to any further assessment in respect thereof. 5. That all future riparian accretions or Chars formed adjoining the banks of the rivers in dispute shall also be always deemed to be part and parcel of the said permanently settled Zamindary of Kanika and shall be so possessed by him without any further payment on assessment of land revenue over and above the land revenue that has been permanently fixed. 6. That all other islands or Chars that may be formed subsequent hereto in the midst of the river being cut off from the banks thereof by waters that are tidal, unfordable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaint in the earlier suit summarised above and the passages culled from the judgment of the trial court clearly indicate that the parties went to trial on the definite and well understood issue that the plaintiff's claim to the river beds was founded on his anterior title as an independent Ruling Chief of Killa Kanika and that that title had been confirmed by the Engagement and Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied, by the East India Company. What the parties understood by the issues on which they went to trial is clearly illustrated by the passages quoted from the judgment. The fact that the claim in the earlier suit related only to a part of the land, namely the river beds, whereas the present case is that the entire land held by the plaintiff is not an estate makes no difference, for the real issue between the parties in the earlier suit was, as it is in the present suit, only concerning his status and the rights flowing therefrom.. To hold in this suit that the plaintiff is not the holder of an estate subject to payment of land revenue for the discharge of which a separate engagement has been entere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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