TMI Blog1956 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... to the trees nor had he ever exercised any right of possession over them. Three questions arose for decision on the pleadings of the parties. The first question was - whether all pine trees standing on the lands in suit were the property of the plaintiff, i.e., the present appellant. The second question was one of limitation, and the third question related to the quantum of damages claimed by the appellant. The learned Subordinate Judge, who dealt with the suits in the first instance, held that the present appellant had failed to prove his ownership of the trees. He further held that the suits were barred by time. On the question of damages, he held that if the appellant's claim to ownership of the trees were established, some of the defendants in four of the suits would be liable for small amounts of damages. In view, however, of his findings on the questions of ownership and limitation, he dismissed the suits. Raja Rajinder Chand then preferred appeals from the judgment and decrees of the learned Subordinate Judge, and the appeals were heard by the learned District Judge of Hoshiarpur. The latter reversed the finding of the learned Subordinate Judge on the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f those settlements. Before we advert to that history, it is necessary to indicate here the nature of the claim made by the present appellant. The plaints of the six suits were very brief and did not give sufficient particulars of the claim made by the appellant. We may take the plaint in Suit No. 544 of 1940 by way of an example; in para 1 it was stated that the land in question in that suit was in Tappa Badhog and the appellant was the superior landlord thereof; then came para 2 which said - The land is situate in Nadaun Jagir. All the pine trees standing on the aforesaid land belong to the plaintiff. He alone enjoys benefit of those trees. This has always been the practice throughout . In a later statement of replication dated October 26, 1940, the plaintiff-appellant gave some more particulars of his claim. The learned Subordinate Judge, who tried the suits in the first instance, observed that the present appellant based his claim to ownership of the trees on three main grounds : first, on the ground that the land itself on which the trees stood belonged formerly to the ancestors of the present appellant (namely, the independent rulers of Kangra) and they gave the land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra Singh. Anirudh Chand was afraid to refuse, though in reality he regarded the alliance as an insult to his family honour; because by immemorial custom a Katoch Raja's daughter may not marry any one of lower rank than her father, i.e. a Raja or an heir-apparent. Anirudh Chand was a Raja in his own right and the descendant of a long line of kings, while Dhian Singh was a Raja only by favour of his master. Anirudh Chand prevaricated for some time; but he was determined to sacrifice everything rather than compromise the honour of his ancient line. He secretly sent away his family and property across the Sutlej and on hearing that Maharaja Ranjit Singh had started from Lahore for Nadaun, he filed into British territory. Maharaja Ranjit Singh came to Nadaun and Jodhbir Chand gave his two sisters to the Maharaja. Jodhbir Chand was then created a Raja, with Nadaun and the surrounding country as his Jagir. Mian Fateh Chand, younger brother of Raja Sansar Chand, offered his grand-daughter to Raja Hira Singh. He was also rewarded with the gift of a Jagir known as the Rajgiri Jagir and received the rest of the State on lease on favourable terms. His son, however, failed to pay the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvincing reasons for discountenancing the claim of the appellant that the sovereign rights of the independent rulers of Kangra in respect of all royal trees (including pine trees) within Nadaun Jagir had come down to him. For the purposes of these cases we may accept the position, in support of which there is some historical material, that Raja Sansar Chand had a right to all royal trees including pine trees within his territory; but it is clear to us that neither Raja Jodhbir Chand nor the present appellant succeeded to the rights of the independent rulers of Kangra. Raja Jodhbir Chand was a grantee under a grant first made by Maharaja Ranjit Singh and then by the British Government. The precise terms of the grant made by Maharaja Ranjit Singh are not known. The terms of the grant made by the Governor-General on October 11, 1848, are to be found in the Sanad of that date. Therefore, the position of the appellant cannot be any higher in law than that of Raja Jodhbir Chand and the claim of the appellant that he had succeeded to the rights of the independent rulers of Kangra is clearly unfounded. Dealing with this part of the appellant's claim, the learned District Judge, who fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduction of British rule, and though the period of Sikh dominion intervened, the Sikhs did not appear to have altered the system. The learned District Judge relied on the aforesaid observations for his finding that the appellant had the ownership of all royal trees in accordance with the system of land tenure which prevailed during the time of the old Rajas. In our view, the learned District Judge was in error with regard to this part of the claim of the appellant. Mr. Lyall began his settlement work in 1865 and his report was dated July 30, 1872. He continued and revised the earlier settlement work of Mr. Barnes. It is worthy of note that neither Mr. Barnes nor Mr. Lyall undertook any actual settlement operations in Nadaun, though Mr. Lyall gathered very valuable historical date regarding the conditions of land tenure which prevailed in the district of Kangra under the old Katoch Rajas. It is one thing to say that the system of land tenure prevailing under the old Katoch rulers continued in spite of the Sikh interregnum, but it is quite a different thing to say that Raja Jodhbir Chand, the grantee of a Jagir, succeeded to the rights of the independent Katoch rulers. The rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in Taalluqa Nadaun, possessed by him. Whereas the mountainous country together with the Doaba tract had come under the occupation of the British Company in pursuance of the treaty which took place between the British Government and the Sirkar or Lahore on March 9, 1846 : The Jagir of Choru, Bara, etc., situate in the Ilaqa of Nadaun the name of each Tappa whereof together with the number of its villages and its Jama is given herein below and the total Jama whereof was ₹ 26,270/10/3 per annum approximately, i. e., as much of the Ilaqa of Nadaun as was in the possession of the said Raja at the time of the commencement of tumult of battle whether less or more than the present one, has been granted in perpetuity, generation after generation, to Raja Jodhbir Chand and his male legitimate descendants who are not from the womb of a slave girl under the orders of the Most Generous Gracious, Exalted and Excellent Nawab Sir Henry Hardings G. C. B. Governor-General, ruler of territory of India, communicated in writing in English bearing the signature of Mr. Edward, Deputy Chief Secretary to His Excellency, in reply to the Commissioner's report No. 147, dated July 24, 1847 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the third column the amount of Jama for each Tappa. The question now is whether the aforesaid Sanad was a grant primarily of land revenue; or it made a grant of other royal rights including the right to all pine trees which is the particular right under consideration in the six suits brought by the appellant. It is, we think, well settled that the ordinary rule applicable to grants made by a subject does not apply to grants made by the sovereign authority; and grants made by the Sovereign are to be construed most favourably for the Sovereign. This general rule, however, is capable of important relaxations in favour of the subject. It is necessary to refer here to such only of those relaxations as have a bearing on the construction of the document before us; thus, if the intention is obvious, a fair and liberal interpretation must be given to the grant of enable it to take effect; and the operative part, if plainly expressed, may take effect notwithstanding qualifications in the recitals. In cases where the grant is for valuable consideration, it is construed in favour of the grantee, for the honour of the Sovereign; and where two constructions are possible, one vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grant, also support the view that the grant was primarily an assignment of land revenue and whatever other rights might have been included, the right to all pine trees on cultivated lands of the subjects was not within the grant. We agree therefore with the High Court that on a true and proper construction of the Sanad, it is impossible to spell out of its terms a grant in favour of Raja Jodhbir Chand of right to all pine trees on cultivated and proprietary lands. We proceed now to examine the third ground of the claim of the appellant, viz., that part of his claim which is based on the entries in the Wajib-ul-arz of 1892-93 (Ex. P-5), 1899-1900 (Ex. P-6) and 1910-1915 (Ex. P-4) and other connected documents. This part of the claim of the appellant has been the most controversial and difficult to determine. The learned Subordinate Judge expressed the view that the aforesaid entries did not help the appellant, because they related to pine trees standing either on uncultivated waste lands or nautor (recently reclaimed) lands and not to such trees on proprietary and cultivated lands. The learned District Judge held on appeal that in the Wajib-ul-arz of 1892-93 (Ex. P-5) all pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernor of the Punjab. He began his work in 1865 and wrote his report in 1872. He also did not undertake any settlement of Nadaun. Alex. Anderson was the next person who dealt with the settlement of Kangra. By Notification No. 25 dated January 26, 1888 a general re-assessment of the land revenue of Kangra district was ordered and by Notification No. 26 of the same date a preparation of the record-of-rights in the Jagirs of Guler, Siba and Nadaun was undertaken. Mr. O'Brien undertook the settlement, but died on November 28, 1893 and it was left to Mr. Anderson to write the report. It may be stated here that Mr. Anderson wrote two reports : one was the Forest Settlement Report of 1887 and the other was the Revised Settlement Report of Kangra of 1897. On April 27, 1910 two other notifications were published, directing a revision of the existing record-of-rights in Dera and Hamirpur Tehsils (Nadaun being within Hamirpur Tehsil). As a result, Messrs Middleton and Shuttleworth undertook a revisional settlement, which was the Settlement of 1910-15. We have in these cases to deal with the entries made in O'Brien's Settlement (1892-93), Anderson's Settlement (1899-1900), and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivators had admitted the Raja's title to proprietorship during the preparation and attestation of the Jamabandis, they were recorded as tenants with or without of occupancy as the circumstances of the case suggested. ............ In deciding the question old possession respected. Where the ryots had been proved to be in undisturbed possession of the soil they have been recorded as inferior proprietors . The same principles were followed in Nadaun : long possession with or without a patta or lease from the Raja was the test for recording the ryot as an inferior proprietor (adna-malik). Bearing in mind the aforesaid distinction between ala-malik and adna-malik, we proceed now to examine the actual entries made in the Wajib-ul-arz of 1892-93 (Ex. P-5), of 1899-1900 (Ex. P-6) and of 1910-15 (Ex. P-4). In Ex. P-5 the relevant entry in para 11 was : The owners shall, however, have no right to pine trees. They can neither cut them nor get the same without permission, for it has been laid down in the Forest Settlement Reports that the Raja Sahib gave leases to reclaim such lands whereon the Government Jungles, i. e. the Government pine trees exist. For this reason, the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contain entries relating to matters regulated by law, nor shall customs contrary to justice, equity or good conscience, or which have been declared to be void by any competent authority, be entered in it. Subject to these restrictions, the statement should contain information on so many of the following matters as are pertinent to the estate : ................................. (h) The rights of cultivators of all classes not expressly provided for by law (for instance, rights to trees or manure, and the right to plant trees) and their customary liabilities other than rent. ................................. (j) The rights of Government to any nazul property, forests, unclaimed, unoccupied, deserted, or waste lands, quarries, ruins or objects of antiquarian interest, spontaneous products, and other accessory interest in land included within the boundaries of the estate. ................................. (i) Any other important usage affecting the rights of landowners, cultivators or other persons interested in the estate, not being a usage relating to succession and transfer of landed property . In the cases before us, the appellant did not base his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities as to the rights of the Raja the intention of Government; but the views of the revenue authorities as to effect or construction of a grant or the intention of Government in respect of a grant, do not conclude the matter or bind the civil Courts. (See Rajah Venkata Narasimha Appa Row Bahadur v. Rajah Narayya Appa Row Bahadur [1879] L. R. 7 I. A. 38. The same comments apply to the Wajib-ul-arz of 1899-1900 (Ex. P-6) and of 1910-15 (Ex. P-4). They no doubt say that the pine trees on the lands comprised within the Khatas of adna-maliks are the property of the Raja Sahib. None of them indicate, however, on what basis the right to chil trees on proprietary and cultivated lands of the adna-maliks is to be held the property of the Raja Sahib. If the revenue authorities made the entries on the basis of the land system of the old Katoch rulers or on the basis of the Sanad of 1848, they were clearly wrong. If, however, there was a surrender by Government of the right in favour of the Raja, one would expect it to be mentioned unambiguously in the entries; one would further expect the same to be mentioned in the Jamabandis (Exs. D-7 and D-8) of the adna-maliks. The Jamabandis do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rthur Brandreth to the following effect : Some few points have been ascertained in each case, but in general the villagers did not know their customs very well, and when they put their seals to the paper, no doubt they thought it very grand, though they did know what it was about, as they could little understand the language. The rules are of two sorts; one, the rules laid down by Government, or points on which the whole pargana have the same custom, and, secondly, the special customs of the particular manor; these together take up a great number of pages, and the villagers are confused by the long code of rules, and merely say 'yes, yes' and put their seals to the paper, hoping it is nothing very dreadful. A large number of decisions in which entries of the Wajib-ul-arz or the Riwaji-i-am and the value to the given to them were considered, have been cited before us. In some of them, entries in the Wajib-ul-arz were accepted as correct and in others they were not so accepted, notwithstanding the statutory presumption attaching to the entries under s. 44 of the Punjab Land Revenue Act, 1887. We do not think that any useful purpose will be served by examining those decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul-arz. The Government of the Punjab, however, claimed privilege in respect of those documents, which claim was upheld in the High Court. We have re-examined that claim, and though the State was not a party to this litigation, we heard the learned Advocate-General for the State. We found the claim to be valid under the law as it stands at present. We have assumed that the entries in the Wajib-ul-arz of 1899-1900 and of 1910-15 related to cultivated and proprietary lands of adna-maliks, though they were entered in a paragraph which dealt with the rights of Government in respect of ownership of the nazul lands, jungles, unclaimed property, etc. Even on that assumption, we have come to the conclusion that the entries in the Wajib-ul-arz do not establish the claim of the appellant that there was a surrender or relinquishment of a sovereign right in favour of his predecessor. It remains now to notice some other evidence on the record. Learned counsel for the appellant has referred us to several judgments, Exs. P-9, P-7, P-8 and P-4 (wrongly marked as Ex. P-6). Referring to these judgments, the learned trial Judges said that it was not clear whether those judgments related to lands ..... X X X X Extracts X X X X X X X X Extracts X X X X
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