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Raja Rajinder Chand Versus Sukhi

1956 (10) TMI 37 - SUPREME COURT OF INDIA

Civil Appeals Nos. 196 to 201 of 1953 - Dated:- 23-10-1956 - B. Jagannadhadas, S. K. Das And T. L. Venkatarama Aiyyar, JJ. JUDGMENT S. K. Das, J. These are six appeals by the plaintiff Raja Rajinder Chand, the superior landlord (ala-malik) of Nadaun Jagir in the district of Kangra. He brought six suits in the Court of the Subordinate Judge of Kangra for a declaration that he was the owner of all pine (chil-pinus longifolia) trees standing on the lands of the defendants within the said Jagir and .....

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r property, and that the plaintiff had no right 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 .....

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en 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 ownership and held that the present appellant had established his right to the trees in question. He also reversed the finding of the learned Subordinate Judge on the question of limitation, but accepted his finding as to damages. Accordingly, he allowed the .....

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nd, agreeing with the learned Subordinate Judge, held that the present appellant had not been able to establish his right to the trees. On the question of limitation, however, they agreed with the learned District Judge. In view of finding that the appellant had failed to establish his right to the trees, the appeals were allowed and the suits brought by the appellant were dismissed. The High Court gave a certificate that the cases fulfilled the requirements of sections 109(c) and 110 of the Cod .....

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-maliks in Nadaun Jagir. The respondents have not contested before us the correctness of the finding of two of the Courts below that the suits were not barred by time; therefore, the question of limitation is no longer a live question and need not be further referred to in this judgment. Though the main question which arises in these six appeals is a short one, a satisfactory answer thereto requires an examination of the history of the creation of Nadaun Jagir, of the land revenue and revisional .....

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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, .....

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ownership in the pine trees belonged to the British Government and the rights were assigned to Raja Jodhbir Chand, the first grantee of Nadaun Jagir; and thirdly, the right of the appellant in the trees had been "vouchsafed" by the entries made in the Wajib-ul-arz and recognised in several judicial decisions. The Courts below considered the claim of the appellant on the aforesaid three grounds, and we propose to consider these grounds in the order in which we have stated them. It is no .....

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ife and Raja Sansar Chand had a son by her, named Raja Anirudh Chand. The other women was of the Gaddi tribe and by her Raja Sansar Chand had a son, named Raja Jodhbir Chand. The great antiquity of the Katoch royal line as undoubted, and the history of the Kangra State from the earliest times right up to its conquest by the Sikhs under Maharaja Ranjit Singh has been traced in the Kangra District gazetteer (1924-25) at pp. 52 to 76. We are not concerned with that history prior to the time of Raja .....

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sit to that camp, he was met by a very unacceptable demand. Raja Sansar Chand had left two daughters, and Raja Dhian Singh of Jamun, one of the principal officers of Maharaja Ranjit Singh, asked one of the daughters to be given in marriage to his son, Hira 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 .....

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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 agreed upon. The State was then annexed to th .....

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of British rule in Kangra. The first Sikh war ended in March, 1846, in the occupation of Lahore and the cession to the British Government of the Jullunder Doaba and the hills between the Sutlej and the Ravi. In 1848, the second Sikh war began and Raja Parmudh Chand, one of the sons of Raja Anirudh Chand, raised the standard of rebellion in Kangra. The rebellion however failed. Meanwhile, Jodhbir Chand remained conspicuous for his fidelity to the British Government; both in the Sikh war and in t .....

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aja Jodhbir Chand, we now proceed to consider the first two grounds of the claim of the appellant. The learned Judges of the High Court held, in agreement with the learned Subordinate Judge, that the present appellant could not claim the sovereign rights of Raja Sansar Chand who was an independent ruler of Kangra. For this finding they gave two reasons; firstly, Raja Jodhbir Chand was an illegitimate son of Raja Sansar Chand and could not succeed to the rights of the Raja; secondly, whatever rig .....

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rees (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 .....

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#39;s claim, the learned District Judge, who found in favour of appellant, relied on certain observations quoted at p. 365, and again at p. 378, of the Kangra District Gazetteer (1924-25), observations on which learned counsel for the appellant has also relied. The observations are taken from Mr. Lyall's Settlement Report. Mr. Lyall said : "Under the Rajas (meaning the old Katoch rulers) the theory of property in land was that each Raja was the landlord of the whole of his raj or princi .....

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ss he remitted it as an act of favour to the holder, or assigned it in Jagir to a third party in lieu of pay, or as a subsistence allowance.................. Every several interest in land, whether the right to cultivate certain fields, to graze exclusively certain plots of waste, work a water-mill, set a net to catch game or hawks on a mountain, or put a fish-weir in a stream, was held direct of the Raja as a separate holding or tenancy. The incumbent or tenant at the most called his interest a .....

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mount right of property which was vested in the Raja and the right of cultivation derived by grant from the Raja, which was vested in the cultivators. The first right extended to the whole of the principality; the second primarily extended only to the plot specified in the grant, but carried with it further rights of common in adjacent waste. It is then observed that this system of land tenure came down practically unchanged until the introduction of British rule, and though the period of Sikh d .....

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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 d .....

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made by the sovereign ruler. It is pertinent to quote here the following observations of Lord Dunedin in Vajesingji Joravarsingji v. Secretary of State for India [1924] L. R. 51 I. A. 357 : "When a territory is acquired by a sovereign State for the first time that is an act of State. It matters not how the acquisition has been brought about. It may be conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler. In all c .....

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did not restore them to their old position". The question as to whether the sovereign ruler having a right in all royal trees made a grant of that right to Raja Jodhbir Chand or surrendered that right in favour of Raja Jodhbir Chand or any of his successors-in-interest is a different question which will depend on the terms of the grant or on other evidence showing that the right had been surrendered in favour of the appellant or his predecessors-in-interest. That is a question which we sha .....

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h of the villages named hereinafter, situate 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 .....

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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 and also as contemplated in the previous order of the Nawab Governor-General, dated August 7, 1846, subject to the following conditions :- 1. In no way shall criminal jurisdiction in respect of the said Ilaqa vest in the Raja Sahib. The entire administration and po .....

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;s rules of practice. In case of contravention of the said rules of practice cash shall be fixed by the Government for the said Raja Sahib or his descendants. 3. After the death of the said Raja Sahib this Jagir shall be divided among his real sons according to the practice followed by Hindus. It shall not devolve on his descendants from a slave girl. 4. It shall be essential for the Raja Sahib to construct at his own expense public roads, eleven cubits in width, in his Ilaqa. 5. It is proper fo .....

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to be ₹ 32,000 approximately. According to the statements of officials of the Raja Sahib the said Jama includes amounts on account of excise, Bhum Chari (cattle grazing) etc. That was found to be wrong. Now the present Sanad with the name of each Tappa and the number of villages and Jama thereof being entered in it is issued by this Court subject to the abovementioned conditions after an enquiry having been made and a report having been submitted to the Nawab Governor-General". Appen .....

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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 .....

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land, Vol. VII, s. 12, Simonds Ed.). It is worthy of note that so far as the lands in possession of tenants or subjects were concerned, the Sanad did not grant any right other than the right to receive revenue; condition No. 2 of the Sanad made it quite clear that the grantee would receive only revenue from the subjects living in the villages of his Jagir according to the British Government's rules of practice, and that the grantee was not at liberty to receive on any pretext "mahsul&qu .....

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tle grazing etc,; that was found to be wrong and the correct Jama was found to be ₹ 26,270-10-3. The Sanad concluded with these words : "Now the present Sanad with the name of each Tappa and the number of villages and Jama thereof being entered in it is issued subject to the abovementioned conditions, etc." In the recital portion of the Sanad also it was stated that the Jagir of certain Tappas, together with the number of villages comprised within the Tappas and the Jama mentione .....

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he Raja pays to Government as nazarana; ₹ 33,000 is the value of the grant, but the Raja puts his collection at ₹ 30,000 only, exclusive of Khalsa tikas". The aforesaid remarks, made not very long after 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 .....

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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 pine (chil) trees were held to be the property of Government; this led to a dispute be .....

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d then came to the conclusion that the authority of the Wajib-ul-arz entries was open to doubt and the Raja had failed to made out his claim; the learned Judge did not clearly find however if the entries related to waste and reclaimed lands only. Learned counsel for the appellant has very strongly submitted before us that the view of the learned District Judge was correct and should have been accepted by the High Court; learned counsel for the respondents has argued, on the contrary, that the tr .....

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s related to waste and recently reclaimed lands, whereas the High Court doubted the very authority of the entries. Moreover, the question whether from the Wajib-ul-arz entries an inference of surrender or relinquishment of a sovereign right by Government can be property drawn is not a pure question of fact, depending as it does on the true scope and legal effect of those entries. We cannot, be resorting to a short cost as it were, relieve ourselves of the task of examining the Wajib-ul-arz entri .....

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ment 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 .....

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900), and the Settlement of Messrs Middleton and Shuttleworth (1910-15). Before dealing with the actual entries made, it is necessary to refer to a few more matters arising out of the settlement operations of Messrs Barnes and Lyall. The expressions 'ala-malik' and 'adna-malik' have been used often in the course of this litigation. What do those expressions mean ? In Mr. Douie's Punjab Settlement Manual (1930 edition) it is stated in para 143 : "Where the proprietary rig .....

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the Raja and of the people with respect to the land, which was actually in the occupancy of the people, and next with respect to the land to in their actual occupancy, but over which they were accustomed to graze and to do certain other acts. Mr. O'Brien decided that the Raja was superior proprietor or Talukdar of all lands in his Jagir, and the occupants were constituted inferior proprietors of their own holdings and of the waste land comprised within their holdings as will be shown hereaf .....

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ay know on what grounds the present record was based". Mr. Anderson then quoted the following extract from Mr. O'Brien's assessment report to explain the position : "In places where the possession of the original occupants of land was undisturbed they were classed as inferior proprietors; but where they had acquired their first possession on land already cultivated at a recent date, or where the cultivators had admitted the Raja's title to proprietorship during the preparat .....

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prietor (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 lease .....

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erty of Raja Sahib". In Ex. P-4 the entry was - "Excepting the pine trees all the trees standing in the Khata of any person in the Tikas of the Jagir save those proprietary lands the trees whereof have been held belonging to the Government during the recent Settlement and which have been mentioned above are the property of the owner of the Khata. In the Tikas of Jagir, all the pine trees of such Khatas excepting those standing on such proprietary lands, and which have been held to be t .....

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do not know if the lands in suit were initially private waste or recently reclaimed lands. The Jamabandis show that they are proprietary and cultivated lands of adna-maliks. Therefore, the question before us is the right to chil trees on proprietary and cultivated lands in possession of adna-maliks. It is not disputed that under s. 31 of the Punjab Land-Revenue Act, 1887, Wajib-ul-arz is a part of the record-of-rights, and entries made therein in accordance with law and the provisions of Ch. IV .....

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he statement shall not 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, rig .....

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rs, 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 claim on custom, though referring to his right he said in his plaint - "this has been the practice throughout". What he really meant by "practice" was the land system prevailing under the old independent Katoch rulers. We have already held that the appellant did not get the sovereign r .....

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rt as authority for it. That paragraph, however, stated in clear terms - "No orders have been passed by me in regard to trees on fields, as the present enquiry extended only to the waste land". It is obvious that the entry in the Wajib-ul-arz of 1892-93 went much beyond what was stated in para 78 of Mr. Anderson's report, and so far as the right to pine trees on proprietary and cultivated lands was concerned, the statement made a confusion between Government jungles, recently recla .....

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ur of Raja Jodhbir Chand was by means of a Sanad, and one would expect any additional grant or surrender to be embodied in a similar document. At any rate, if the intention of Government was to surrender a sovereign right in favour of the Raja, one would expect such intention to be expressed in unambiguous language. In Khalsa villages, Government did surrender their right to trees on Shamilat lands of adna-maliks on the authority of letter No. 347 of January 6, 1867. Taking the most favourable v .....

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ts 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 t .....

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ct of the Wajib-ul-arz (para 12) of 1892-93, dealing with the rights of ala-maliks and adna-maliks. The entry shows that the Raja Sahib was to get 15 per cent on the net revenue in respect of the entire land owned by the adna-maliks as talukdari dues which had been fixed : the talukdari dues were fixed to compensate the Raja Sahib for all sorts of dues, such as banwaziri, domiana, etc. It is improbable that after the fixation of such talukdari dues, a grant of a further right in respect of chil .....

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-maliks admitted the Wajib-ul-arz of 1914-15 to be correct. We cannot accept that argument; firstly, we do not think that the endorsement at the bottom of Ex. D-6 is an admission by adna-maliks of the correctness of the entries made in other paragraphs of Wajib-ul-arz, as for example, para 10 (Ex. P-4) which related to the rights of Government in respect of the nazul lands, etc. Secondly, even if the endorsement amounts to such an admission as in contended for by learned counsel for the appellan .....

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b-ul-arz in the first regular settlement was sometimes a formidable document, but its real value as evidence of village custom was not always proportionate to its length. He quoted with approval the observations of Sir Arthur 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 .....

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s 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 decisions in detail. The legal position is clear enough. As was observed by th .....

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her the statutory presumption attaching to an entry in the Wajib-ul-arz has been properly displaced or not must depend on the facts of each case. In the cases under our consideration, we hold, for the reasons already given by us, that the entries in the Wajib-ul-arz with regard to the right of the Raja in respect of chil trees standing on cultivated and proprietary lands of the adna-maliks, do not and cannot show any existing custom of the villages, the right being a sovereign right; nor do they .....

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ertain orders contained in letter No. 1353 dated March 11, 1897, from the Senior Secretary of the Financial Commissioner. This Wajib-ul-arz also showed that certain amendments were made on May 26, 1914, by an order of Mr. Shuttleworth, the then Settlement Officer. There is a further note that the amendment was cancelled on January 23, 1917. In the High Court judgment there is a reference to the notes mentioned above and the learned Judge who gave the leading judgment observed that the aforesaid .....

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ough 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, .....

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s related to lands which were private waste or nautor (reclaimed) lands. Apart, however, from that difficulty, we are of the view that the judgments do not advance the case of the appellant any further. They proceeded primarily on the entries in the Wajib-ul-arz, the effect of which entries we have already considered at great length. Admittedly, no plea or res judicata arose on these judgments, and they were merely evidence of an assertion and determination of a similar claim made by the Raja in .....

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