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PETITIONER: JIBON CHANDRA SARMA DOLOI

       Vs.

RESPONDENT: ANANDI RAM KALITA AND OTHERS.

DATE OF JUDGMENT: 23/02/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1961 AIR 1309            1961 SCR  (3) 947  CITATOR INFO :  RF         1972 SC 246  (13,14)

ACT: Brahmottar land-If alienable.-Burden of Proof-Assam Land and Revenue  Regulation,  1886  (Reg.  1  of  1886),  ss.  3(g), 8(1)(a), 9.

HEADNOTE: The plaintiff-appellant filed a suit alleging that the lands in suit were unauthorisedly transferred to the  predecessors in title 121 948 of the respondents.  His contention was that the lands  were granted  to the Bardeuries (officials) of a certain  ancient temple in    Assam in order to enable them to render service to the deities installed in the temple and as such the lands were inalienable to strangers other than the Bardeuries. Held,  that in view of the history of land tenure  in  Assam and by virtue of the relevant statutory provisions of  Assam Land and Revenue Regulation (Reg. 1 of 1886) the lands must. be  deemed  to  be heritable and  transferable  without  any restriction.  The transferor Bardeuries, who held the  lands described as brahmottar lands in revenue records, fell under s. 8(1)(a) and became " land holders " under s. 3(g) of  the Regulation and consequently s. 9 applied to them statutorily recognising  their  rights  in the lands  to  be  permanent, heritable and transferable. To prove the plaintiff appellant’s contention that the lands could be alienated only to a specified class of persons, the onus  was  on the appellant and not on  the  respondents  to prove the contrary.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 105 and 106 of 1957. Appeals from the judgment and decree dated April 8, 1954, of the Assam High Court in Appeal from Appellate Decree Nos. 41 and 54 of 1951. L. K. Jha and D. N. Mukherjee, for the appellant.

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Naunit Lal, for respondents Nos.  1 to 12. 1961.  February 23.  The Judgment of the Court was delivered by     GAJENDRAGADKAR, J.-These two appeals arise  from  a suit instituted  by  the appellant in the Court  of  the  Special Subordinate  Judge,  Assam  Valley Districts,  in  which  he claimed a declaration that the sale deeds of lands described in  detail in the various Schedules attached to  the  plaint were  void  and for possession of the lands covered  by  the said sale deeds.  His case was that Madhab Temple at Hajo is a very ancient temple and the Assam Rajahs had granted lands to  the  Bardeuries  (temple officials) to  enable  them  to render service to the deities installed in the said  temple. The lands thus granted to the temple officials were  endowed lands  and  the same had been burdened with service  to  the temple; in other words, the grantees were entitled to  enjoy the  lands  on condition that they  rendered  the  requisite service to the temple.  As a corollary of the 949 burden  imposed on the grantees by the said grant the  lands were   inalienable  to  strangers  though  they   could   be transferred  to  any  of  the  Bardeuries  of  the   temple. According  to  the appellant the said lands  had  originally been granted to Hem Kanta Sarma and Uma Kanta Sarma who were then  the  worshippers at the temple.  The  respondents  who were  impleaded  to the" suit represented the heirs  of  the original  grantees  and  assignees from  those  heirs.   The appellant  has  brought this suit on behalf  of  the  Madhab Temple at Hajo, and his case is that the alienations made by the  worshippers in favour of non-worshippers  were  invalid and so the temple was entitled to claim a declaration as set out  in  the plaint and to ask for possession of  the  lands unauthorisedly  transferred to the predecessors in title  of the  respondents.  The lands in suit have been described  in detail  and specified in three Schedules called Ka, Kha  and Ga. The  respondents  denied this claim.  They  urged  that  the original  grants  were not burdened with  service  and  were alienable  without  any  restriction  whatever.   They  also pleaded  that  they had purchased the lands  bona  fide  for valuable consideration and without notice of any such burden or obligation subsisting on the lands.  Besides, they  added a  plea of limitation in respect of the lands  specified  in Schedules Kha and Ga. The trial court upheld the appellant’s contention  and made a finding that the lands in  suit  were burdened  with  service with the result  that  the  impugned alienations  were void.  It also found that  the  purchasers had  not shown that they had made adequate enquiries and  so their  plea that they were purchasers without  notice  could not  be sustained.  On the question of limitation,  however, it accepted the plea raised by the respondents in respect of the  lands described in Schedules Kha and Ga.  In regard  to the lands described in Schedule Ka the trial Court  directed that  the appellant should obtain delivery of possession  of the  said lands through the transferor-defendants  or  their heir  if  the latter were willing to render service  to  the temple;  otherwise  the appellant was held entitled  to  get independent possession and the said transferors 950 would  be deemed to have relinquished their interest in  the said lands. This  decree gave rise to cross appeals before the  District Court.   The  said  appeals were  heard  together   and  the appellate  court  confirmed the decree passed by  the  trial court  in  respect of Kha and Ga lands.  In  regard  to  the

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lands  in  Schedule Ka the appellate  court  maintained  the declaration  in favour of the appellant but  discharged  the conditional  decree for possession because it held  that  in regard to the said lands the appellant must be left to  move the  sovereign authority to sue for resumption of  the  said lands. This  appellate  decree  became the subject  matter  of  two appeals  and  cross objections before the High  Court.   The High  Court has held that the finding concurrently  recorded by  the courts below in regard to the burden  subsisting  on the  lands in question was based on evidence most  of  which was hearsay and the whole of which taken together was meager and  insufficient in law to sustain the said  finding.   The High Court has also criticised the courts below for  placing the onus of proof in regard to the character of the lands on the respondents.  According to the High Court it was for the appellant to prove his case in respect of the nature of  the original grant.  The High Court has then taken into  account the fact that the evidence shows that many of the lands were transferred to strangers and that was inconsistent with  the case made out by the appellant.  Besides, the High Court has referred  to  the  fact  that  the  lands  in  question  are described  as  Brahmottar lands in revenue papers  and  that clearly  shows  that  the  said  lands  are  heritable   and transferable  without  restriction.   On  the  question   of limitation  the  High  Court has accepted the  plea  of  the respondents that Article 144 of the Limitation Act  applied. As  to  the  declaration granted to  the  appellant  by  the District  Court  the High Court has observed that  the  said declaration  was absolutely futile.  In the result the  suit preferred  by  the appellant has been dismissed  with  costs throughout.  It is this decision which is challenged  before us  by  the  appellant with a  certificate  granted  to  the appellant by the High Court in that behalf 951  The  principal point which has been urged before us by  Mr. Jha for the appellant is that the High Court was in error in coming  to  the  conclusion that lands  in  suit  which  are admittedly  described  as Brahmottar lands  in  the  revenue records  are  transferable  without,  any  restriction.   In support of its conclusion the High Court has referred to the history  of the lands, the nature of the initial  grant  and the recognition of the title of the grantees by the  British Government after it conquered Assam and of the several steps taken  thereafter.  This history has been set out in  detail in the Assam Land Revenue Manual(1).  From this introduction it appears that Nisf-khiraj (half-revenue paying) estates as distinguished  from  Khiraj (full. revenue  paying)  estates form  a class of tenure found only in Assam Proper and  they have a special history of their own.  In 1834, shortly after Assam was annexed by the Government of India it ruled that " all  rights  to  hold lands free of  assessment  founded  on grants  made by any former Government must be considered  to have  been  cancelled by the British conquest.   All  claims therefore  for restoration to such tenure can rest  only  on the  indulgence of the Government without any  right."  This ruling  clearly  and  emphatically  brought  out  the  legal consequences  of  political conquest.  Grants  made  by  the previous  Governments came to an end and  their  continuance after  the conquest would depend upon the indulgence of  the succeeding Government. It  appears  that prior to the conquest of Assam  under  the previous  regime  the predecessors in interest of  the  then owners of Nisf-khiraj estates held their lands  revenue-frce and  called  themselves  lakhirajdars.   They  continued  to

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describe  themselves  as such even after  their  lands  were resumed  and assessed at half rates.  Mr. Scott,  the  first British  Commissioner  of Assam, refused  to  recognise  any claims  to hold land revenue-free.  Research made by him  in that  behalf showed that even prior to the Burmese  conquest of  Assam  lakhiraj land had occasionally been  assessed  at five annas a pura (four bighas) in timer, of trouble by (1)  Vol. 1, 6th Ed., p. lxvii. 952 the  Assam  Rajahs  themselves.   Basing  himself  on   this precedent Mr. Scott fixed the assessment of the said land at the  said  rates and subsequently increased it to  seven  or eight  annas a pura.  This imposition war, known  as  Police Barangani. Captain (afterwards General) Jenkins became the Commissioner of Assam in 1834.  The lakhirajdars objected to pay the  tax imposed  on their lands by Mr. Scott on the ground that  Mr. Scott  intended  to levy the said tax  temporarily  and  had promised Lo remit it.  This dispute was referred by  General Jenkins to the Government of India who replied that they saw no  reason to believe that the tax imposed by Mr. Scott  was intended to be temporary, and they added that if it was  Mr. Scott’s  intention it would Dot be valid because  Mr.  Scott had  not  obtained the sanction of the  Government  in  that behalf.   Even so, the Government of India directed  that  a full  enquiry  should be made into all claims  to  rent-free lands on the part of Rajahs or as debotter or dharmottar  or on  any  other plea throughout the districts  of  Assam  and Captain Bogle was appointed Special Commissioner to make the said enquiry under Regulation III of 1818.  This enquiry had to  be  held subject to the control and  orders  of  General Jenkins.   The Government prescribed certain  principles  to guide Captain Bogle in his enquiry.  One of these principles was  that pending the lakhiraj enquiry Mr. Scott’s  moderate rates  were  to  be  levied.   The  orders  issued  by   the Government in that behalf clearly declared the right of  the Government  to assess all lands held revenue-free  in  Assam Proper,  but subject to this right Government were  prepared to grant the indulgence of restoring to the lakhirajdars all lands held by them and to confirm them in possession. It  appears that the instructions issued by  the  Government were  not fully carried out by General Jenkins.  Instead  of treating all lakhiraj lands as being on the same footing and liable  to assessment the General drew a  broad  distinction between  debotter lands which were appropriated  to  temples and lands known as brahmottar or dharmottar, that is to say, 953 lands  devoted  to some religious purpose not  being  temple lands.   In  respect of the former he confirmed  the  grants revenue-free.  In respect of the latter be simply  confirmed the  grantees  in possession subject to the payment  of  Mr. Scott’s favourable rates until, Captain Bogle’s enquiry  was terminated and final orders passed in that behalf It is curious that though the enquiry of Captain Bogle  went on  for  many years it was not formally completed  till  the year  1860.   By that time the instructions  issued  by  the Government of India at the commencement of the enquiry  were lost sight of.  No report was submitted to the Government by the enquiring officer and final orders of the Government  of India were not obtained on the question whether the  holders of brahmottar and dharmottar lands were to hold their  lands at  the  rates  fixed by General  Jenkins.   In  consequence holders of these lands have ever since continued to hold  at half rates without any formal decision by the Government  of India having been reached in that behalf.  Subsequently  the

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holders’  rights to continue to hold the lands at  the  said rates  have  been recognised and their  holdings  have  been declared to be heritable and transferable by the  Government of India in 1879. This  summary of the history of these lands which is  to  be found  in the introduction to the Assam Land Revenue  Manual shows that Nisf-khirajdar of the present day " is ordinarily a person whose lands were claimed by his ancestors  revenue- free on the ground that they were granted by the Assam Rajas for some religious or charitable purpose".  It appears  that the word " Nisf-khiraj " was invented for the first time  in 1871  and  it  applied to all estates which  paid  half  the ordinary  revenue rates.  This word was presumably  invented to avoid confusion caused by the use of the word "  lakhiraj which had been applied to them prior to 1871. The  history  of  this tenure is  similarly  stated  in  the Government  Gazette relating to Assam as well as  by  Baden- Power (Vol. III, pp. 406 following). 954 At this stage it would be necessary to refer to the relevant provisions of Regulation 1 of 1886,.  It in called the Assam Land and Revenue Regulation of the said year.  Section  3(g) of  this Regulation defines " land holder " as  meaning  any person  deemed to have acquired the status of a land  holder under  s. 8 ; while s. 8 (1) provides, inter alia, that  any person who has, before the commencement of this  Regulation, held   immediately  under  the  Government  for  ten   years continuously  any land not included either in a  permanently settled  estate,  or in a revenue-free estate, and  who  has during  that period paid to the Government the  revenue  due thereon  or  held the same under an express  exemption  from revenue,  shall be deemed to have acquired the status  of  a land  holder in respect of the land.  That takes us to s.  9 which  provides  that a land holder shall have  a  permanent heritable and transferable right of use and occupancy in his land  subject to the provisions contained in cls.  (a),  (b) and (c) of the said section.  It is unnecessary to refer  to the said exceptions.  It would thus be clear, and indeed  it is not disputed, that the transferor Bardeuries who held the lands  in  suit  fall under s. 8 (1)  (a)  and  became  land holders under s. 3 (g).  The inevitable consequence of  this position  is that s. 9 applies to them and their  rights  in the lands in their occupation are statutorily recognised  to be  permanent, heritable and transferable.   This  statutory position  is  consistent with the declaration  made  by  the Government  of  India  in 1879, and in view  of  this  clear statutory position it would be difficult to sustain the plea that  the  lands in question are burdened with  the  special condition  that they can be transferred only  to  Bardeuries and  not  to any strangers outside the group.  As  the  High Court  has  found. and that is no longer in  dispute,  these lands  are described as brahmottar lands in revenue  records and  to  the  said lands and  their  holders  the  statutory provisions of the Regulation to which we have just  referred applied;   therefore,  it  is  impossible  to   escape   the conclusion   that  by  virtue  of  the  relevant   statutory provisions of the Regulation the lands must be deemed to  be heritable and transferable without any restrictions 955 This  aspect  of the matter was completely  ignored  by  the trial  court and the appellate court, and so the High  Court was  right in correcting the error which had crept into  the concurrent decisions  of the courts below. Besides, the High Court was also right in holding that in  a case  of this kind where the appellant urged that the  lands

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could be alienated only to a specified class of persons, the onus  ’Was  on the appellant and not on the  respondents  to prove  the  contrary.   Failure  to  put  the  onus  on  the appellant  introduced  a serious infirmity in  the  approach adopted  by the courts below in dealing with this  question. That  was another infirmity in their decision.  It  is  also clear that the evidence adduced by the appellant in  support of  his case to which reference has been made by  the  first two  courts is entirely unsatisfactory  and, even if  it  is believed,  in  law it would be insufficient to  sustain  the plea  that there was a limitation on the transferability  of the  lands  in  question.  We are also  satisfied  that  the declaration  granted  by  the  District  Court  was  futile. Therefore, in our opinion, the view taken by the High  Court is  absolutely  correct  and  the  grievance  made  by   the appellant against the validity of the said conclusion cannot be sustained. In the result the appeals fail and are dismissed with Costs. Appeals dismissed.