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PETITIONER: MAHARAJA PRATAP SINGH BAHADUR

       Vs.

RESPONDENT: THAKUR MANMOHAN DEO AND ORS.

DATE OF JUDGMENT: 28/02/1966

BENCH:

ACT: Bengal Ghatwali Lands Act, 1859 (Act V of 1859), ss.  1  and 2--The Court of Wards Act, 1870 (Act IV of 1870), ss. 8,  9, 13-Provisions  of  former Act in respect of long  leases  of ghatwali  lands in conflict with provisions of  latter  Act- Whether  conditions  in both Acts to be satisfied  Lease  of ghatwali estate land in perpetuity-Lease executed by  Deputy Commissioner-Presumption  of  valid execution under  s.  114 Indian Evidence Act, 1872.

HEADNOTE: A lease in perpetuity in respect of certain lands  belonging to  a ghatwali estate situated in the area of  present  West Bengal  was granted in 1873 of the  predecessors-in-interest of  the  appellant  for the  purpose  of  erecting  dwelling houses.   The  lease was executed on behalf of  the  Estate, which was under the management of the Court of Wards, by the Deputy  Commissioner of Santal Pargana.  In 1952  the  lease was  challenged by the Ghatwal as being void.  According  to the  Bengal Ghatwali Lands Act 1859 (Act V of 1859)  such  a lease  could be executed by the Court of Wards  for  certain specified  purposes which included the erection of  dwelling houses.  Under the Court of Wards Act 1870 (Act IV of  1870) the  Court  of  Wards  could grant such  a  lease  with  the sanction of the Board of Revenue.  The trial court held that the lease was void as it was not sanctioned by the Board  of Revenue.  The High Court held that the case must be  decided on  the provisions of Act V of 1859 which was a special  Act overriding the general Act i.e., Act IV of 1870.   According to  the  High Court the lease was void under Act V  of  1859 because  it  was not executed by the Court of  Wards.   Even under Act IV of 1870 it was void for want of sanction of the Board of Revenue.  In appeal to this Court, HELD : The lease was valid. (i)  The Bengal Ghatwali Lands Act, 1859 was a  special  Act dealing  with ghatwali lands.  The Court of Wards Act,  1870 was  a  general  enactment.   On  the  principle   generalia specialibus non derogant the provisions of the former Act in respect  of leases of ghatwali lands would prevail over  the provisions  of the latter Act regarding lease of land  under the management of the Court of Wards. [669 B-C] (ii) The  lease in question was for the purpose  of  raising dwelling  houses and thus one of the conditions in s.  2  of the Act of 1859 was satisfied.  The other condition that the lease  must  be  executed by the Court  of  Wards  was  also satisfied in the case inasmuch as under s. 114 of the Indian Evidence  Act the official act of execution of the lease  by the  Deputy  Commissioner  must be  presumed  to  have  been regularly performed i.e., with due authority from the  Court

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of Wards. [669 G, H] (iii)     Even  on the footing that the Court of Wards  Act, 1870 was applicable to the case, the lease could not be said to  be void.  A combined reading of ss. 8, 9 and 13  of  the said Act showed that the Collector (or Deputy  Commissioner, since the terms are synonymous) could grant a lease of  land in the management of the Court of Wards in his district;  he could  grant a lease in perpetuity with the sanction of  the Board of Revenue.  In the present case it could be  presumed under  s. 114 of the Evidence Act that the sanction  of  the Board of Revenue was duly obtained. [670 D] 663 664

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 35 of 1963. Appeal from the judgment and decree dated August 9, 1960  of the Patna High Court in Appeal from Original Decree No. 438  of 1954. Ugra Singh and D. Goburdhun, for the appellant. Sarjoo Prasad and R. C. Prasad for respondent no. 1. U. P. Singh, for respondents nos. 2 and 3. The Judgment of the Court was delivered by Subba Rao, J. The facts that gave rise to this appeal may be briefly stated.  In the plaint there are three schedules, A, B and C. We are concerned in this appeal only with schedules A  and C and nothing, therefore. need be said in  regard  to schedule 13.  The lands described in schedules A and C  were situate in Rohini Ghatwali Estate.  When that Estate was  in the management of the Court of Wards, on March 25, 1873, the then Deputy Commissioner, Santal Paragana, on behalf of  the Court of Wards representing the said Estate executed a lease in  perpetuity  in  respect of the A  schedule  property  in favour  of  Maharaja  Sir  Jai  Mangal  Singh  Bahadur,  the predecessor-in-interest  of  the  2nd  defendant,  for   the purpose  of  erecting  dwelling  houses  thereon.   The  2nd defendant  and his ancestors had been in possession  of  the said  property since the date of the said lease.  The  lands described  in  Schedule  C annexed to the  plaint  were  not covered  by the said lease, but it is alleged that  the  2nd defendant  and his ancestors had been in possession  of  the same.   The  plaintiff, who is the present  Ghatwal  of  the Rohini Ghatwali Estate, after attaining majority on  October 17, 1949, filed Title Suit No. 37 of 1952 on the file of the Court  of  the Subordinate Judge, Deoghar, for  recovery  of possession of the said lands on the ground, inter alia, that they  formed part of his Estate and that the lease  executed by  the  Deputy Commissioner in respect of  the  A  Schedule lands  was  void, as it was not countersigned  by  the  Com- missioner,  Bhagalpore,  and that the 2nd defendant  had  no title  to  the C Schedule lands.  To that suit  the  Member, Boardof  Revenue,  Bihar,  was made the  1st  defendant  and Maharaja  Pratap  Singh, the  successor-in-interest  of  the lessee,  being  a  minor represented  by  the  Collector  of Monghyr,  as  representing the Court of Wards,  as  the  2nd defendant.   The 2nd defendant contended that the  suit  was barred by limitation. The  learned Subordinate Judge held that the lease  executed on behalf of the Court of Wards, not having been  sanctioned by  the  Board  of  Revenue, became  void  as  soon  as  the superintendence  of the Court of Wards was removed from  the Ghatwali Estate.  So far as the lands mentioned in  Schedule C  were concerned, he came to the conclusion that they  were

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outside the scope of the lease 665 of  1873 and, therefore, the plaintiff was entitled  to  get possession thereof.  He held that the suit was not barred by limitation.   In  the  result he decreed  the  suit  of  the plaintiff for possession of A and C Schedule lands.  Against the  said  decree the 2nd defendant filed an appeal  to  the High Court at Patna. The  said appeal was heard by a division Bench of  the  High Court.   It  held  that the validity of the  lease  of  1873 should  be judged on the provisions of the  Bengal  Ghatwali Lands Act, 1859 (Act V of 1859) and not on those of Court of Wards  Act, 1870, (Act IV of 1870) and so judged  the  lease was  void, as it was not executed by the Court of  Wards  as provided  thereunder.  It also held that even if Act  IV  of 1870  applied,  the  lease  would be  void  inasmuch  as  no sanction  of the Board of Revenue was - obtained under s.  9 of the said Act.’ In regard to the C Schedule properties  it accepted  the finding of the learned Subordinate Judge  that it  was  not the subject-matter of the said lease.   But  it further held that the suit was not barred by limitation.  In the result, the decree of the first court was confirmed; but in  the  circumstances of the case, no order for  costs  was made.  Hence the present appeal. At  the  outset learned counsel for the appellant  raised  a point  for  the  first time before this Court  that  as  the Rohini  Ghatwali Estate vested in the Government  under  the Bihar Land Reforms Act, 1960. (Bihar Act XXX of 1950).   The plaintiff  had no locus standi to maintain the  suit.   When this appeal came up for hearing before this Court on  August 18, 1965 it called for a finding from the High Court on  the point whether the subject-matter of the appeal had vested in the  State Government under the said Act.  Pursuant to  that order, the High Court submitted a finding to the effect that the  subject-matter of the appeal vested in the State  under Notification  No.  74  L  .  R./Zan.  dated  May  22,  1952, published  in Bihar Gazette issued on May 29, 1952.  At  the time this Court called for a finding, no decision was  given by it on the question raised by the appellant as regards the locus  standi  of  the plaintiff to file  the  suit.   After hearing arguments we now find that this is not a case  where we  can  dismiss the suit on the ground  that  the  subject- matter of the suit vested in the State Government.  The suit was  filed on October 21, 1952, i.e., after the  Estate  had vested  in  the  Government.  But  the  defendants  did  not contest  the suit on the ground that after such vesting  the plaintiff had no locus standi to maintain the suit.  Pending the  appeal in the Patna High Court, the State of Bihar  was made a party to it on February 19, 1957; but the said  State did  not put forward its claim to the suit  property.   That apart,  the question whether Basauri Ghatwali Tenure  vested in the State was the subject-matter of T.S. No. 115 of  1950 between  the  parties.   It is represented to  us  that  the learned  Subordinate Judge held in that suit that  the  said tenure also vested in the State, that an appeal filed in the High  Court also went against the respondents and  that  the respon- 666 dents   would  file  an  appeal  to  this  Court.   In   the circumstances we do not think we are justified in permitting the  appellant  to raise for the first time  before  us  the contention  based  upon  the provisions of  the  Bihar  Land Reforms  Act.  But we must make it clear that we leave  open the  said question in view of the fact that proceedings  are pending in regard thereto,.

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The next question turns upon the validity of the lease  deed of the year 1873.  The lease executed by the Court of  Wards is  not  filed,  but  the  Kabuliat  executed  by  the   2nd defendant’s  ancestor to the Court of Wards is filed and  it is  Ex.  I in the case.  Both the parties proceeded  on  the basis  that  the terms of both the documents are  the  same. Under  Ex.  1,  Maharaja Sir Jaymangal  Singh  Bahadur,  the ancestor  of  the 2nd defendant, had taken on  lease  the  A scheduled  property  for the purpose  of  erecting  dwelling houses  from  Brown  Wood,  the  then  Deputy  Commissioner, Santhal   Pargana,   on  behalf  of  the  Court   of   Wards representing the Rohini Ghatwali Estate.  That document  was executed  under  ss.   I and 2 of Act V  of  1859.   Learned counsel for the appellant contended that the validity of the lease  was questioned by the respondents in the plaint  only on  the  ground  that  it  was  not  countersigned  by   the Commissioner  of Bhagalpore, that the High Court went  wrong in  invalidating it on a different ground and that,  in  any view,  having regard to the fact that a period of  about  80 years had elapsed from the date of the lease, the High Court should  have  presumed  that the document  was  executed  in strict conformity with the provisions of both Act IV of 1870 and Act V of 1859. Mr.  Sarjoo Prasad, learned counsel for the respondents,  on the other hand, argued that both Act IV of 1870 and Act V of 1859  are  complementary to each other, that a lease  to  be valid  should comply with the provisions of both  the  Acts, that  a  lease in order to bind a Court of Wards  should  be executed  in  the manner prescribed by Act TV  of  1870  and that, as the lease was not executed by the Court of Wards as defined  by the said Act with the sanction of the  Board  of Revenue,  it was null and void on the removal of the  Estate from the superintendence of the Court of Wards. To  appreciate  the  rival contentions it  is  necessary  to consider  the  scope  of the said two  Acts.   The  relevant provisions of the said Acts may be extracted. The Bengal Ghatwali Lands Act, 1859 (Act V. of 1859). Section  1.  Ghatwals  holding  lands  in  the  district  of Birbhoom  under the provisions of the  aforesaid  Regulation (The Bengal Ghatwali Lands Regulation, 1814) shall have  the same power of granting leases for any period which they deem most  conducive  to the improvement 667 of their tenures as is  allowed by law to the proprietors of other lands: Provided  that  no lease of ghatwali lands  for  any  period extending  beyond the lifetime or incumbency of the  grantor of the lease shall be valid and binding on the successors of the  grantor,  unless  the same shall  be  granted  for  the working  of mines or for the clearing of gunle, or  for  the erection of dwelling-houses or manufactories, or for  tanks, canals  and  similar  works, and shall be  approved  by  the Commissioner of the Division, such approval being  certified by  an endorsement on the lease under the signature  of  the Commissioner. Section 2. If any of the said ghatwali lands be at any  time under  the  superintendence  of  the  Court  of  Wards,   or otherwise  subject to the direct control of the officers  of the  Government, it shall be lawful for the Court of’  Wards or the Commissioner to grant leases for any such purpose  as aforesaid;  and  every lease so granted shall be  valid  and binding on all future possessors of the said lands, anything in the existing law to the contrary notwithstanding. The Court of Words Act, 1870 (Act of 1870) Section 8. In every division of the provinces subject to the

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control  of the Lieutenant Governor of Bengal,  there  shall from and after the passing of this Act, be a Court of Wards. The  Commissioner of revenue of each such division shall  be such  court, and shall have and exercise all the powers  and authorities  conferred by this Act upon the court  over  the persons and property of all wards of’ such court. Section  9.  It shall be competent to the court  to  manage- estates  and other lands failing under their charge,  either by  appointment of a manager, or by giving some or  all  the estates and lands in farm, or by adopting such other form of management  as  may to the said court seem  most  expedient. Provided  that  no  lease or farm  shall  accept  under  the sanction  of  the  Board of Revenue, be  given  for  a  term exceeding ten years, not beyond the period of expiration  of the  ward’s minority, and provided that all leases given  by the  court, or by the Collector acting for the court, or  by the  manager, shall become null and void on the  removal  of the  estate  from  the  superintendence  of  the  court  for whatever  cause,  save  leases made with  such  sanction  as aforesaid. 668 A  comparative study of these two Acts discloses that Act  V of  1859 is a special Act dealing with a  specific  subject- matter, namely, Ghatwali lands in the district of  Birbhoom: it  also provides for a particular incident of  the  tenure, namely,  the power to lease the said lands.  It says that  a ghatwal holding lands shall have the same power of  granting leases  as  is allowed by law to the proprietors  of  ,other lands.   The  proviso  thereto  enacts that  a  lease  of  a ghatwali land for a period extending beyond the lifetime  of the grantor is not binding on the successors unless the same was  granted  for the purposes specified  therein  with  the approval  of  the  Commissioner  signified  in  the   manner prescribed  thereunder.  But s. 2 thereof provides  that  in the case of a ghatwali land under the superintendence of the Court of Wards, it shall be lawful to the Court of Wards  or the Commissioner to grant leases of the same for any of  the purposes  mentioned in the proviso thereto.  In that  event, such leases shall be binding on the future possessors of the said  land.   It  is,  therefore,  manifest  from  the  said sections  that  a Court of Wards could grant a  lease  of  a ghatwali  land  for  erecting dwelling houses so  as  to  be binding  on  the future possessors of the  said  land.   The Court  of Wards Act deals generally with the  management  of all  the estates that come under the superintendence of  the Court of Wards and in respect of lands in such estates,  the Court  of  Wards can grant a lease of the same  for  a  term exceeding 10 years or beyond the period of expiration of the ward’s  minority  only  with the sanction of  the  Board  of Revenue. It  is,  therefore, clear that Act V of 1859  is  a  special statute  and  Act  IV of 1870 is  a  general  statute.   The special  statute does not make the sanction of the Board  of Revenue  a  pre-condition  for the  validity  of  the  lease executed  by  a  Court  of Wards so as  to  bind  an  future possessors  of the said land, whereas s. 9 of Act V of  1859 imposes  such  a condition.  The argument is that  both  the Acts  should be read together and, if so read, the  sanction of  the  Board of Revenue would also be a  pre-condition  in addition to the conditions imposed under the proviso to s. I of  Act  V  of  1859.  In our view,  such  a  contention  is untenable.   The  principle of law in this  regard  is  well settled.  In Maxwell on the Interpretation of Statutes,  the relevant principle is stated, at p. 168, thus: "A  general later law does not abrogate an  earlier  special

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one   by  mere  implication.   Generalia   specialibus   non derogant, or, in other words, ’where there are general words in   a  later  Act  capable  of  reasonable   and   sensible application  without  extending them to  subjects  specially dealt with by earlier legislation, you are not to hold  that earlier   and  special  legislation   indirectly   repealed, altered,  or derogated from merely by force of such  general words,  without any indication of a particular intention  to do  so.  in such cases it is presumed to have  only  general cases 669 in  view, and not particular cases which have  been  already otherwise provided for by the special Act’.  " If  this principle is applicable to the instant  case-we  do not see any reason why it is not-the special provisions made under Act V of 1859 in regard to the conditions imposed  for the  validity  of  such a lease should  prevail  over  those imposed under the general Act, Act IV of 1870.  The  general Act  in regard to leases of ghatwali lands should  yield  to the  special Act.  On this construction, the  condition  for the validity of the lease in question is that it should have been  executed  by  the Court of Wards for  the  purpose  of erection  of dwelling houses.  The lease of  1873  expressly states  that  the lease was granted  for  erecting  dwelling houses. The  only outstanding question that remains in this  context is whether it was executed by the Court of Wards. Exhibit  I  purports to have been given in favour  of  Brown Wood,  the then Deputy Commissioner of Santhal  Pargana,  on behalf  of  the  Court  of  Wards  representing  the  Rohini Ghatwali Estate for the purpose of erecting dwelling  houses under ss.  I and 2 of Act V of 1859.  The only flaw  pointed out  by the learned counsel is that there is nothing in  the Act to indicate that a Deputy Commissioner can grant a lease of a ghatwali land on behalf of the Court of Wards.  But the document was ex facie executed by the Deputy Commissioner on behalf of the Court of Wards and the validity of it was  not questioned  till  the suit was filed, that is for  about  80 years.  The lessee and his successors-in-interest have  been in  possession  of  the  lands all  these  years.   In  such circumstances  the  presumption under s. 114 of  the  Indian Evidence Act can readily be drawn.  Under that section: "The  Court may presume the existence of any fact  which  it thinks  likely  to have happened, regard being  had  to  the common  course of natural events, human conduct  and  public and private business, in their relation to the facts of  the particular case." Under illustration (e) the ’court may presume that  judicial and  official  acts have been regularly  performed.   If  an official  act  is  proved  to have been  done,  it  will  be presumed  to have been regularly done.  In this case it  has been  proved  that the lease was executed on behalf  of  the Court  of Wards and that the lessee and his successors  have been  in unquestioned enjoyment of the said lands  for  many years.  Indeed, the plaintiff in the plaint does not  allege that  the Deputy Commissioner was not legally authorized  to Act  on behalf of the Court of Wards; his only objection  is that the document was not countersigned by the  Commissioner of   Bhagalpur  Division.   But  that  condition  was   only applicable  to a lease executed by a Ghatwal and not by  the Court of Wards.  In the circumstances, we M It  Sup.C.I./66- 11 670 think  it  is  a fit case where  the  court  can  reasonably presume  that  the Deputy  Commissioner,  under  appropriate

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rules, was duly authorised to act on behalf of the court  of Wards. Assuming  that  the conditions laid down in Act IV  of  1870 should  also be complied with, we think the respondents  are not in a better position.  Under s. 9 of the Court of  Wards Act,  the  Court  of  Wards can grant a  lease  for  a  term extending to 10 years or for a period beyond the  expiration of  the  ward’s minority with the sanction of the  Board  of Revenue.  Under s. 8 thereof, the Commissioner of Revenue of each division shall be the Court of Wards.  Under s. 9,  the Court  of  Wards is competent to manage  estates  and  lands falling  under its charge and one of the acts of  management is  to grant leases of lands.  Under s. 13, when estates  or lands  of wards are situated within more than  one  district but within the same division, the Collector of each district shall exercise the duties of the Court of Wards with respect to  the  ward’s  property situate within  his  district.   A combined  reading  of these provisions  indicates  that  the Collector can grant a lease of a property situate within his district,  for,  the  grant  of a  lease  of  lands  in  his management  is certainly an act of management.  That he  can do  so is also implicit under the provisions of s.  9,  for, under  that section a lease granted by the Collector  acting for the Court of Wards is valid beyond the prohibited period if  it was made with the sanction of the Board  of  Revenue. On a fair reading of the provisions of the Act we have  come to the conclusion that the Collector could grant a lease  in perpetuity with the sanction of the Board of Revenue. The  only question now is whether such a sanction was  given by  the Board of Revenue.  The Kabuliat indicates  ex  facie that  the  lease  was granted in perpetuity  by  the  Deputy Commissioner  on  behalf of the Court of Wards.  It  is  not disputed  that  the expressions  "Deputy  Commissioner"  and "Collector"  are synonymous.  The same officer is called  by both  the names and he discharges the same  functions.   The land  covered  by  the  lease has  been  in  possession  and enjoyment of the lessee for about 80 years.  The validity of the  said  grant was not questioned all  these  long  years. Even  in the plaint its validity was not challenged  on  the ground  that  the sanction of the Board of Revenue  was  not given.   For the reasons mentioned by us in the  context  of Act V of 1859, in our view, this is a fit case where we  can reasonably  presume that when the lease was granted all  the statutory  requirements were complied with, that is  to  say the  Board of Revenue gave its sanction.  For the  aforesaid reasons we hold that the lease of 1873 was valid and binding on the plaintiff. Now coming to C Schedule lands, the position is simple.   It was  concurrently  held  by  the courts  below  that  the  C Schedule  property was not the subject-matter of the  lease. The title to the 671 property, therefore, clearly vested in the plaintiff.  It is also  found by the lower courts that the said property is  a waste  land  in regard to which there can  be  no  effective enjoyment.   The  High Court, therefore,  rightly  drew  the presumption that possession followed title. In  this  view  the question of  limitation  raised  by  the appellant  does not call for a decision, for in the case  of the  A  schedule property the 2nd respondent  loses  on  the question  of title and in regard to the C Schedule  property he  will be presumed to be in possession.  In  either  view, the question of limitation does not arise. In  the result, the appeal is partly allowed and the  decree of  the  High Court is modified.  The parties will  pay  and

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receive proportionate costs throughout. Appeal allowed in part. 672