03 February 1956
Supreme Court
Download

RAJA SRI SAILENDRA NARAYANBHANJA DEO Vs THE STATE OF ORISSA.

Bench: DAS, SUDHI RANJAN,BHAGWATI, NATWARLAL H.,JAGANNADHADAS, B.,AIYYAR, T.L. VENKATARAMA,SINHA, BHUVNESHWAR P.
Case number: Appeal (civil) 122 of 1954


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13  

PETITIONER: RAJA SRI SAILENDRA NARAYANBHANJA DEO

       Vs.

RESPONDENT: THE STATE OF ORISSA.

DATE OF JUDGMENT: 03/02/1956

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN BHAGWATI, NATWARLAL H. JAGANNADHADAS, B. AIYYAR, T.L. VENKATARAMA SINHA, BHUVNESHWAR P.

CITATION:  1956 AIR  346            1956 SCR   72

ACT: Estates Abolition-’Estate’, Meaning of-Estoppel by  Judgment -Test-Respondent,  if can rely on grounds not  specified  in his  Statement of Case-Orissa Estates Abolition Act  (Orissa Act  I  of 1952), Ss. 2 (g), 3 (1)-Supreme Court  Rules,  0. XIX, r. 4.

HEADNOTE: The  appellant  sued the State of Orissa for  a  declaration that  the  Orissa Estates Abolition Act of 1951 was  in  its application to the Kanika Raj, of which he was the Raja  and owner,  invalid, unconstitutional and ultra vires the  State Legislature  and for an injunction restraining the State  of Orissa  from  taking  any  action under  the  Act.   It  was contended, inter alia, that no notification under s. 3(1) of the Act vesting the Kanika Raj in the State of Orissa  could issue as the Raj was not an estate as defined by s. 2 (g) of the  Act.  The contrary was asserted by the State of  Orissa and  its  further  contention was  that  the  appellant  was estopped by a compromise decree between his predecessors-in- title  on  the one band and the Secretary of  State  on  the other from denying that the Raj was an estate as defined  by the Act. Held,  that the Kanika Raj was an estate as defined  by  the Orissa  Estates Abolition Act of 1951 and the appellant  was estopped from denying it by the compromise decree. That  the real intention of the Act in defining ’estate’  as it has done in s. 2(g) of the Act, was to include all lands, such  as  the appellant’s, which were as a  matter  of  fact included  ill  the register prepared under the  Bengal  Land Registration  Act Of 1876, and in construing the  definition it is wholly unnecessary to consider whether such  inclusion was valid or proper or in conformity with the meaning of  an estate under that Act. That  a judgment by consent is as effective in  creating  an estoppel  between the parties as a judgment on  contest  and the test is whether the judgment in the previous case  could have  been passed without the determination of the  question which is put in issue in the subsequent case where the  plea

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13  

of estoppel is raised. Held further, that there is no rule corresponding to Rule  4 of -Order XIX of the Supreme Court Rules imposing a  similar disability  on the respondent, and even with regard  to  the appellant the court may in appropriate cases, give him leave to raise a ground not specified in the Statement of the Case filed by him. 73

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 122 of 1954. Appeal  under section 109(b) read with section  110,  C.P.C. from the judgment and order dated the 28th September 1953 of the Orissa High Court in O.S. No. I of 1953. P.   R. Das and Bakshi Tek Chand, with M. Mohantiand S. P. Varma, for the appellant. M.   C. Setalvad, Attorney-General of India.  B. Mohapatra, Advocate-General of Orissa with S. Mohanti and P. G. Gokhale, for the respondent. 1956.   February 3. The Judgment of the Court was  delivered by DAS  C.J.-This  is an appeal from the  judgment  and  decree passed on the 28th September, 1953, by a Bench of the Orissa High Court in an Original Suit which was -filed on the  24th November,  1952,  in the Court of the Subordinate  Judge  of Cuttack  and was on the 17th January, 1953,  transferred  to the  High Court and marked as Original Suit No. 1  of  1953. The  suit was filed by the plaintiff-appellant  claiming  as the  Raja and owner of the Rajgee, known as the Kanika  Raj, against the State of Orissa, praying for a declaration  that the Orissa Estates Abolition Act, 1951 (hereinafter 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 10 74 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 AttorneyGeneral, 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 compromise decree passed  by the Patna High Court on 2nd May 1945 in F.A.  No. 15 of 1941 from contending that his land is not an  "estate" within the meaning of the Abolition     Act;   (c)     that the plaintiff’s land has been held as an "estate"  ever since 1803;    (d)    that whatever may have been the position before 1805, the plaintiff’s land became an "estate" by Regulation XII of 1805; and

3

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13  

(e)  that  in  any  event, the  plaintiff’s’land  became  an "estate"  after 1805 by subsequent acts and conduct  of  the plaintiff and his predecessors in title.  Re. (a):-Under section 3(1) of the Abolition Act, the State Government can declare that a specified "estate" has  passed to  and has become vested in the State.  It  is,  therefore, clear that the State Government cannot make any notification with respect to land which is not an "estate".  "Estate"  is defined in section 2(g) of the Abolition Act.  The  material portion  of that definition, as it stood at the date of  the institution of the suit, was as follows:-  ‘‘  ‘estate’  means any land held by  an  intermediary  and included under one entry in any of the general registers  of revenue-paying  lands and revenue, free lands, prepared  and maintained under the law for the time being in force by  the Collector of a district,.........................’’   In  order to be an "estate", the land must be held  by  an "intermediary"  and must be included under one entry in  any of  the  general  registers  of  revenue-paying  lands   and revenue-free  lands  and  such  general  registers  must  be prepared and maintained under the   75 law for the time being in force.  Section 2(h), as it  stood then,  by its earlier part, defined an "intermediary",  with reference to any "estate", to mean, amongst other things,  a proprietor.   The  plaintiff  certainly  claims  to  be  the proprietor  of  his  land.  Therefore, if  his  land  is  an "estate",  he  is clearly an "intermediary".   The  case  of Biswambhar Singh v. The State of Orissa and Others"),  which has been relied on by learned counsel for the plaintiff  has no  application  to  the present case,  for  that  case  was concerned  not with the earlier but with the latter part  of the definition of "intermediary".  That the plaintiff’s land is  included  under  one entry in the  general  register  of revenue paying lands is not disputed.  What is contended for is that in order to make such land an "estate" the  register must  be 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  landrevenue,  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 preparation of a  register under that Act means the making of entries in that (1) [1954] S.C.R.842 76 register  of lands which are subject to the payment of  land revenue for the discharge of which a separate engagement has been entered into.  Land which is not subject to payment  of land  revenue  and  for the discharge of  which  a  separate

4

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13  

engagement has not been entered into is not an "estate"  and cannot  be entered in the register prepared  and  maintained under  the Bengal Land Registration Act.  That  Act  confers powers  on  the  Collector to prepare the  register  in  the manner specified therein and such statutory power, in  order to have effect, must be exercised in strict compliance  with the  provisions of that Act.  The plaintiff  maintains  that the  Rajgee of Kanika was never subject to payment  of  land revenue for the discharge of which a separate engagement had been entered into by him or his predecessors-in title.   That  the  ancestors  of the plaintiff were  at  one  time independent  chiefs and that the Rajgee or Killa of,  Kanika was  in  ancient  time an independent  State  are  conceded. Later on, the Rajas of Kanika owed nominal allegiance to the Mahrattas.   Then came the last Mahratta War and the  plains of Orissa were conquered by the East India Company.  On 22nd November,  1803, there was an "Engagement" between the  East India Company and Raja Balabhadra Bhanja Deo, the then  Raja of  Killa  Kanika.  The East India Company on the  same  day granted a Kaool-Namah to the Raja.  Under the Engagement the Raja  agreed,  amongst  ’Other things,  to  pay,  as  annual Peshkush or tribute, 84,840 Kahuns of Cowrees, amounting  to Rs.  20,407-12-1 1. This Engagement was confirmed by  clause 10  of the Treaty of Peace concluded on the  17th  December, 1803,  at  Deogan  between the East India  Company  and  the Mahrattas  which  treaty  was  later  on  ratified  by   the GovernorGeneral  in 1804.  On the 5th September,  1805,  was passed the Bengal Regulation XII of 1805.  Sections 33 to 37 which are material for our present purpose were as follows:- "XXXIII.-The Commissioners having granted sanads to  certain zamindars, entitling them to hold, 77 their  estates at a fixed jama in perpetuity,  those  sanads are  hereby  confirmed’.  The following is the list  of  the names  of  the  zamindars to whom this provision  is  to  be considered applicable:                Zamindar of Killah Darpan,                Zamindar of Killah Sookindah,                Zamindar of Killah Muddoopore. XXXIV.-The 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  zamindars of the mehals specified in the preceding Clause.

5

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13  

 XXXVI.-All Regulations relating directly or indirectly  to the  settlement and collection of the public revenue, or  to the  conduct of the officers employed in the performance  of that  duty, whether European or native, in the  province  of Bengal, which are not superseded by the foregoing rules, are hereby  extended  to,  and declared to be in  force  in  the zillah 78 of   Cuttack.   Provided,  however,  that   nothing   herein contained  shall be construed to authorize the  division  of the lands comprised in any estates in the zillah of Cuttack, in  which  the  succession to  the  entire  estate  devolves according to established usage to a single heir: in cases of this  nature, the Courts of Justice are to be guided by  the provisions contained in Regulation X, 1800.  Provided, also, that  nothing herein contained shall be construed to  imply, that any part of the said Regulations are for the present to be  considered  to  be in force in certain  jungle  or  hill zamindarries  occupied  by a rude and  uncivilized  race  of people  with  the proprietors of which  estates  engagements were  formed  by  the late Board of  Commissioners  for  the payment  of  a  certain  fixed  quit  rent  or  tribute   to Government.   The following is the list of the names of  the mehals  to  which this exemption from the operation  of  the general Regulations is to be considered applicable. Killah Neelgerry,   : Killah Toalcherry,Killah                             Rampore, Killah Bankey, : Killah Attgurh,   Killah                      Hindole, Killah Joormoo,     : Killah Kunjur,Killah                Teegereah, Killah Nirsing-     : Killah Kindeapara,:Killah      pore,          Burrumboh, Killah Augole, : Killah Neahgurh,: Killah                                    Deckenaul.   XXXVII.      The foregoing exemption from the operation of the general Regulations shall likewise, for the present,  be considered  to  be  applicable to the  lands  known  by  the appellation of the territory of Mohurbunge; but it shall  be the  duty  of  the Collector of the  zillah  to  conclude  a settlement with the proprietor of the estate for the payment of  a fixed annual quit-rent, on the principles on  which  a settlement has been concluded with the other bill or  jungle zamindars specified in the preceding section".   It  is  claimed that there was at no subsequent  time  any such revenue settlement as was contemplated by 79 section  XXXV(3) and that there was no  separate  engagement for payment of any land revenue at any time thereafter.  The conclusion  sought to 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,

6

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13  

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 certain  other particulars relating to every such estate  as therein  specified.  Therefore, if the name of Killa  Kanika was borne on the revenue-roll of the district, the Collector would  be bound to enter the same in Part I of  the  general register  prepared  and  kept up by  him  under  section  4. Section  20 of the Act provides that until the registers  by that  Act  directed  to be prepared  were  so  prepared  the existing  registers  then  kept up in the  office  of  every Collector should be deemed to be the registers kept up under the Bengal Land Registration Act, 1876.  Prior to 1876, land registers used to be maintained under the Bengal  Regulation XLVIII of 1793 as amended by Bengal Regulation VII of  1800. Existing  registers  mentioned in section 20 of  the  Bengal Land Registration Act, 1876, clearly refer to registers kept under those Regulations and the learned 80 Attorney-General contends that section 20 gives a  statutory validity to the registers kept under those Regulations.  Mr. P.  R.  Das  appearing for the appellant  submits  that  his arguments apply with equal force to the registers kept under the old Regulations referred to above.  According to him, if the  Collector  entered  lands which were  not  "estate"  as defined  in  the old Regulations, he did  not  exercise  his statutory powers and the entry made by him was a nullity and if  any  of  the existing registers was void  as  regards  a particular  entry, then that entry did not exist  and  could not  be  transferred  to  the new register  and  if  it  was transferred,  such  transfer  was  a  nullity  and  the  new register, qua that entry, was void and could not be said  to have been prepared and maintained under law.   We are unable to accept the line of reasoning developed by Mr. P. R. Das.  To accede to his contention would be to  add words to section 2(g) of the Abolition Act so as to make  it applicable to lands which were "validly" included under  one entry  in any of the general registers  "properly"  prepared and  maintained under the law for the time being  in  force, that is to say, the Bengal Land Registration Act 1876.  This the  court  has  no power to do.  If  section  2(g)  defined "estate" as including lands mentioned in the schedule to the Act, then whatever was included in the schedule would be  an "estate"   within   the  meaning  of  the   Abolition   Act, irrespective of whether such land was or was not an "estate" within  the  meaning of any other Act.  The  same  reasoning 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 81 "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

7

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13  

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 Registration Act, 1876, and whether they were validly or properly entered according  to the provisions of that Act., appears to us  to be wholly irrelevant for the purpose of construing section 3 (g) of the Abolition Act.  In our opinion, the contention of the State of Orissa on this point must be accepted.   Re.  (b):  -Mr.   P. R. Das appearing  for  the  appellant objects to the plea of estoppel being raised, because it has not  been  included in the Statement of Case  filed  in  the present appeal by the respondent.  Order XVIII of the  Rules of this Court deals with the lodging of cases.  Under Rule I no  party to an appeal is entitled to be heard by the  court unless  he  has previously lodged his case  in  the  appeal. Rule 3 lays down how the case is to be prepared and what its contents  should  be.  Order XIX, Rule 4 provides  that  the appellant shall not, without the leave of the Court, rely at the hearing on any grounds not specified in-the Statement of Case  filed by him.  The Privy Council Practice  founded  on Sheo Singh Rai v. Mussumut Dakho and Moorari Lall(1) and set forth  in Bentwich 3rd edition Ruling 63 at page 181  is  to the  same effect.  There is no rule  imposing  corresponding disability  on the respondent.  Further even with regard  to the appellant the Court may, in appropriate cases, give  him leave  to raise a ground not specified in the  Statement  of Case.  In the present case there is no question of surprise, for  the plea of estoppel was pointedly raised and made  the subject matter of an (1)  [1878] L.R. 5 I.A. 87. 11 82 issue  before the High Court and was elaborately dealt  with by  the  High Court in its Judgment under  appeal.   In  the circumstances we do not consider it proper to shut out  this plea of estoppel.   The  plea  of  estoppel is sought to  be  founded  on  the compromise  decree, Ex.  ’O’ passed by the Patna High  Court on  2nd May, 1945, in F. A. No. 15 of 1941.  The  compromise decree  is  utilised  in  the first  place  as  creating  an estoppel by judgment.  In In re.  South American and Mexican Company, Ex parte Bank of England(1), it has been held  that a judgment by consent or default is as effective an estoppel between  the  parties  as  a  judgment  whereby  the   court exercises  its  mind oil a contested  case.   Upholding  the judgment  of  Vaughan Williams, J., Lord Herschell  said  at page 50:-   "The truth is, a judgment by consent is intended to put  a stop to litigation between the parties just as much as is  a judgment which 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

8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13  

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(3), (1) L.R. [1895] 1 Ch. 37.   (2) L.R. 1929 A.C. 482, 493. (3) [1935] I.L R. 63 Cal. 550, 558. 83 Bhaishanker  Nanabhai  and others v.  Morarji  Keshavji  and Co.(1)  and Raja Kumara Venkata Perumal Raja Bahadur,  Minor by  guardian  Mr.  W. A. Varadachariar  v.  Thatha  Ramasamy Chetty and others (2).  In the Calcutta case after referring to  the  English  decisions  the  High  Court  observed   as follows:-   "On  this authority it becomes absolutely clear  that  the consent order is as effective as an order passed on contest, not only with reference to the conclusions arrived at in the previous  suit  but also with regard to every  step  in  the process  of  reasoning  on  which  the  said  conclusion  is founded.  When we say "every step in the reasoning" we  mean the findings on the essential facts on which the judgment or the  ultimate  conclusion was founded.  In other  words  the finding which it was necessary to arrive at for the  purpose of  sustaining  the  judgment in the  particular  case  will operate as estoppel by judgment".   The  correctness  of these principles laid down  in  these decisions  is not disputed by Mr. P.R. Das.   Proceeding  on the  basis  that there is such a principle  of  estoppel  by judgment,  he  contends  that  the test  laid  down  in  the decisions  referred to above is whether the judgment in  the previous   case   could  have  been   passed   without   the determination of the question which was put in issue in  the subsequent case, where the plea of estoppel by the  previous judgment is raised.  This leads us to a consideration of the facts, which are material to this question.   On the 4th February, 1936, the predecessor-in-title of the plaintiff  brought a suit (O.S. No. 7 of 1936) in the  Court of the Subordinate Judge of Cuttack against the Secretary of State  for India in Council, praying for a declaration  that the plaintiff bad a good and indefeasible title to the  beds of  certain rivers, by expressed or implied grant  from  the East India Company, alternatively for a declaration that the plaintiff  had acquired an indefeasible right and  title  to the  beds  of  the said rivers by  prescription  or  adverse possession   and  for  permanent  injunction   against   the defendant restraining him from interfering with the (1) [1911] I.L.R. 36 Bom. 283, (2) [1911] I.L.R, 35 Mad. 75. 84 rights  of the plaintiff in the beds of the said rivers  and the churs formed on them.  The suit was founded on,  amongst others, the following allegations.  In paragraphs 3 to 6  of the plaint were pleaded that the plaintiff’s ancestors  were the  rulers  of Killa Kanika owing allegiance to  the  Hindu Gajapati  Kings  of Orissa and were absolute owners  of  all lands  and  waters  within the ambit  of  their  territories including  the two rivers 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

9

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13  

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 predecessors-in-title  had been independent rulers of  Killa Kanika and as such had valid title to the said rivers within their territory and that after the British conquest the East India Company confirmed the title of the then Raja of Kanika to  whatever  had been in the possession of  the  said  Raja prior to the said conquest and maintained him in  possession thereof,  the plaintiff claimed good and valid title to  the beds  of the said rivers by an express or implied  grant  by the  said East India Company.  A claim of title to the  beds of the said 85 rivers  by  prescription  and adverse  possession  was  also pleaded  by way of alternative plea.  The written  statement of  the Secretary of State was filed on the 29th May,  1936, traversing the allegations in the plaint.  In paragraph 7 it was  definitely pleaded that the Raja, with whom  engagement had been entered into in 1803, was deposed for miisrule  and his status was reduced to that of a Zamindar as a punishment and  that it was as an act of mercy that he was  allowed  to retain  the estate without an enhancement of  his  Peshkush. It was submitted that in view of the treatment of the estate during the past 100 years, it was idle for the plaintiff  to suggest that he retained the rights comparable to those of a Ruling  Chief.  Reading the pleadings and the issues  raised in  the  case fairly and as a whole,it appears  quite  clear that  although  the  Engagement and Kaoolnama  of  1803  was referred  to as a grant, express or implied, from  the  East India Company, the plaintiff was, in substance, founding his claim  on his antecedent title as the Ruling Chief of  Killa Kanika  which, according to him, bad been confirmed  by  the Engagement  and  Kaoolnama of 1803, which  were,  therefore, construed  as  a grant, express or implied,  from  the  East India  Company.  That the real issue on which the  suit  was fought out in the trial court was whether the plaintiff  was an independent Ruling Chief and as such entitled to the beds of  the rivers passing through his territory or was  a  mere Zemindar  and as such having no such right is apparent  from the  following  passage in the judgment of  the  Subordinate Judge--   "It is, therefore, too late now to suggest that the status of  the  plaintiff  in relation to his  Killa  is  something higher  than or superior to that of a holder of  an  estate. In  my view, it is of no consequence, as respects the  point now under consideration 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". 86 After  referring  to the Regulations of 1805 and  1806,  the learned Subordinate Judge proceeded to say:

10

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13  

 "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 that any grant was made either expressly  or impliedly by the sovereign authority in favour of the holder of the Killa.  The main provisions are that the revenue  was fixed for ever, and that the holder was asked to be loyal to the  Company’s  Government.   Thus initially,  I  have  been unable to associate any idea of grant as to be flowing  from these  engagements.  All that can be said, and  perhaps  the earned  counsel for the plaintiff maintains to that  effect, is  that  what  rights  the holder  of  the  Killa  had,  in reference   to  the  Killa,  were  fully  and  without   any limitation  or restriction, recognised.  It  is,  therefore, that the question will now be set at large for a  discussion as  to  what rights the proprietor of the Killa had  at  the time when these engagements were made".   It  is  needless  to extract  further  passages  from  the judgment.   In  the  result the  learned  Subordinate  Judge answered the issues against the plaintiff and dismissed  the suit.   The plaintiff appealed to the Patna High  Court.   A compromise  was  arrived at between the parties,  which  was filed in court and the appeal was disposed of in  accordance with  the terms of the compromise petition.   The  principal terms of the compromise petition were as follows:- 87  "1.  That it shall be declared that the Crown and  for  the matter  of that, the Province of Orissa, the  defendant  has the  title to the disputed river beds, as described  in  the schedule   of  the  plaint,  and   the   plaintiff-appellant acknowledges the same.   2.That the plaintiff-appellant, that is the Proprietor  of the Kanika Estate is the rightful owner of the fisheries  of the said rivers and the defendant has not nor will have  any objection to his unobstructed exclusive permanent  enjoyment of  the  fishery  rights  in the said  rivers  at  any  time whatsoever.   The  respondents  shall  not  claim  nor   the appellant shall be liable to any assessment on that  ground, other  than  what is payable in respect of  the  permanently settled estate of Killa.   3.That  subject  to such rights as the Crown or  in  other words, the Province of Orissa has in the beds of the  rivers aforesaid and in the channel of waters flowing thereon,  the Proprietor of Kanika Estate that is the  plaintiff-appellant will  have  his rights to the ferries over the  said  rivers which he has been so far enjoying and except when such ferry rights  interfere with the Crown’s right in the bed  of  the rivers  and similar 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

11

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13  

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 88 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 navigable in all seasons of the year shall belong to the defendant  and  the plaintiff or  his  successor-in-interest will have a right to possess and take settlement of the same from  the  defendant and the latter will have the  right  to levy  assessment  of land revenue thereon according  to  the principles and provisions of law as laid down in  Regulation II  of  1819 and this assessment will be of force  from  the time when the islands or Chars will appear and be capable of enjoyment  irrespective  of the fact whether  estate  holder does really enjoy it or not’ .   The declaration of the title of the State to the  disputed river  beds was a clear acknowledgment by the  plaintiff  of the  State’s sovereign rights, which  necessarily  negatived the  sovereign  rights  which he asserted  and  claimed  for himself.   The  declaration  that  the  plaintiff,  as   the proprietor of the Kanika estate, was the’ rightful owner  of fisheries  in the said rivers and that the  defendant  would not  claim any assessment on that ground was nothing  but  a recognition  of  the plaintiff’s title as the  holder  of  a permanently settled estate.  The same observations apply  to clause  (3) whereby the plaintiff was declared to  have  the ferry rights over the said rivers, which were expressly made subject  to  the  rights of the State in  the  beds  of  the rivers.   The provision that all future riparian  accretions or  Chars  formed adjoining the banks of  the  rivers  would always  be deemed part of the permanently settled  Zemindari of  Kanika  and should be possessed by him  without  further payment  of  assessment of land revenue over and  above  the land  revenue  that  had  been  permanently  fixed   clearly acknowledges  that the plaintiff accepted the position  that he  had no rights other than what he had as the holder of  a permanently  settled  estate liable to the payment  of  land revenue, in contradistinction to 89 tribute  fixed in perpetuity.  The provisions of clause  (6) of   the  terms  of  settlement  also  point  to  the   same conclusion.   Mr. P. R. Das contends that the issue in the present  case is  whether  the land held by the plaintiff is  an  "estate" within  the  meaning of the Bengal  Land  Registration  Act, 1876, whereas the issue in the earlier case was whether  the plaintiff  ’s  predecessors had title to the river  beds  by express  or  implied grant from the Crown.   This  does  not appear  to  us to be a fair reading of the  pleadings  as  a whole.  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

12

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13  

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 entered into,  will be to permit the plaintiff to set up a sovereign status  for himself,  which  he  actually did in the  earlier  case  but failed to establish in the trial court and which he, by  the compromise, expressly abandoned in the appeal court.  In our judgment the compromise decree precludes the plaintiff  from re-asserting  the  title, which had been  negatived  by  the compromise decree although it related only to his claim to a part of the lands, namely 12 90 the beds of the rivers therein mentioned.   The compromise decree is also sought to be pleaded by  the State  against the plaintiff as estoppel by  representation. It  is  said,  that  even if  the  compromise  had  not  the imprimatur   of  the  court,  it  would,  nevertheless,   be representation  that  the plaintiff’s  predecessor  was  the Zemindar  of a permanently settled estate.   The  compromise consisted of reciprocal concessions, those made by one party being the consideration for those made by the other.  It was on  the  basis  of the concession made  by  the  plaintiff’s predecessor, namely, that he was a Zemindar of a permanently settled  estate, that the State gave up the benefit  of  the decree  which  had been passed in its favour  by  the  trial court  and  also  the  right  to  levy  assessment  on   the accretions of future Chars.  One of the main  considerations for  the compromise ,was the clear admission on the part  of the  plaintiff  in that case that his status in  respect  of Killa Kanika was nothing more than that of a proprietor of a permanently settled estate liable to pay land revenue.   The High  Court decided the issue of estoppel against the  State on  two considerations, namely, (1) that the status  of  the owner of Killa Kanika was not directly and substantially  in issue  in the earlier litigation and (2) that there  was  no clear  evidence  led on the side of the State  to  establish that  the  admission by the plaintiff in that  case  of  his status  was the main consideration for the  compromise.   We are satisfied that the High Court was in error on both these points.   As already pointed out, the  pleadings  summarised above and the passages in the judgments quoted above clearly indicate that the status of the plaintiff was the foundation of his claim to the river beds and was consequently directly and  substantially  in  issue in  that  litigation  and  was understood  to  be so by the -parties  themselves.   On  the second  ground  the  terms  of  the  compromise  speak   for themselves.  It is quite clear that the concessions made  by one party were the consideration for those made by the other party  and,  therefore, it was not necessary to  adduce  any further evidence, assuming that any evidence was 91

13

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13  

admissible for the purpose.  In our judgment, the finding of the High Court on this issue was clearly erroneous.   Each  of the conclusions we have arrived at on  the  first two  points is quite sufficient, by itself, to enable us  to dispose  of  this appeal and it is not necessary for  us  to deal  with or express any opinion on the other three  points canvassed  before us.  The result, therefore, is  that  this appeal   should  be  dismissed  with  costs  and  we   order accordingly.