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TMI Blog1915 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ge from the Bombay Government, each for a term of years, they were not, as the appellant contends, mere lessees bound to give up to their lessors at the end of each term the possession of the demised village; but were legally entitled, as each lease terminated, to have a new lease granted to the last lessee or his representative. Either title, if possessed by her, would enable her to succeed in this action. In order to arrive at a conclusion on the issue thus in dispute between the parties it is necessary to examine briefly the history of this district of Ahmedabad before its cession by the Gaikwar, with the concurrence of the Peshwa, to the British Government in the year 1817, and to examine more in detail the dealings of the Bombay Government after that date with a certain class of its inhabitants, Mahomedans in religion, said to have originally come from Delhi under the Great Mugul, and styled indifferently Casbatees and Kasbatis, and especially their dealings with the ancestors of the respondent, who belonged to that class, touching this village of Charodi. 3. The ancestor of the respondent in possession of this village at the time of this cession was one Jehangirbhai alias ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hings, that there were seventeen villages in the Viramgam Pargana, held for a considerable number of years by several families of Casbatees or Kasbatis under a peculiar kind of tenure; that their possession had been frequently interrupted, and had not therefore been sufficiently continuous to found prescriptive rights; that as soldiers of some property, family and character, they had acquired a partial influence in the affairs of the pargana, and often had obtained from the local managers leases of villages on favourable terms, in the granting of which nothing further had been intended than that the villages should remain in their temporary charge; that after the grant of the farm of Ahmedabad by the Peshwa to the Gaikwar, the Kasbatis had enjoyed the produce of some of these villages for twenty-five or thirty years on a revenue which was increased or lowered according to the pleasure of the local managers; that in 1804 they were dispossessed of these latter by one Babaji Appaji, a manager of the Peshwa, who demanded a higher jumma than the Kasbatis would consent to pay, but were restored to possession ten years later; that thus by a train of circumstances of such an undefined natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted in its entirety. One of its provisions of vital bearing on the present controversy was not adhered to. He had suggested that the Kasbatis should be secured in permanent possession of such of their seventeen villages as should be left to them. Whereas, on the 28th of May 1823, he wrote to the Collector of Ahmedabad informing him that he (Williamson) had concluded an arrangement with the Casbatees of Viramgam by Which they are to retain, daring the pleasure of the Government, nine of the villages found under their management when the pergunna fell into our possession. 7. He proceeded to point out that by this arrangement the interference of the Casbatees would be removed from eight of their villages, the produce of which was valued at 13,800 rupees, while that of those remaining with them was only valued at 5,300 rupees, but that the jumma in respect of these latter was so small, namely 1,925 rupees, that there would remain for their maintenance 3,375 rupees, a sum differing but little from that of 3,820 rupees, which, according to his calculation, was all that would have been available for their maintenance had they continued in possession of their seventeen villages. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only legal enforceable rights they could have, as against their new Sovereign, were those, and only those, which that new Sovereign, by agreement, expressed or implied, or by legislation, chose to confer upon them. Of course this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new Sovereign has recognised these anticession rights of the Kasbatis, and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights become relevant subjects for inquiry in this case. This principle is well established though it scarcely seems to have been kept steadily in view in the lower Courts in the present case. It is only necessary to refer to two authorities on the point, namely, the case of Secretary of State v. Kamachee Boye Sahaba (1859) 7 M.I.A. 476 and Cook v. Sprigg [1899] A.C. 572. 11. In the first this Board had to deal with the action of the East India Company in se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rests of the Kasbatis may have been quite erroneous. The Kasbatis may have been absolute owners of their villages, as the respondent contends, and yet the consideration of their ante cession rights is beside the point, save so far as it can be shown that the Bombay Government consented to their continuing to enjoy those rights under its own regime. 14. In their Lordships' view, putting aside legislation for the moment, the burden of proving that the Bombay Government did so consent to any, and if so, to what extent, rests, in this case, upon the respondent. The Kasbatis were not in a position in 1822 to reject Williamson's proposal, however they might have disliked it, or to stand upon their ancient rights Those rights had, for all the purposes of litigation, ceased to exist, and the only choice, in point of law, left to them was to accept his terms or be dispossessed. There is nothing, therefore, to support the contention that they never would have accepted Williamson's terms had the permanent possession of their villages not been promised to them. It may well be that the Bombay Government did not intend to disturb them, and even intended, if all things went well, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nferred upon the respondent's ancestors. And, no doubt, if the draftsmen of these instruments had even a rudimentary knowledge of their business, one would have expected that such an important matter as that would have been provided for, but, unfortunately for this contention, those experts have drawn these instruments in language so obscure that the instruments could scarcely have been more obscure had obscurity been aimed at, and have resolutely omitted from every patta but the first the ordinary provision to be found in every properly-drawn lease, that the lessee shall deliver up possession at the end of the term. Mr. De Gruyther, on behalf of the respondent, on his side not unnaturally contends that the inference to be drawn from the continued emission of such a provision is that the lessees had a legal right to continue in possession after the patta, or lease, had terminated. He puts forward, moreover, as their Lordships understood him, this additional contention, namely, that in 1822 a settlement was made with the ancestor of the respondent then in possession of this village of Charodi, in which the amount of the jumma was fixed, that the effect of such a settlement is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... talment on the day named, the Government are to take back the patta, and cause the revenue of the village to be collected by other hands, the lessees being responsible for any deficit in the year in which the patta is taken over, and that at the end of that particular year the Government would, if it so pleases, give the village to some person other than the lessees, who it was asserted shall not get it, but should be held liable for any loss which might accrue to the Government during the remainder of the term. 19. The seventeenth clause provides that if the Government should find that the lessees were spoiling the village, or did not abide by the clauses of the lease, the Government would send arbitrators to inquire into the matter, and if they should find that the village would be spoiled if allowed to remain in the hands of the lessees the patta would be taken back from them, and they would have to pay such a penalty as the Government might choose to impose. 20. The facts that the granting of a patta for seven years was part of the arrangement made with Mr. Williamson, and that the patta then granted contained a clause that the village should be given up to the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the direction of the Governor in Council to the Revenue Commissioner of this district, Mr. A. Blane, pointing out that the Casbatees did not appear from the former proceedings connected with the settlements previously made with them to have any valid title to a permanent continuance of the terms upon which they have hither to held their villages. and suggesting that the jumma should be increased by 5 per cent., that if they consented to this their term might be renewed for seven years, but that the Governor in Council desired that a distinct reservation should be inserted in the new lease endorsing the right of the Government to raise the rent if circumstances should show it to be expedient, and that it they refused to consent to this the villages should be retained under Government management, an allowance being made to the Kasbatis during pleasure to an amount equal to the profit which Mr. Williamson settled would have been left them. There could scarcely be an assertion more absolute than this of the power of the Government to alter the terms of any leases they might make to the Kasbatis as they themselves should deem fit, to give or withhold such leases at will, and to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, No. 10, inconsistent to some extent with the succeeding clause, No. 11, but evidently introduced to put an end for the future to all controversy touching the increase of the jumma. It provides that the village is given to the lessees on patta according to the settlement or agreement there-in-before set out, that when the lease expired the lessees should hold charge of all income and produce of the village, and should agree to the payment of the amount of the revenue which the Government might fix, and that if they failed to pay this the income should be taken charge of by the Government. The eleventh clause provided that the village was given on patta to the lessees on the agreement there-in-before set out, and that if they did not act accordingly to the agreement the patta should be void. 26. The existence of the statement that the patta was granted out of kind consideration for the maintenance of the lessees is due to this, that during the dispute about the increase of the rent, the two lessees and another person had presented a petition to the Revenue' Commissioner stating that they were in very indigent circumstances, that attachments had gone out against their villag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner reported upon this matter to the Government of Bombay, and the Governor in Council passed a resolution, dated the 27th November 1874, by which it was declared that the tenure of the Kasbatis was merely leasehold, and that their villages lapsed to the Government on failure of heirs. He accordingly directed that this village of Keela should be resumed by the Government. 29. This direction was, on the 5th of July 1877, approved of by the Secretary of State. But Fatumyia and Bapuji, unwilling to submit to this decision, instituted in the year 1878 a suit against the Secretary of State for India in Council claiming to be entitled to this village as heirs of the last holder, and they supported their claim by a document purporting to be a sanad granted by one of the Mogul Emperors some centuries earlier. The District Judge who heard the suit decided that this sanad was a forgery, and that the last holder, through whom the plaintiffs claimed, was a mere leaseholder, and dismissed the action with costs. The plaintiffs acquiesced in that decision. They never sought to question it in any Court of law. The question of the renewal of the leases of the Kasbati tenants was brought b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding that of Charodi, has alone been dealt with. 31. Their Lordships are of opinion that the just and reasonable inferences to be drawn from it when properly considered are, that not only has the respondent failed to discharge the burden which, as already stated, rests upon her, but that the Bombay Government never departed from the position in which they were left by Mr. Williamson's arrangement; that they never by an agreement, express or implied, conferred upon the respondent or any of her ancestors the proprietary rights in, or ownership of, the village of Charodi claimed by her; that they never recognised or admitted the existence of such rights, or of any rights analogous to them, in them or her; that the only rights in this village which the Government conferred upon her ancestors were those conferred by the leases which the Government from time to time, at their own will and pleasure, chose to grant to them (save such rights as are conferred by the creation of a tenancy from year to year in manner already mentioned); that this Government never conferred upon any of the lessees of the said village a legal right to insist, at the termination of his lease, upon a new le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay Government on the question in issue on this appeal. Act VI of 1862, for the reasons given in the abovementioned publication of Mr. Peile, does not apply to Kasbali lessees at all. They never were Talukdars of Ahmedabad in the true sense. They did not lose their ancient right of ownership of their land by taking leases, as did the Garasias, and therefore did not suffer the injustice which the Statute was designed to remedy. 35. The Statute of 1888 is entitled an Act to provide for the revenue administration of estates held by superior landlords in the districts of Ahmedabad, c. In the preamble it is recited that it is expedient to remove doubts as to the applicability of certain portions of the Bombay Land Revenue Code of 1879 to estates held by certain superior landlords in the above-mentioned districts, and to make special provision for the administration of the said estates and for the partition thereof. In the first section a Talukdar is defined to include a thakur, mehwassi, kasbati and naik. Section 23 provides that nothing in the Act shall be deemed to affect the validity of any agreement entered into before the passing of the Act by or with a Talukdar and still i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... underlying the former on the point as to the right of the respondent to occupy permanently is clearly revealed in the passage printed at page 496 of the Record in which the High Court deals with the lease of 1833:- There are no other provisions for forfeiture of the management. There is no provision for renewal of the patta, but it is to be inferred from the nature of the management and from the fact that the patta was for a term, that renewal was contemplated. This inference is supported by both previous and subsequent events; by previous events, because in 1823 permanent possession by the Kasbatis was contemplated; by subsequent events, because the renewal did, in fact, take place. 38. Their Lordships, dealing with the legal rights of the parties alone, are clearly of opinion that the decrees of both Courts are erroneous and should be reversed, that the main appeal, that of the Secretary of State, should be allowed, and the cross-appeal dismissed, and that judgment should be entered for the Secretary of State, dismissing the respondent's action. And they will humbly advise His Majesty accordingly. 39. The respondent must pay the costs here and below. - - TaxTM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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