Authored By : Reginald Roe, Saiyid Sharfuddin
Reginald Roe, J.
1. This is an appeal from the order of the Deputy Commissioner of the Santal Parganas, affirming an order, made by the Subordinate Judge of Jamtara, disallowing objections made by the appellant to the attachment and sale of his tenure in execution -of a decree for rent obtained by the Kumars of Hitampore in respect of the said tenure. In the Court of the Subordinate Judge and in that of the Deputy Commissioner the sole contest lay around the question, whether or not the tenure attached was one of the Birbhum ghatwalis. Both Courts were able to show conclusively that it was not one of the Birbhum ghatwalis. The Courts below, therefore, decided that it must be attached and sold in execution of the decree obtained by the Hitampore Estate. In appeal to this Court the contention that the tenure is one of the Birbhum ghatwalis is abandoned. Two points are taken in support of the appeal, first, that all ghatwalis, whether Birbhum ghatwalis or not, are exempt from sale in execution of decrees and, secondly, that part of the terms of a remand, made by the Calcutta High Court in connection with this same matter at an earlier stage, was that the lower Court should consider whether this particular ghatwali, if not a Birbhum ghatwali, is liable to sale in the circumstances "of the present case. The first contention obviously cannot be supported. It is certain that there are ghatwalis known as Khargpur ghatwalis, which can be sold by the landlord in execution of a decree for rent. The whole question has been discussed at very great length by Sir. Barnes Peacock in the case of Nilmoni Singh Deo v. Bakranath Singh 9 C. 187 (P.C.) : 9 I.A. 104 (P.C.) : 5 Shome L.R. 68 : 4 Sar. P.C.J. 335 : 4 Ind. Dec. (n.s.) 777. His Lordship in that case drew a line distinction between those ghatwals who were subject to service under Government and those ghatwals who were subject to service only under local Rajas. It was pointed out by His Lordship that it was impossible for a Civil Court to sell on any account whatever a tenure held in lieu of service to the administrative head of the district. It was also stated at page 206 of that volume that where the appointment has been made by a Raja there is no bar to a sale in execution being made by the Raja. It is clear that the contention that no ghatwali tenure can be sold in execution is not a sound contention. It remains, therefore, to deal with the question, whether this case should be remanded for further findings of fact upon the question whether this particular ghatwali is of the nature of the Khargpur ghatwalis or not. It is entirely unnecessary for us to waste the time of the parties and the time of the lower Court by any such remand. Paragraph 4 of the judgment of the learned Deputy Commissioner runs: "Exhibit 7 is an order issued by the Raja of Nagar appointing Balaram Mahto, ghatwal". From this it is obvious that the present appellants derive their appointment from the Raja. It is nowhere suggested that they derive anything at all from the Deputy Commissioner.
2. I would further draw attention to Regulation XLV of 1910, section 4 from which it will be observed that the only ghatwals over whom the Deputy Commissioner has jurisdiction are those who are subject to the provisions of the Bengal Ghatwali Lands Regulation, XXIX of 1814. I would also draw attention to the fact that in that same Regulation of 1814 the Deputy Commissioner has power to put up for sale for arrears of revenue such ghatwali lands. The analogy seems to me throughout to be perfect. Where the ghatwal is liable to the Deputy Commissioner and derives his appointment from the Deputy Commissioner, his lands can only be sold with the consent of the Deputy Commissioner. Where the ghatwal is appointed by the Raja and is not shown to be liable to render service to any body but the Raja, his ghatwali lands may be sold by the Raja. In this case the lands were rightly attached and are liable to be sold.
3. The appeal is dismissed with costs.
Saiyid Sharfuddin, J.
I agree.
