Authored By : B.K. Mullick, Atkinson

B.K. Mullick, J.

1. This appeal arises out of a decree for rent obtained by the plaintiffs, the Midnapur Zamindar Co., who are ijaradars under the Raja of Dhalbhum. The decree was obtained in respect of a ghatwali tenure of which the lawful ghatwali was Braja Mohan Singh. As he was a minor an acting appointment in the office was made, and his guardian Ajambar Singh, filled the post during the period for which the present suit for rent was instituted. The plaintiffs having obtained a decree against the acting ghatwali Ajambar Singh, there were various proceedings in execution, but the case was eventually remanded by the District Judge to the lower Court for disposal after hearing the objections of the Deputy Commissioner representing Government, and of Braja Mohan Singh who had by then succeeded to the office of ghatwali on attaining majority. The execution Court decided, after hearing all the parties, that the tenure was not saleable in execution of it decree for arrears of rent. Against that decision there was an appeal to the District Judge, who also came to the same conclusion. The present appeal before us is against the decision of the District Judge.

2. The substantial question we have to decide is whether the decrees holder is competent to bring the ghatwali tenure to sale in execution of his decree, even-though the person who acted as ghatwali at the time when the arrears accrued is no longer acting in that office. The learned Vakil relies on section 208 of the Chota Nagpur Tenancy. Act, which proscribes that a tenure, unless the Commissioner of the Division objects, is liable to sale in execution of a decree for arrears of rent. The learned District Judge, however, finds that the ghatwali tenure before us is subject to the incident of non-sale ability in execution of a decree for arrears of rent, and relying on section 77 of the Chota Nagpur Tenancy Act, he holds that section 208 of the Act cannot be given full force and effect.

3. Now, although the materials before us for investigating the early history of the tenure are very scanty, we do find from a report submitted by an Assistant, Superintendent of Survey named Munshi Nandjee that the tenure was created by a former Raja of Dhalbhum, for the protection of the passes and for police duties, that in 1883 after disputes had arisen between the Raja on the one hand and the ghatwali on the other, a Survey was made by Government of all the ghatwali tenures of Pergannab Dhalbhum, and that on the 8th May 1885 a compromise was effected between the Raja, the ghatwali and the Bengal Government as represented by the Commissioner of the Chota Nagpur Division. It would appear from the evidence before us that although the Government had no proprietary interest in the tenure, their interest in the integrity and the devolution of the hinds has been recognized at least since 1637. That interest was further affirmed and defined by the above-mentioned compromise, and it was in clear terms agreed that the power of nominating the ghatwali vested in the Government, who were competent at any time to dismiss a ghatwali for default of duty and to put his successor in possession of the tenure. This power of nomination is the crucial point in the case, because once that is admitted, the law according to their Lordships of the Privy Council in Nilmoni Singh Deo v. Bakranath Singh  9 C. 187 at p. 208 : 9 I.A. 104 : 5 Shomo L.R. 68 : 4 Sar. P.C.J. 335 : 4 Ind. Dec. (N.S.) 777 seems clearly to direct that it is not open to the zamindar to sell the tenure in execution of a decree of rent. That decision has been followed by this Court in the case of Lakshmi Narain Mahto v. Satya Narain Chakravarty 36 Ind. Cas. 269 : 1 P.L.J. 197. In Nilmoni Singh's case  9 C. 187 at p. 208 : 9 I.A. 104 : 5 Shomo L.R. 68 : 4 Sar. P.C.J. 335 : 4 Ind. Dec. (N.S.) 777 their Lordships of the Privy Council deal with a ghatwali tenure in the district of Manbhum; but after noticing the cases of Raja Lelanund Singh Bahadoor v. Government of Bengal 6 M.I.A. 101 : 1 Sar. P.C.J. 505 : 1 Suth. P.C.J. 218 : E.R. 38, Rajah Leelanund Singh v. Doorgabutty Special Number Weekly Reporter 249, Benode Ram Sein v. Deputy Commissioner of the Sonthal Pergannahs 7 W.R. 173 and Rajah Nilmonee Singh v. Bukronath Singh 10 W.R. 255 all of which related to ghatwali tenures of other districts, their Lordships came to the conclusion that a ghatwali tenure is not saleable in execution of a decree for arrears of rent in cases where the right of nomination of the ghatwali rests not with the Raja but with Government. Stated broadly, the reason for the decision was that the purposes for which the tenure was created could, not otherwise be carried on. Following that decision, I think that it is quite clear that in the present case the right to sell the tenure does not lie in the decree-holder. It may be that this is a limitation upon the rights of the proprietor, but the proprietor 'himself in effect recognised the limitation by the compromise of 1885, and it does not appear to me that he or his successor-in-interest can now complain on the ground of hardship.

4. The appeal will, therefore, be dismissed with costs, hearing fee five gold mohurs.

Atkinson, J.

I concur.