Das, J.I entirely agree with the decision of the learned Subordinate Judge. The arguments of the learned Vakil for the appellant are mainly, if not entirely, based on the recent decision of the Judicial Committee in the case of Satya Narain Singh v. Satya Niranjan Chakravarty AIR 1924 P.C. 5. Now, in that case the question turned upon the construction of a grant of a permanent ghatwalli tenure made to the predecessor-in-title of the appellant by Capt. Brown in 1776, and the only point of law established in that case is that the nature of the estate which was the subject-matter of the grant rested upon the true construction of the grant and "not upon the notions entertained about them in later generations." Their Lordships of the Judicial Committee construed the grant and referred to "the most significant clause in the grant": "when called by the Huzur you should be escorted by a body of archers and Barkandazes 307 in number, of whom the Sirdara will be 7 and archers and Barkandazes will be 300, and should appear before the Huzur." Referring to this clause, their Lordships said as follows:

2. Their Lordships are further unable to refer the obligation to furnish a force of 307 men to any ordinary police administration of a Bengal Zemindari. The force is precise and it is large: it is military rather than civil; it does not vary according to the needs of the moment, but is fixed at a standing number at all times, and attendance on the Huzur with the whole force on demand is clearly beyond the scope of mere constabulary duties. Effect must be given to these very special and express words, and although no forfeiture is stated in case of non-compliance with them, it is only possible to do so regarding them as descriptive of an obligatory service tenure, whether of the ordinary ghatwalli type or not, and as the condition on which the ghatwal holds the lands." In another place in their judgment, their Lordships made the following observations:--"The tenure-holder has to raise and maintain the force, not merely to pay for it. Whatever may be the other incidents, it is clear that these grants impose on him the duty of providing a specific armed force and of attending with it upon the competent Government Officers whenever this service is required of him. What can this be but a service tenure" And in summing up their conclusions with regard to the construction and effect of the patta of 1776 and the confirmatory sanad of 1734, they said as follows:

(3) The express obligation imposed on the grantees as an integral part of the grant, to support a specified number of Barkandazes, and with them to attend the Huzur when required, shows that the tenure is a service tenure and is ghatwalli in its nature.

(4) A tenure so granted is inalienable and indivisible.

3. I will now examine the grant in favour of the predecessor-in-title of the plaintiff to see whether the tenure at its inception was a service tenure and therefore inalienable. The grant was made by Mr. Chapman, the Agent of the East India Company, to Tekait Paran Singh, described as "the malik and mustajir of Gadi Ghoranji" on the 8th November, 1780. The document which has been produced by the plaintiff is addressed to "Mutsaddis of affairs of the present and future Chaudhuris and Kanoongoes of the District Kharagdiha," but in the margin occur these words in English, in the handwriting of Mr. Chapman, "Patta granted to Tekait Paran Singh, ghatwal of Ghoranji for the year 1188 Fasli, Jama Sika, Rs. 435-15-0." We may then accept Exhibit 2, which is the document produced by the plaintiff, as the patta granted to Tekait Paran Singh, though it was not expressly addressed to him. The opening words of the documents are as follows:--"Under orders of the Bengal Council, this Sauad is granted (letting out) Gadi Ghoranji appertaining to the said district, in Istimrari Mokarrari to Tekait Paran Singh, Malik and Mustajir, of the said Gadi (with effect from) 1188 fasli fixing Rs. 435-15 Sahwat (coins of) the present currency as the annual consolidated jama." Though the grant is of Gadi Ghoranji, there is express exception of "Chakran Jagirs." Most of the Clauses (and they are not many) impose duties which are ordinarily discharged by the Zemindars; but then occurs this clause upon which reliance is placed by the plaintiff-appellant." Also, besides paying Government revenue, he shall appoint Barkandazes and Digwars with one Sirdar as Chakars of Chakran lands, in order to guard the roads of the villages appertaining to the said Gadi, and see that the same are well guarded. Also if any murder, riot, theft, or highway robbery, etc., take place in their jurisdiction, they shall be treated as offenders against Government and be dismissed from their posts. Whenever the said Chakars shall be called for by the authorities, the Sirdars with his subordinates shall attend in person. If any one himself takes any ill-advised step or gives evil advice to others, in consequence of which the work of Government suffers, he shall be removed from his situation after enquiry and judgment, and he shall not be allowed to enter the said Gadi again."

4. In my opinion, there is all the difference in the word between the duties imposed on Paran Singh and those imposed on the grantee in the case to which I have referred. Here his sole duty consists in appointing Barkandazes and Digwars, and, it may be, paying for them, though I am not sure that the exclusion of the Chakran lands from the grant did not imply that these Barkandazes and Digwars were remunerated by grant of Chakran lands expressly made to them by the Government, and not by any wages paid by Paran Singh to them. These Chakran lands, as the document shows, were situate within the ambit of Gadi Ghoranji, and it may well be that they were settled by the former Maliks and Mustajirs of the Gadi with Barkandazes and Digwars on conditions of service. Now the earlier history of the Gadi shows that it was one of the 84 divisions called Gadis of Kharagdiha which originally formed part of the Zemindari of Siwar Muhammadabad, the property of Maharaja Mode Narain Deo. The Ghatwals recognized the Maharaja as the chief through whom they paid their small tribute to the ruler of the country, and they considered themselves as independent of his authority. It was recognized by the East India Company that the Ghatwals were a turbulent set of men worth winning by methods of conciliation, because of their influence of their country and their solidarity among themselves, and it was in pursuance of this policy, that, ignoring Maharaja Mode Narain, the East India Company entered into direct settlement with the Ghatwals of Kharagdiha. Now, I am not unmindful of what was said by the Judicial Committee in the case to which I have referred, namely, that where the instrument contains words of grant and purports to make a grant on behalf of and in the name of the East India Company, it must be so interpreted, and that this construction cannot be defeated merely because there may be ground for thinking that the grantee was already the holder of the lands under earlier grants. The tenure, in the present case, is undoubtedly a Government tenure, but the question remains, is it a service tenure I was referring to the earlier history of the Gadi to show that, prior to the date of the grant, the Tekait, referred to in the document as "the milk and mustajir of Gadi Ghoranji," was undoubtedly in the possession of a Zemindar, and it is not unreasonable to assume that he, or his predecessors-in-title made grants of lands to various persons on condition of guarding the roads of the villages and rendering other services usually rendered by village police. In entering into the settlement with the Tekait of Ghoranji the Government was careful to exclude the Chakran lands from the grant, and it would appear as if the Government took it out of the power of the Tekait to resume these Chakran lands and to put an end to the services rendered by the Digwars. If I am right in this view, then the estates known as Gadi Ghoranji were not even subjected to a pecuniary charge, and the only duty which was cast on the Tekait under the patta was to appoint these police officers. I will assume, however, that the Tekait was required to pay for the services of these police officers, and that the Gadi Ghoranji was subjected to a pecuniary charge for the wages payable to these police officers. Even then, there were no services to be rendered by the Tekait so that the personality or the appointment of the holder of the Gadi would be of no importance. In the case before the Judicial Committee, the grantee was required to go round the villages escorted by archers and Barkandazes and protect the villages. In the case before us, the duty is cast, not on the grantee, but on the Barkandazes and the Digwars to guard roads of the villages. In the case before the Judicial Committee, the grantee was required whenever called upon to appear before the Huzur with a force of 307 men. In the case before us, no duty is cast upon the grantee to appear before the ruling authority, but a duty is cast upon the Chakors to attend the authorities whenever required by them to do so. In short, there are no services of a personal nature to be rendered by Tekait Paran Singh under the Sanad of the 8th November, 1780. How can it then be suggested that the tenure was a service tenure and was ghatwalli in its nature

5. I will however assume that, though there were no services to be rendered by the Tekait, the fact that the grant imposed on him the duty of providing the village police was sufficient to impress the tenure with a ghatwalli character. It is conceded in the judgment of the Judicial Committee that such a tenure may be alienable by custom. It is also conceded that the incident of inalienability ceases to attach to the tenure if the Government releases or abolishes the services in some effective and lawful manner. I will first deal with the question of custom. My difficulty in dealing with this point is that the question was not discussed in the judgment of the Subordinate Judge. But the issue was clearly raised in the third paragraph of the written statement, and, as evidence of an unimpeachable character is in the record. I am clearly of opinion that I should express my views on this point. In the case of Kali Pershad v. Anund Ray (1888) 15 Cal. 471, the Judicial Committee pointed out that ghatwalli tenures are generally inalienable, but that evidence may be given to show that in a certain district they are by local custom subject to special incidents in this regard. Such evidence was forthcoming in that case and was to the effect that many transfers had taken place in Kharakpur without being questioned or questionable, provided that the Zemindar of Kharakpur expressly assented to and accepted the transferee as his ghatwal. In this case we are dealing, not with a Kharakpur ghatwalli, but with Kharagdiha ghatwalli and we have conclusive evidence that numerous transfers have taken place in Kharagdiha without being questioned either by the holders of the gadis or by the Government. Exhibit DD is the letter addressed by Capt. Wilkinson to the Government on the 3rd October, 1834, on the serious situation created in Kharagdiha, by reason of the chronic state of indebtedness of the Kharagdiha Ghatwallis. Capt. Wilkinson pointed out that Kharagdiha formerly consisted of 84 divisions designated gadis of which there were 51 in the agency, the rest having been transferred to the other Zillas. Dealing with 28 of the gadis which were permanently settled with the ghatwals, he said as follows:--"One of the gadis Lataki was sold in auction, and the heirs of the old proprietors subsist on charity collected from relations. One Kagall was sold privately, and the family of the proprietor are in the same condition as the Lataki family. Of eight gadis, namely, Chakmanjo, Khurchutta, Deopur, Doetan, Domchanch, Ghoranji, Jurria, Beria portions have been sold in different times by auction in satisfaction of decrees and by Private sale. The portions which remain in the names of the ghatwals or Zemindars are pledged to Mahajans, and the Zemindars or ghatwals are in the greatest distress. The produce of the portion pledged will not cover the interest accruing on the last bonds executed. Eighteen gadis and the names are given "are still in the possession of the heirs of the original ghatwals. They are all much involved in debt for the payment of which nearly the whole of their lands have been pledged to Mahajans and their condition is little better than those mentioned above." After pointing out that, if the Mahajans were allowed to recover their debts under Reg. 15 of 1793, 1 of 1798 or 17 of 1806, they must become proprietors in the course of three or four years of the whole landed property of Kharagdiha, he asked for special permission to be allowed "to investigate the accounts with the parties without any attention to documents which have been intermediately executed." He suggested that there should be no appeal from his decision to the Sudder Dewani Adalat. Mr. Sifton points out in his final report on the Survey and Settlement operations in the district of Hazaribagh that the proposals of Captain Wilkinson received the immediate approval of the Government, and an order was passed u/s 5 of Reg. 13 of 1833, declaring that no appeal against the agents order in these matters should lie to the Suddar Dewani Adalat. Finally, the Chota Nagpur Encumbered Estates Act was passed in 1876, extending the protection of the State to all Encumbered Estates in Chota Nagpur. Mr. Sifton points out that there are at present only 12 gadis which are still the property of the original Ghatwali families and 12 others in which the original families still retain a portion of their property.

6. Two questions fall to be considered first, what is the effect of the numerous transactions which have taken place as a result of which the estates or portions of the estates belonging to the Kharagdiha ghatwals have passed into the hands of strangers Secondly, what is the effect of the legislation, and particularly of the Encumbered Estates Act by which the protection of the State has been given to the encumbered proprietors of Chota Nagpur, including the Kharagdiha ghatwals To take the first question, it is remarkable that there was no effective protest by the Government against the power of alienation exercised by the ghatwals. It is not that the Government did not appreciate the fact that it was necessary to maintain the ghatwals in the possession of their estates. Capt. Wilkinson, in his letter to the Government stated the position in these words:

The consequence of the Tekaits being deprived of their lands would, I am convinced, be disturbances of nature something similar to those in Nagpur and Birbhum for the Tekaits, although ignorant, have great influence over the inhabitants of the country who are chiefly men of their own and other low castes impressed with an idea that they have been cheated out of their lands by the Mahajans assisted by their own Karpardazes who have not unfrequently been near relations of the Mahajans." The Government took effective means for the protection of the Tekaits, but it never struck any one to raise the question whether these tenures were at all alienable. In my opinion, the evidence establishes that there is a well-recognised custom in Kharagdiha under which these tenures have become alienable.

7. The other question is equally important. If these gadis were originally inalienable, the ghatwals did not stand in need of any State protection. The Chota Nagpur Encumbered Estates Act of 1876 was passed, as the preamble shows, "to provide for the relief of holders of land in Chota Nagpur who may be in debt, and whose immovable property may be subject to mortgages, charges and liens." Now this Act is the final effort on the part of the Government in the process of giving relief to "the holders of land in Chota Nagpur" which began with the action taken on the letter of Captain Wilkinson in 1834. It is not necessary to go through the provisions of the Act, it is sufficient to point out that powers of a very sweeping kind are given to the executive officers to protect the encumbered holders of land in Chota Nagpur against the claims of creditors. Now there is no doubt that the ghatwals of Kharagdiha come within the scope of the statute, and that the Act has been applied in their favour again and again. Now, if these estates were originally inalienable, how is it that the Legislature proceeds to devise means for the protection of those estates against the claims of the creditors I regard the statute of 1876 as a legislative interpretation of the sanads under which the ghatwals of Kharagdiha held lands.

8. The last question is whether the Government has released or abolished the services renderable by the ghatwals in some effective and lawful manner. As I have pointed out, the only obligation imposed on the Tekait of Ghoranji under the Sanad of the 8th November, 1780, was to appoint the Barkandazes and the Digwars, and, it may be, to pay for their services. It will be found from Mr. Siftons Final Report on the Survey and Settlement Operations in the District of Hazaribagh that the policing of the district was kept up by the ghatwals until 1834. In 1834, Government began to establish police stations, and in 1862, Government took over the entire management of the police under Act V of 1861 and abolished the police powers of the Zemindars. The Government then took up the question of the proper re-organisation of the rural police of Digwars, and in 1877 Mr. Davis, the Superintendent of Police, presented a scheme for re-organisation of the Digwari system throughout the district by means of Digwars paid by cash wages. He found that 938 Digwars were actually being maintained by the Zemindars, his scheme reduced the number of Digwars to 450 to be distributed over 109 road posts for patrol duty, and he calculated the cost of the establishment to be Rs. 2,220 per month. As the Zemindars had alienated portions of their estates to Digwars who would now be relieved of their duties by the substitution of paid road patrols, it was decided that the Zemindars could not be responsible for the whole of this cost, but that it should be realised between the Zemindars and the Digwars Jagirdars who retained their service lands without being required to perform any services. In the following year Act VIII (B.C.) of 1878 was passed empowering the Deputy Commissioner to fix the number of patrols necessary to protect the different roads and passes, and to realise their costs from the Zemindars and under tenure-holders. Subsequent Acts dealing with the Rural police of Chota Nagpur are Act V (B.C.) of 1887 and Act I of 1914 (Behar and Orissa). It is pointed out by Mr. Sifton that the Tekaits of Kharagdiha are required to contribute altogether Rs. 5,280 for this purpose.

9. Now what is the effect of these subsequent events on the character of the tenure in the hands of the Tekait of Ghoranji Clearly the Government has released the services in an effective and lawful manner if the obligation to appoint Barkandazes and Digwars and to pay their wages could be called a service, and, in lieu thereof, has subjected his estate to a pecuniary charge. It was insisted by the learned Vakil for the appellant that the assessment by the Government of the ghatwals under Act VIII of 1878 is a continuation of their services in another form. But the change in form in my opinion is vital to the enquiry, for it is obvious that the personality or the appointment of the holder is no longer of any importance. Payment of rent or revenue is a form of service, but a tenure where no other service is imposed than the payment of rent or revenue cannot be called a service tenure. In my opinion, if the tenure in question was ever a service tenure, the Government released or abolished the services by Act VIII of 1878, and it can no longer be regarded as a service tenure. I hold that the plaintiff is not entitled to succeed is the action on the ground that the tenure was inalienable.

10. The plaintiffs suit must also fail on another ground namely that he omitted to ask for a consequential relief although he was able to seek that relief in this action. The plaintiffs suit is a suit for declaration of title. No objection can be taken to the scope of the suit if, as the plaintiff asserts, he is still in possession of fine disputed properties. The object of the suit is in substance to obtain a declaration that the conveyance of the disputed properties by his father, Tekait, Hemraj Singh to Nawab Ali Khan, represented in this action by the defendants, so far back as the 14th December, 1856, did not operate to confer any title on Nawab Ali Khan. Hemraj Singh died in 1857 and was succeeded in the Gadi by his son, the present plaintiff who however has died during the pendency of the appeal is this Court. It appears that the Court of Wards took possession of Gadi Ghoranji on behalf of the plaintiff and refused to recognise Nawab Ali Khan as the purchaser of the villages. Nawab Ali Khan thereupon instituted a suit for the purpose of having the dead of sale executed by Hemraj Singh established as against his son. It was open to the Court of Wards, which was then acting as the guardian of the present plaintiff, to take the plea that the tenure being ghatwalli, was inalienable. But the only defence that was put forward was that no such kabala had been executed by Heraraj Singh. The Calcutta High Court found in favour of the kabala and pronounced judgment in favour of Nawab Ali Khan (see Exhibit K-9, Part 3, page 34). Nawab Ali Khan then applied to have his name registered in the Government books as the proprietor of the purchased villages. The application was rejected on the 18th April, 1868, by the Deputy Commissioner on the ground that the gadi was a service tenure and was inalienable. The order was maintained on appeal by the Commissioner on the 30th March, 1869. When the Land Registration Act came into operation, the plaintiff applied to have his name registered in the Land Registration Department in respect of all the villages comprised in the gadi. Nawab Ali Khan objected. The objection was allowed, and the name of Nawab Ali Khan was recorded in respect of the villages which were the subject-matter of the conveyance. In dealing with this point, the Deputy Collector said as follows:

The Government has now decided by their letter No. 3002, dated the 5th December, 1878, that the names of bona fide occupants of ghatwali tenures are to be registered, but it will not affect the right of Government. There is no doubt that the applicant is in possession for a long time by right of purchase. I would therefore on the authority of the Government order quoted above register the applicants name as a joint sharer." In the record-of-rights, finally published on the 23rd February, 1913, the names of the defendants were recorded as proprietors of the disputed villages. The Subordinate Judge on a consideration of all the evidence came to the conclusion that the plaintiff was not in possession of the disputed villages and that the suit was barred by the provisions of Section 42 of the Specific Relief Act.

11. Before dealing with the point, it is as well to dispose of an objection taken by the Stamp Reporter. He took the view that plaintiff could not avoid paying the proper Court-fee as in a suit for declaration of title and for possession by casting his reliefs in a declaratory form. With this view I do not agree. The question of Court-fee must be decided on the plaint; and though it is open to the Court to say that the plaintiff has really asked for a consequential relief though he has tried to conceal it by casting the reliefs in a particular form it is not open to the Court to say that the plaintiff should have asked for a consequential relief and should have paid the proper fee as in such a suit. Here Here the plaintiff insists that it is not necessary for him to ask for a consequential relief. Although he takes a risk in so insisting in that he is liable to have his suit dismissed u/s 42 of the Specific Relief Act if the Court ultimately comes to the conclusion that it was open to him to ask for a consequential relief, he is clearly entitled to have the case made by him in the plaint tried by the Courts. I hold that the plaintiff cannot be called upon to pay the fee as in a suit for a declaration of title and consequential relief.

12. Coming now to the merits, there is no doubt whatever that the plaintiff is not in possession of the disputed properties, and that the Court will not make a declaration in his favour, since the plaintiff, being able to seek further relief than a mere declaration of title omitted to do so. The learned Vakil for the appellant accepts the finding of fact of the Court below so far as the finding can be confined to the tenanted portions of the villages, but he insists that so far as the jungle lands and minerals are concerned, they cannot be in the actual possession of the defendants, and must be deemed to be in his possession assuming as this argument must assume that he has a good and valid title to the villages. The argument is founded upon the well-known principle that a person who has got possession by wrong cannot have recourse to the doctrine of constructive possession in his favour. Now possession, in the sense in which that term is used in jurisprudence, must be accompanied by an intention to possess, an animus possidendi. Now it cannot be said of wrong-doer that there is any intention to possess that of which he has not a definite physical control. But of that of which he has a definite physical control, he is clearly in possession, provided the animus possidendi is established. I think this is at the bottom of the rule which lays down that a wrong-doer cannot have recourse to the doctrine of constructive possession. But let us go a step further. Supposing a person without title acquires possession of a part of the land and then proceeds to mark out the area of the entire land which he intends to possess. Clearly he has shown an intention to possess the entire area, and he will be deemed to be in possession of the entire area, though he has a definite physical control only over a portion. I think that it is more correct to say that, in the absence of title, the law will raise from definite physical control of part of land a presumption of possession of that, neither more nor less, which the possessor has shown a clear and unambiguous intention to possess.

13. But here the defendants were in no sense wrong-doers. They were by a document which purported to convey in whatever title the vendor had in the villages conveyed. There was no dispute as to the boundaries of the villages and the position is the same as if the defendants had marked out the entire area conveyed to them. It may be that the conveyance did not confer any title on them but they were not aware of any defect in their title and there was clearly an intention to possess the entire area conveyed to them in the right of the vendor. In my opinion, the defendants were just as much in possession of the jungles and the minerals as of the tenanted portions of the villages. I agree with the Subordinate Judge that the suit is barred by the provision of Section 42 of the Specific Relief Act.

14. The appeal must be dismissed with costs.

Ross, J.

15. I agree.