Fazl Ali, J.

1. This is an appeal from a judgment and decree of the H. C. of Judicature at Patna, affirming a judgment and decree of the Sub-ordinate judge of Monghyr in a title suit brought by the pltf. resp.

2. The pltf. the Maharaja of Gidhaur, who has succeeded in both the Cts. below is the proprietor of an impartible estate known as Gidhaur raj in the district of Monghyr. The ancestors of the defts. 1st party originally held a 4 annas share in a ghatwali tenure known as Mahal Dumri Nisf Katauna T. No. 325, and Sub-sequently by private partition they were allotted mouza Dumri with its 47 tolas which are detailed in Sch. I of the plaint. In execution of d mtge. decree obtained by one Chethru Rai against the ancestors of defts. 1st party, their interest, to which reference has been made, was purchased by the Maharaja of Gidhaur in the name of one of his employees, and the latter took delivery of possession of the property on 19-4-1904. On 13-8-1903, the ancestors of the defts. 1st party filed an appln. for setting aside the sale which was dismissed by the executing Ct. and the appeal from the order of the executing Ct. was dismissed by the H. C. as well as by the P. C. After certain disputes in the criminal Cts. the defts. second party alleging themselves to be the lessees of the defts. first party, obtained a mining license in 1937 from the Sub-divisional officer of Jamui, and the Dist. Mag. apprehending a breach of the peace, started proceedings u/s. 144, Cr. P. C., which ended in favour of the defts. first and second parties and against the pltf.

3. The pltfs case is that, emboldened by the order in the proceedings u/s. 144, the defts, started working mines in the tolas mentioned in Sch. II of the plaint and extracted a considerable quantity of mica and hence he was compelled to institute the present suit. In this suit, after reciting the facts to which reference has been made, he prayed for a declaration of the Sub-soil rights with regard to the entire Mahal Dumri and for recovery of possession of the mtge. lands situated in, the totals specified in Sch. II of the plaint. He also prayed for mesne profits and a permanent injunction restraining the defts. first and second parties from extracting mica or other underground minerals from the lands mentioned in Sch. II of the plaint. The grounds on which these reliefs were Claimed are summarized in para, 12 of the plaint in these words:

"That the pltf. submits that he being the 16 annas proprietor at Dumri Nisf Katauna has got an indefeasible right and title to all the underground mineral insluding mica situate within the said talukas. The pltf. further submits that all the titles and interest in the said 4 annas mokrari shares of the ancestors of the deft. 1st party having been acquired by pltfs. ancestor by auction purchase in 1903, the deft. 1st party have no sort of right and interests in the mica and other underground minerals nor the deft. 2nd party have derived any lawful right under leases alleged to have been granted in their favour by deft. 1st party, the pltf. in law is entitled to get a declaration of his title and possession with respect to all the underground right insluding mica........."

4. The suit was contested by defts. No 1 to 11 (defts. 1st party), but as the trial judge has pointed out, the real deft. was deft. 1, father of the applt. The case of this deft. was that the four annas interest in village Dumri was a ghatwali tenure granted to the ancestors of the defts. first party by Muhammadan rulers to guard the hill passes in the taluka, and the grant under which they held was affd. Subsequently by Captain Browne, a representative of the East India Co. The deft. 1 further contended that the mineral and Sub-soil rights were vested in him as the holder of the ghatwali tenure, and that the pltf. had acquired no right by his auction-purchase in 1903 inasmuch as the property in suit being Govt. ghatwali tenure was inalienable and consequently the auction purchase was invalid. Lastly, it was contended that this deft. and his ancestors had been exercising rights of possession over the mines and minerals for more than 12 years prior to the suit in assertion of their ghatwali right and to the knowledge of the pltf. and his ancestors and had thus acquired an indefeasible right by adverse possession to the mines and minerals in suit, especially those in the lands specified in Sch. II of the plaint.

5. The Sub-ordinate Judge decreed the suit, holding among other things that the disputed tenure was a zamindary ghatwali tenure, that it was not inalienable, that the pltf. had been in possession of the property since he purchased it in 1903 until the order of the Dist. Mag. made in 1938, that the pltf. as the proprietor of the Mahal was entitled to the mineral and Sub-soil rights and that under the mtge-sale only the surface right had passed to the pltf. The findings of the Sub-ordinate judge were Sub-stantially upheld on appeal by the H. C. with this modification that, while agreeing with the Sub-ordinate judge that the Sub-soil rights remained with the proprietor, the H. C. also held that even if the deft. 1 was assumed to have had the Sub-soil rights, those rights passed at the mtge-sale of 1903 and therefore in any event the pltf. was the real owner of the Sub-soil. On the plea of adverse possession raised in defence, the finding of the H. C. was that there was no Clear evidence that any mine was worked on behalf of the lessees of deft. 1 and that at the utmost the evidence adduced in the case showed that there had been some isolated acts of possession during recent years, probably since 1935 onwards, and therefore the plea could not be upheld.

6. The two main points urged on behalf of the applt. in this appeal are: (1) that the finding of the Cts. below that the ghatwali tenure held by the defts. first party was a zamindary ghatwali and not a Govt. ghatwali, could not be sustained and that in fact it was a Govt. ghatwali and therefore the property was inalienable and no title passed to the pltf; and (2) that in any event, the pltfs suit was barred by limitation under Arts. 142 and 144, Limitation Act.

7. The first point does not appear to us to be free from difficulty, and since its determination depends upon the proper construction of several old documents, we heard the parties at considerable length, notwithstanding the fact that the Cts. below have concurrently found that the tenure in question is not a Govt ghatwali. Before dealing with the merits of the controversy between the parties, it is necessary to understand what is meant by a "ghatwal" and what is a ghatwali tenure, and for the purpose of correctly apprehending what these expressions stand for, it is sufficient in our opinion to quote the following passage from the decision of the Patna H. C. in Sonabati Kumari v. Kirtyanand Singh, 14 Pat. 70 in which the Subject of ghatwali tenures has been very elaborately dismissed :

"Literally a ghatwal means a guard of the passes and the term ghatwali tenure was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredations of lawless hill tribes. These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur and the Santal Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different placed. In some cases they were owners of large estates, some of these estates being more or less of the nature of semi military colonies. . . . In some cases the ghatwalis were created directly by the ruling power, while in other cases they were created by the landlords or zamindars for the purpose of protecting their zamindary and tenantry and to enable them to have a small force at their command and to discharge the obligations they owed to the ruling power. Sometimes the owners of large ghatwali estates Sub-divided and re-granted the lands to other tenants who besides paying small rents held their lands on condition of rendering certain quasi police and military services and providing a specified number of armed men to fulfil the requirements of the Govt. or of the zamindar as the case might be."

A Govt. ghatwali is thus a tenure created by the ruling power in favour of a person who is required to render ghatwali services to it, whereas a zamindary ghatwali is a tenure created by a zamindar for ghatwali services to be rendered to him. It is quite plain that the reason why the applt. is anxious to establish that the tenancy is a Govt. ghatwali is that and Govt. ghatwali has been uniformly held to be inalienable. On the other hand, a zamindary ghatwali may be alienated with the consent of the zamindar, and, where local custom permits, even without his consent. From the reports of cases relating to zamindary ghatwalis, it appears that by the passage of time the consent of the zamindar has ceased to be a matter of much significance, and is generally presumed when it is found that the alienation has been made without any objection from the zamindar. As to the extent of the power of alienation, the following observations of the P. C. inKali Prasad v. Ananda,15 I. A. 18 are pertinent :

"When once it is established that the ghatwal had the power of alienation, as before stated that power forms an integral portion of his right and interest in the ghatwali, and there is no evidence whatever to limit it to an alienation for his own life and no longer."

8. In order to determine the true character of a ghatwali tenure, it is usually necessary to refer to the grant by which the tenure was created.In the present case, the applt. relies upon Ex. C (1), which is a ghatwali sanad granted in 1776 to the ancestors of the applt. and which runs as follows :

"Know ye the Chaudhuris, kanungoes, zamindars and mutasaddis of mauza Dumri Ghat (illegible) pargana Gidhaur, Sarkar Monghyr comprised in the province of Behar.

The perquisites of ghatwari in all the rahdaris in mauza aforesaid, have now been granted to Kunji Singh. Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the said mauza, in accordance with what has been in vogue from old time, with effect from the commencement of 1184 fasli. It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris according to old custom. It will be the duty of the said ghatwars to be ever ready in discharging the duties of the post and guarding the ghata and chaukis of their elaqa by making rounds day and night. If murder, mischief, theft, highway robbery and sudden night attack be committed in their elaqa, they will be held liable therefor and will be dismissed from their post. Treat this as peremptory and act according to what is written.

Dated the 5th Ziqada of the 18th year of the August reign corresponding to 1184 Fasli."

This sanad was granted by Captain Browne, who was deputed by the East India Co. to restore order in a tract known as Jungle Terai, a vast waste and hilly country as its name signifies, lying to the south of Bhagalpur and west of Rajamahal Hills. This document was construed by a Bench of the Patna H. C. inFulbati Kumari v. Maheshwari Prasad,A. I. R. (10) 1923 Pat. 453 [LQ/PatHC/1923/121] and as has been pointed out by Dawson-Miller C. J. in that case :

"It is not a grant of land but an authority to the persons named to collect as formerly ghatwari or ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect."

When we compare this sanad with other ghatwali sanads granted by Captain Browne, some of which are found discussed in reported cases, the contrast becomes very marked. In some of the other documents-for example in the document which was the Subject of the decision of the P. C. in Satya Narain Singh v. Niranjan Chakravarti, 51 I. A. 37 and of the Patna H. C. in Rani Sonabati Kumari v. Kirtyanand Singh,14 Pat. 7 0 the grant was in respect of a very extensive area of land and there were also words used to indicate that the services were to be rendered directly to the ruling power. The mere fact, therefore, that the sanad in this case was granted by Captain Browne cannot be held to be decisive of the nature of the tenure, because it seems to have been part of the duties assigned to him to confirm and recognise old titles. As was pointed out by Dawson. Miller C. J., the sanad should be read along with the record of certain proceedings before the Dewani Adalat of Ramgarh, which show that a tenancy comprising 8 annas in mauza Dumri was granted by the zamindar of Gidhaur to 2 persons, one of whom was the ghatwal mentioned in Captain Brownes sanad, with the sanction of Captain Browne. In the present case, a document of 1798, which was the proceeding of the original Ct. and which was before the learned judges who decided Fulbatis case has not been produced, but we have before us a judgment dated 18-3-l799 of the appellate Ct. in the same proceeding. This judgment recites that the case of the ghatwals was that they had been for 3 generations in possession of half of village Dumri, but in the year l187 fasli (l780 A. D.) the zamindar of Gidhaur wanted to raise "revenue" or rent but they refused to accept a new patta or kabuliyat at an enhanced rent. Subsequently, the Ct. ordered the zamindar to grant a patta, but the zamindar did not do so and forcibly dispossessed the ghatwals. They thereupon prayed that the zamindar may be ordered to grant them a patta and receive the kabuliyat at the old rent. The appellate Ct., to which the zamindar had appealed, upheld the decree of the first Ct. ordering the patta to be granted. This document shows firstly that the ghatwali tenure in respect of half of Dumri had been in existence for 3 generations prior to 1789, i. e., it must have come into existence long before Captain Brownes sanad, and secondly that it was held under the zamindar; otherwise, it was unnecessary that the zamindar should grant a patta and the ghatwal should execute a kabuliyat in his favour.

9. We have also before us a document (Ex. 1) which is a report of one Khadim Muhammad Ataullah, an employee of the East India Co. incorporating certain statements made by the then zamindars of Gidhaur showing that they had been in possession of the zamindary for nearly 700 years and that "the milkiat zamindari, Chaudhrai and Kanungoi of the pargana. ... . had all along been in their possession. This document shows that Gidhaur was an ancient zamindary and the zamindar also performed the functions of chaudhrai and kanungoi. The last mentioned point is of some significance, because the sanad of Captain Browne was addressed to chaudhris, kanungos, etc.

10. In the case of Fulbati Kumari(supra), to which reference has been made, there was an extract quoted from the Bengal District Gazetteer, Vol. XVII at p. 168, which runs as follows :

"About 1774 the lawless state of this tract led the British to place it in charge of Captain James Browne, who settled the estates with the ghatwals with two exceptions. These two exceptions were Dumri and Mahesri which were settled directly with the proprietors, the story being that the ghatwal tenure holders fled at the approach of Captain Browne their reputation as dacoits and brigands being too strong for them to face a Govt. officer without fear of the consequences. In the case of Dumri however, the Ghatwals finding that in their absence a settlement had been made of their tenure, returned and obtained a squad settling it with them under the Raja of Gidhaur. Of the estates settled with ghatwals only two are now held by their descendants, viz., Tilwa and Kewal. The others have passed into the hands of the Maharaja of Gidhaur, Chetru Rai, Akleswar Prasad and others of Rohini."

The statement in the District Gazetteer is not necessarily conclusive, but the Gazetteer is an official document of some value, as it is compiled by experienced officials with great care after obtaining the facts from official records. As Dawson-Miller C. J. has pointed out in Fulbatis (supra) case, there are a few inaccuracies in the latter part of the statement quoted above, but so far as the earlier part of it is concerned, it seems to derive considerable support from the documents to which reference has been made.

11. The counsel for the applt. greatly reld. on the fact that Dumri ghatwali is mentioned in captain Brownes "India Tracts as one of the ghatwalis placed under the Colr. of Jungle Terrai districts. It appears that this point was not raised before any of the Cts, below, nor was Captain Brownes treatise placed before them. There is thus considerable force in the objection raised on behalf of the resp. that he has not had sufficient opportunity to study the matter and place relevant materials before this Ct. to enable it to determine what meaning and value should be attached to Captain Brownes statement. But apart from this objection, it seems to us on the evidence as it stands, that the inference sought to be drawn from Captain Brownes statement is not fully justified for the following reasons : 1. The mere fact that the ghatwali was shown to be under the Colr, cannot alter the character of the ghatwali, i. e., if it was a zamindary ghatwali, it could not become a Govt. ghatwali merely became it was stated to be under the Colr. 2. As Colr. Of Jungle Terrai districts, Captain Browne appears to have had control not only over the ghatwals but also over the zamindars within the area administered by him. 3. The observations made by Captain Browne with regard to the Jungle Terrai ghatwals and their relation to the zamindar hardly support the view urged on behalf of the applt.

12. Referring to the Jungle lerrai ghatwalis, Captain Browne states in his book as follows:

"All the Jungle Terrai gautwalls, were formerly subject in the several Rajahs, to whose territories their Gautwallies belonged; they paid a slight tribute in token of feodal obedience, and were bound to oppose all invasions (principally from the south) to attend their Rajahs when summoned, with all their followers in arms, and to be responsible for every violence and irregularity committed in their respective boundaries: their followers are still bound by the same feodal ties to them, and have lands for feodal services; nothing can be conceived more absolute than the authority of these chiefs over their vassals; the fear of death even, when seized on in war, is not sufficient to force from them the discovery of any secret respecting their chief, his family, or property."

Again, Captain Brownes deseription of the zamindar of Gidhaur is to the following effect:

"The Raj of Guidore was formerly of great extent, but the conquests made from it by the Rajah of Bierboom and Comgar Cawn, and the independency which these wars gave the Gautwalls an opportunity of assuming, have reduced the present Rajahs Gopal Singh and Durrup Singh, to follow an ebb. that they can scarcely recover sufficient consequence to be of any political weight whatever."

On the whole, it appears that the ghatwals of Dumri were hardly men of such consequence as to break off from the zamindar and set themselves up as independent chiefs. ,

13. There are two other items of evidence which seem to have an important bearing on the question. In the first place, the applts tenure was inCluded within the Gidhdur zamindary in the Permanent Settlement, and secondly, it is shown in the Record of Rights as istemrari mokrari tenure under the zamindar of Gidhaur. In the case ofRajah Lelanund Singh v. Bengal Govt.,6 M. I. A. 101, where the Govt. set up a Claim to resume the ghatwali in the zamindary of Khurukpore for the purpose of revenue assessment the Claim was negatived by the P. C. and one fitfully grounds upon which the decision was based was that the ghatwali lands were part of the zamindary and were inCluded in the Permanent Settlement of the zamindar and were covered by the jama assessed on that zamindary. There can be no doubt thatprima faciethe fact that the tenure was inCluded in the Permanent Settlement of the zamindar and under that Settlement the ghatwal had to pay rent to the zamindar raises a presumption that the ghatwali was in some way connected with the zamindar, but it must be recognized that the permanent settlement of the land

"would not affect the nature of the tenancy upon which the lands were held; nor can it convert the services which were public into private services under the zamindar."

(vide Raja Nilmoni Singh v. Bakranath Singh,9 I. A. 104). There are several reported cases which furnish instances in which the properties of persons who were Govt. ghatwals were inCluded in the zamindary of other persons, but where no Clear evidence is forthcoming as to the true character of the ghatwali, the fact that the tenure is inCluded within a zamindary and is covered by the jama assessed upon it should turn the scale in favour of the party who alleges that it is a tenure which is dependent upon the zamindary. In this case, the presumption arising under the Permanent Settlement is reinforced by the entry in the Record of Rights which shows that the tenure in question is istemrari mokrari held under the zamindar.

14. The learned counsel for the applt. reld. upon Exs. N and N (1) and certain rent receipts granted by the zamindar to show the applt.s independent title, but, in our opinion, these documents do not help him much. Ex. N is a notice issued to an ancestor of the applt, in 1859 by an official whose signature on the document is not legible. It refers to a report of the Sub-inspector of thana Chakai stating that "the sautars (bad characters) are in their places of residence and no riots or disturbances are taking place," and directs the ghatwali to prepare a list of the sautars of his ilaqa and file it before the officer-in- charge of the thana. Ex. N-1 is a similar notice, but it is incomplete and bears no indication as to who issued it. It recites a report of a police Sub-inspector stating that owing to failure of crops there were burglaries and thefts and recommends that the zamindars of the ilaqa should be directed to "look after the occurrences and keep eyes over the bad characters and mischief makers so that occurrences may be stopped." These documents do not necessarily show that the applt. is a Govt. ghatwal. It was not unusual in old days to issue notices like those refd. to, to the zamindars of the ilaqa, as Ex. N-1 itself shows, and the mere fact that the person to whom the notice was issued was described as a ghatwal does not show that he was addressed in the capacity of a Govt, ghatwal and not as a zamindari ghatwal.

15. The next item of evidence upon which the applt. tried to rely consists of certain rent receipts and road cess receipts, but these also do not help him, seeing that they contain, among other things, a statement that the tenure with regard to which the receipts were granted, appertained to the proprietary zamindary of Gidhaur.

16. This brief review of the evidence is sufficient to show that the applt. has not been able by Clear and conclusive evidence to rebut the presumption arising from the Record of Rights and the record of the Permanent Settlement, and he has failed to establish his Claim that the tenure in question is Govt. ghatwali. It may be incidentally mentioned that in the mtge. suit which preceded this litigation, there was no allegation by way of defence that the ghatwali was not alienable, and though the point was raised in the execution proceedings it was decided against the applt. by the Ct. of first instance and was abandoned on appeal. In these circumstances, we see no reason to disturb the concurrent findings of the Cts. below which have dealt with the matter with great care.

17. Passing now to the second point raised in this appeal, we find that there are concurrent findings of both the Cts. below against the defts. on the plea of adverse possession. In arriving at this finding, the Cts. below have fully discussed the evidence and given cogent reasons in support of their conclusions. This Ct. is usually reluctant to reinvestigate matters which have been fully investigated by the Cts. below and on which there are concurrent findings. In the present case, the applt. has failed to show to us any exceptional circumstances to induce us to depart from the sound and well-established practice and in this view the findings of the Cts. below must be accepted.

18. It was, however, contended that in any event the pltfs suit is barred under Art. 142, Limitation Act, inasmuch as it was incumbent on the pltf. to prove that be bad been in possession of the disputed lands, especially those mentioned in Sch. 11 of the plaint, within 12 years of the suit, but he had failed to do so. In our opinion, this plea must be negatived. The trial judge in his judgment came to a very Clear finding in these words :

"The story of possession and dispossession as put forth in the plaint must be believed, because, as I have already said there is overwhelming evidence in this case to prove the possession of the pltf. over the surface as well as the Sub-soil."

The finding of the Sub-ordinate judge does not seem to have been challenged before the H. C. and though no less than 16 reasons have been given in the statement of case filed in this Ct. on behalf of the applt, it has not been stated that there is no evidence to show that the pltf. was in possession of the disputed land or the land mentioned in Sch. II within 12 years of the suit.

19. Thus both the points urged in this appeal fail. There can be no doubt that the entire tenure has passed to the pltf. by the sale, but, apart from this fact, it is well settled that a zamindar is presumed to be the owner of the underground rights in the tenancies created by him in the absence of evidence that he ever parted with them. (SeeHari Narayan Singh v. Sriram, 37 I. A. 136 and Durga Prasad Singh v. Braje Nath, 391. A. 133.)

20. The result is that this appeal fails, and it is dismissed with costs.

21. Appeal dismissed.