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It has now been enacted as a general rule by Act VI of Lecturk 1862 (B. C), section 9, re-enacted by Act VIII of 1869 —(B. C), section 25, that "every proprietor of an estate or tenure, or other person in receipt of the rents of an estate or tenure, has the right of making a general survey and measurement of the lands comprised in such estate or tenure, or any part thereof, unless restrained from doing so by express engagement with the occupants of the lands." It has been held upon this that the zemindar may measure a talook held at a fixed rent ;* and where talooks had been sold by the talookdar with a proviso that the purchaser should get his name registered in the zemindar's sheristah and pay rent accordingly, but the purchaser (the defendant) had not been registered, and had paid his rent to the assignee of his vendor and to his mouroossee lessee, the plaintiff, it was held that the plaintiff was entitled to measure because the land had not been sufficiently disconnected from his talook.2 The landlord, in order to be entitled to measure, must be in possession or receipt of the rents.3 The ryot is also entitled to have his land measured, but this right merely depends upon general principles.4 If
1 Oomachurn Biswas v. Shibnath Bhagchee, 8 W. IS., 14. Baboo Kim Bahadoor Singh v. Mulooram Tewaree, ib., 149.
'Tweedie r. Ram Narain Dass, 9 W. R., 151.
■ Kajchunder Roy v. Kishen Chunder, 4 W. R., Act X, 16. Doorga Churn Doss v. Mahomed Abbas Bhooyan, 14 \V. IS., 399; 6 B. L. R., 361, s. c. Doorga Churn Doss v. Mahomed Abbas Bhooyan, 14 W. R., 121. Kalee Doss Nundee v. Ramguttee Dutt Sein, 6 W. R., Act X, 10. Smith v. Baboo Nundun Lai, ib., 13. Huradhun Dutt r. Hazee Mahomed, ib., 14. Pureejan Khatoon v. tiykunt Chunder Chuckerbutty, 7 W. R., 96.
4 Durpnarain Raee r. Srecmunt Raee, S. D. A. (1849), 188. See Afsurooddeen v. Mussamut Shorooshee Bala Dabee, Marshall, 55S. Ram Churn Bysack r. Lucas, 16 W. R., 279.
tho lands measured are found to be in excess of those included in his lawful holding, he may be treated as a trespasser as to the excess ;l or he may be charged rent for it, at a fair and equitable rate according to Mr. Justice Phear, or at the rate paid for the lands included in his pottah according to Mr. Justice Bayley ;2 or at the pergunnah rate in the case of jungleboory talooks.5 Act VI of 1862 (B. C), sections 9, 10, 11, and Act VIII of 1869 (B.C.), sections 37 to 41, provide for assisting the person entitled to measure and for the standard of measurement. Under these provisions it has been held that one shareholder of an estate cannot obtain the aid of the Collector for the purpose of measurement.*
We have seen that the zemindar has no longer his former power over the ryots: he cannot now enforce their attendance for any purpose,5 and is simply restricted to his rights as a landlord.
The zemindars were vested at the Permanent Settlement with the power to dispose of their lands more freely than they had theretofore been able to do. At the same time provisions were made for a division of the zemindary under certain circumstances. Thus, it was provided that when there were several joint-proprietors of a zemindary, and some were disqualified, the jumma should be settled by the majority, but a dissatisfied shareholder might have his
DIVISION OF ESTATES. 383
share separated at his own expense.1 And at the Perma- Lecturk nent Settlement these provisions were supplemented by — further provisions for division of zemindaries. Regulation I of 1793, section 10, clause 1, provides that all private transfers and divisions shall be notified to the Collector in order that the jumma may be apportioned, and the shares with the jumma registered, and that separate engagements may be executed by the proprietors, who will thenceforth be considered as actual proprietors of land. The section further provides that if such notification is not made, the whole estate will be held liable as if no transfer or division had taken place; and that, if lands be disposed of as a dependent talook, the dependent talookdar's jumma will not be registered, nor will the rights or claims of Government against the lands for the whole revenue be affected. The section then lays down the principles of assessment of the jumma in case of a sale of the whole of the zemindary in lots, and of a portion in one or several lots. The 11th section provides for the sale in lots or otherwise of lands held khas or let in farm. Regulation XXV of 1793 provides that in dividing revenue-paying estates the shares shall be rendered as compact as possible. For the purpose of apportioning the jumma, the officers of Government are to have access to the accounts of the gross collections, the Regulation declaring that the proprietors cannot, under the provisions of the Permanent Settlement proclamation, object to produce their accounts in such a case. It is also provided that the proprietors of two or more estates, which have originally formed part of the same zemindary, talook, or chowdrai, shall be allowed to
1 Regulation of 23rd November 1791, arts. 22 to 24. Regulation VIII of 1793, ss. 23 to 26.
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Lkctur* unite them into one estate. It further provides by section — 4, clause 1, that if one or more proprietors of a joint estate wish to have the separate possession of their shares, or if two or more desire to hold their shares jointly, but separately from the other shares, the Board of Revenue may authorise the Collector to make the required division. And by clause 2 of the same section, it is enacted that, when any person or persons may succeed to the proprietary right in a portion or the whole of an estate under a decree of Court, the Court may require the Collector to divide the estate, and, if the land is not held khas or let in farm by Government, to put the parties into possession of their separate shares. And the Regulation gives further rules for division of estates, and for assessing the revenue thereupon according to Regulation I of 1793. This Regulation was repealed by Regulation XIX of 1814, section 2: but before its repeal it was explained by Regulation I of 1801, section 12, that its provisions applied to joint estates held in common tenancy, when all the sharers had a common right and interest in the whole of the estate, without any separate title to distinct lands of mohauls forming part of the estate held under one general assessment. This was repealed with the original Regulation. Regulation I of 1801 further, by section 14, provides that if any zemindar shall have disposed of his proprietary rights in any portion of his zemindary, whether as an independent talook or otherwise, without a separate assessment having been made according to the Regulations, such transfer as far as respects the rights of Government must be considered altogether invalid: and if such land has or shall be included in a public sale for arrears of revenue, such transfer must be deemed to have been altogether done away. The lands
DIVISION OF ESTATES. 385
transferred in such cases, until publicly registered and Lkcturk separately assessed, form part of an undivided estate, and as —— such are liable to be sold for any arrear of revenue which may be due from any part of the estate.
Inconveniences were found to arise from allowing the sale of land in portions;1 and it was therefore provided, by Regulation VI of 1807, that estates, the sudder jumma of which was less than Sic. Rs. 1,000, or the jumma of the divisions of which would be less than Sic. Rs. 500, were not to be divided. This Regulation was repealed by Regulation V of 1810, which contained amended rules for the division of revenue-paying estates. Regulation V of 1810 was in turn repealed by Regulation XIX of 1814, section 2. By section 3, clause 2 of Regulation XVIII of 1812, it is provided that when a joint estate is divided, the revenue shall be assessed on the shares according to section 10 of Regulation I of 1793 without regard to any engagements that may subsist between the proprietors and their dependent talookdars (except the dependent talookdars described in section 7 of Regulation XLIV of 1793), underfarmers, or ryots. But all leases in conformity to sections 2 and 3 of Regulation V of 1812 and section 2 of this Regulation shall remain in full force, notwithstanding division or sale of the whole or a paction under a decree, or the devolving of the same by inheritance, or the private transfer thereof by sale, gift, or otherwise. This Regulation by section 3 repealed a similar provision in Regulation XLIV of 1793, section 3.
Regulation XIX of 1814, while repealing former rules, reduced the Regulations for partition of revenue-paying
1 Fifth Report, Vol. I, 34.