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LECTURE

XII.

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of proceeding in resumption, it is enacted that lands
not settled for and not legally revenue-free are to be liable
to assessment; and the revenue of such lands, whether
exceeding one hundred beegahs or not, is to belong to
Government. This is not to affect the rights of zemindars
and other proprietors of permanently settled estates."
This provision applies also to churs and islands formed
since the Decennial Settlement, and to all lands gained
by alluvion or dereliction as well as to lands, which although
included within the limits of talooks held under special
pottahs, such as the putteetabady and jungleboory talooks
in the Twenty-four Pergunnahs and Jessore, were not
permanently assessed at the Permanent Settlement. But
the terms of the pottah are to be observed as regards the
original pottah-holder or his legal representatives.
rules as to the validity of revenue-free grants are declared
applicable to grants at a fixed or mokurreree jumma, and
to other grants limiting the demands of Government.*
Similarly as to lands given in lieu of pensions.5 Nothing
in the Regulation is to affect the right of proprietors of
permanently settled estates to the full benefit of the
cultivation of all waste lands included in their estates at
the Permanent Settlement, and no claim is to be made
with respect to permanently settled lands on the ground
of error, fraud, or any pretext whatever."

The

1 S. 3, cl. 1.

2 S. 3, cl. 2.

'S. 3, cl. 3.

4 S. 4.

• S. 29.

6

S. 31. See as to this Regulation, Sonatun Ghose v. Moulvi Abdul Farar, B. L. R., Supp. Vol., 109.

POSSESSORY RIGHT OF LAKHIRAJDAR.

465

XII.

rights are

Regulation XIII of 1825 provides for the settlement LECTURE of canoongoes' lands in Behar, and for the Governor-General in Council continuing in possession the holders of lakhiraj Provisions where lakhiraj tenures, where the minhye or lakhiraj tenure is distinct from and proprietary the proprietary right in the soil: the proprietors are in such distinct. cases to continue to receive the same dues as before, but they are not to disturb the possession of the minhyedar or lakhirajdar,' whose tenures are declared hereditary and transferable. If these tenures escheat to Government, settlements are to be made under the general Regulations with the proprietors. These principles are also to apply to those tenures which, under Regulation XIX of 1793, section 8, clause 2, are to be assessed at half the produce; the intention being that the rule should be applied in favour of long possession. The same rules are to apply also to badshahee grants. These provisions tend still further to limit the wide power of ejectment at first given with respect to invalid lakhiraj. Regulation XIV of 1825 was passed to declare the extent of authority vested in the revenue officers with respect to the confirmation of lakhiraj; and to define the principles upon which grants before the accession to the Dewanny were to be considered valid. It recites that the power of granting or confirming lakhiraj tenures, except judicially, belongs to the Supreme Government alone. It enacts that lakhiraj tenures of which uninterrupted possession has been held at and subsequent to the 12th August 1765, shall be valid without evidence of any formal grant or confirmation, and shall be hereditary where they would be so by ancient usage. This rule does not

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LECTURE
XII.

anterior to

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however apply to derivative tenures which were held at that date above mentioned by a jageerdar or other tenant under a temporary or conditional tenure: such parcels of land shall follow the condition of the principal tenure.1 The burden of proof of possession at the date above mentioned, and of the hereditary nature of the tenure, where the holders are not the original grantees, is to be on the parties claiming to hold the lakhiraj tenure; the general principle as to the primary right of the State to a share of every beegah of produce being again asserted. And one or more successions shall not alone be sufficient to establish a right of inheritance. The provision on this point in Regulation XIX of 1793 was omitted with reference to badshahee grants in Regulation XXXVII of 1793, so that with reference to these the present rule was already in force.

The authorities whose grants of lakhiraj are to be recogRequisites of lakhiraj grants nised are enumerated, including the kings of Dehli and the British rule. soubahdars of Bengal. The grants of these authorities are good if (1) they were made or confirmed within the period during which the person granting or confirming such tenures possessed and exercised supreme power within the territory within which the lands specified in the grants are situate; (2) the grantee actually and bond fide obtained possession of the land within the same period; and (3) the grant was not subsequently resumed by the Government for the time being, before the British acquisition of the territory; or if so resumed, where the competence of the officer who resumed shall have been expressly disallowed by the Governor-General in Council. Grants not made

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or confirmed by the Supreme Power (except those included in clause 2) must have been made or confirmed by some authority expressly declared competent by the GovernorGeneral in Council, and there must have been actual bona fide possession and no subsequent resumption.' This Regulation does not affect religious or charitable grants coming under the Regulations and which do not exceed ten beegahs."

3

LECTURE
XII.

sions.

Regulation III of 1828 provides that persons succeeding Further provito revenue-free lands and lands held on a mokurreree jumma, whether by transfer or inheritance, shall give notice to the Collector. Omission to give such notice renders the land liable to immediate attachment by the revenue officers and a fine of a year's rent. This provision is designed as a security for the revenue and not for private interests. Tenures not duly registered, or to which the specification does not show an hereditary title or that it is a perpetual endowment, shall be and be held to have been liable to resumption, unless they have been declared to be hereditary by a final decree of a Court on the demise of the persons in possession at the date of Regulations XIX and XXXVII of 1793. The Collectors and other officers authorised to do so are to assess, and, if necessary, attach, all lands liable to resumption as above in the same manner as in the case of a lapsed farm. The Regulation then provides for ascertaining the nature of claims to exemption from assessment by the whole deed and not merely from the designation of the tenure. Jageers consequently shall

1 S. 3, cl. 8.

2 S. 4.

3 S. 11, cl. 2.

Umrithnath Chowdhry v. Koonjbehary Sing, W. R., F. B., 34.

LECTURE

XII.

Cases upon resumption.

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not be held to be for life only if the tenure granted is clearly hereditary; nor shall any tenure be considered hereditary unless expressed to be hereditary or perpetual.'

With regard to the sale of lands of lakhiraj tenure, it is provided by section 9, Act VII of 1868 (B.C.), that when such lands have been sold before that Act for arrears of revenue or demands in the mode provided by Act XI of 1859, the sale shall have the same force and effect against the person liable to pay the revenue or demand as a sale in execution of a decree.

Upon the above Regulations it has been decided with regard to the holder of land resumed by Government that the proprietor must be settled with; he must be assessed, not evicted. The zemindar of course has, since the Permanent Settlement, no power to free any part of his land from payment of revenue: he may however still make rent-free grants. A zemindar seeking to resume must make a prima facie case that rent has been received on account of the land sought to be resumed since 1790, or that the lands in question were part of the mal lands of his zemindary at the Permanent Settlement. The holder must

1 S. 12.

2 See a review of them in Maharaja Dheeraj Raja Mahatab Chund Bahadoor v. The Bengal Government, 4 Moore's I. A., 466.

› Hurryhur Mookhopadhya v. Madub Chunder Baboo, 14 Moore's I. A., 152. Mahomed Israile v. Wise, 13 B. L. R., 118. See however Bheekoo Singh v. The Government, 10 W. R., 296.

4

Mutty Lall Sen Gywal v. Deshkar Roy, 9 W. R., 1, where such grants are fully discussed. Rajah Nilmoney Singh Deo v. The Government, 6 W. R., 121. Ahmudoollah v. Mithoo Lall, 3 Agra R., 186. As to the zemindar's power to grant free of revenue, see Sonatun Ghose v. Moulvi Abdul Farar, B. L. R., Supp., Vol. 109, at pp. 150, 151. And as to altumghas for charitable purposes, see Jewun Doss Sahoo v. Shaik Kubeerooddeen, 2 Moore's I. A., 390, at pp. 403, 408 to 410 and 419.

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