JUDGMENT 1. This litigation involves the fiscal history of a number of villages which at one time formed parts of a large estate then known as sarkar Tirhoot. The predecessors of the Plaintiff, the Rajas of Darbhanga, were zemindars under the Emperors of Delhi and they held Sarkar. Tirhoot in that capacity. The terms of the settlement under which they held are shrouded in obscurity in the same way as the terms under which most of the ancient zemindars held their estates. The voluminous literature of the Permanent Settlement of the Bengal Provinces and the papers on the record of this case do not sufficiently disclose the status and the conditions of the holdings of these zemindars generally and of the Plaintiff's predecessors in particular. This much, however, is clear that the Darbhanga Raj as zemindar had in sarkar Tirhoot an interest which could not, without payment of some sort of compensation, be defeated even in part, by an Imperial Edict. Such an edict, it appears on the evidence, was passed in the sixth year of the reign of the Emperor Alamgir II and under the Imperial Sanad of Delhi, dated the 2nd of the month of Saffa, a large number of villages including the following, viz., Rampur Musdan alias Rajapur Hossan in Pargana Paralobhigo Akharpur, Sahu, Pokhranwan, Pokhranwan Bazurg and Bishnupur in Pargana Ahalwara, Harnagar in Pargana Harni, Dari Hira, Sauripur and Manikpur in Pargana Nirsone, Hari Ram Das in Pargana Mirdhaba Khard and Hirodhar Saw in Pargana Harni, which were afterwards called Jaigir Meherullah Khan, were granted as altamaha. All these villages were thus separated for certain fiscal purposes from sarkar Tirhoot and ceased to be in the direct possession of the Darbhanga Raj. Whether they were separated permanently or not the zemindar or sarkar Tirhoot, it appears, was entitled, according to the revenue rules in force under the Mussulman system adopted by the Moghul Emperors, to compensation during the period of separation. Such compensation was usually called malikana and in the present instance it was called dusturat and malikana. Whether they were separated permanently or not the zemindar or sarkar Tirhoot, it appears, was entitled, according to the revenue rules in force under the Mussulman system adopted by the Moghul Emperors, to compensation during the period of separation. Such compensation was usually called malikana and in the present instance it was called dusturat and malikana. Neither the Imperial Sanad nor any account papers nor any other contemporaneous documents are forthcoming to help us in ascertaining the true character and amount or mode of calculation of the dusturat and malikana, allowances as settled at the time of the grant of the villages by the Emperor, but the earliest documents we come across are those of the 24th February 1780. They are the Parwanas of the Council of Azimabad directed to the jaigirdars and issued on the application of Rajah Madho Singh of Darbhanga and on certain enquiries made as to the assets of the jaigir villages in 1185 F. The Council fixed Rs. 22,321-12-3 p. as payable by the jaigirdas to the Raja, out of which an aggregate sum of Rs. 796-2-9 p. was payable by Meherullah Khan for the villages we have already named and which were hence known as Jaigir Meherullah Khan. The Parwana directed that the amounts specified in them should be paid by the several jaigirdars to the Rajah from 1186 F. The Parwana issued on Meherullah Khan gives certain details but the present state of the document, with portions of it torn and illegible, does not allow us accurately to ascertain the same. The malikana properly so called seems to have been five per cent, of the nett assets of the villages, but the other items are difficult to ascertain. The amounts pay bale by the jaigirdars seem to have been variable from the year of the grant to 1185 F. but the Council evidently fixed the amounts payable from 1186 F. and so far at least as Jaigir Meherullah is concerned, the amount then fixed (i.e., Rs. 796-2-9 p.) has since remained unaltered. There is now no contention before us as to the right of the Plaintiff to receive this annual sum and this he is now entitled to get from the Secretary of State for India in Council. 2. 796-2-9 p.) has since remained unaltered. There is now no contention before us as to the right of the Plaintiff to receive this annual sum and this he is now entitled to get from the Secretary of State for India in Council. 2. So far as we can make out, the quinquennial settlements made since 1780, and the Decennial and Permanent Settlements of 1790 and 1793 respectively did not include the jaigir villages in the settlements with the Darbhanga Raj. The settlements were made exclusive of these villages, the Raj being only entitled, under the order of the 24th February 1780 to which we have referred, to dusturat and malikana as specified in the. Parwanas of that date. Thus though originally forming parts of sarkar Tirhoot they ceased to be so at the Permanent Settlement of 1793, and all the rights of the Raj in respect of them, except dusturat and malikana, were practically extinguished. 3. The villages composing Jaigir Meherullah Khan remained in the possession of Meherullah Khan and his representatives for more than half a century, and thereafter steps were taken, under Reg. II of 1819 and Reg. III of 1828, to resume them. Rampur Madon alias Rajapur Hasan with its dependent villages in Pargana Purbo Bhigo was resumed on the 5th June 1838, and by a proceeding of the 13th February 1846 it was permanently settled by the Government. The re venue was assessed at Rs. 189-11-3 and malikana at Rs. 38-11-9. The malikana, was payable to Dharma Nath Das and others who had acquired by purchase the jaigir right and not to the Darbhanga Raj. The settlement was made with reference to the provisions of sec. 3 of Regulation II of 1819 and not sec. 6 of Reg. XXXVII of 1793, the village having been excluded from the estate permanently settled in 1793 with the Raj. It is, however, curious that no provision was made for payment by the settlement-holder of Rampur Madon of any portion of the dusturat and malikana receivable by the Raj for Jaigir Meherullah Khan. A proportionate amount of this dusturat and malikana, which appears from the papers of 1844 to have been Rs. 17-8, i.e., less than a half of the malikana assessed at this settlement was undoubtedly payable by the holder of the village as one of the Jaigir mehals. A proportionate amount of this dusturat and malikana, which appears from the papers of 1844 to have been Rs. 17-8, i.e., less than a half of the malikana assessed at this settlement was undoubtedly payable by the holder of the village as one of the Jaigir mehals. The result of the permanent settlement of Rampur Madon without any provision for the Raj dues was that the Government became liable to pay dusturat and malikana to the Raj and they have done so since and they do not disclaim their liability to pay the entire sum Rs. 796-2-9. Of the villages in Pargana Ahalwara, Akhurpur was resumed on the 10th January 1840 and permanently settled by a proceeding, dated the 24th July 1848, at Rs. 614-10-1, out of which Rs. 101-5-10 was payable as malikana. to the jaigir-holders of that time. In this settlement also no provision was made for payment to the Darbhanga Raj of the dusturat and malikana which would fall on the village. The papers before us do not also show what were or would be the separate amounts payable as dusturat and malikana, for this village and the other villages in Pargana Ahalwara. 4. Sahu, also in Pargana Ahalwara, was likewise resumed on the 10th January 1840 and after various temporary settlements was permanently settled by a proceeding of the 10th May 1865. We shall revert to this proceeding later on as it is the foundation of the present litigation. 5. Pakhrawan in Pargana Ahalwara was also resumed on the 10th January 1840 and was permanently settled by a proceeding of the 16th August 1845. This village is also called Pakhrawan Sarowan. The revenue fixed was Rs. 201-14-1, of which Rs. 36-10-4 was malikana. The malikana was payable to Khadaran Chowdhurani and others and not to the Raj and provision was not made for the dues of the Raj. Pakhrawan Buzrog another jaigir village in Pargana Ahalwara was, with the other villages, resumed on the 10th January 1840 and permanently settled by a proceeding of the 9th August 1845. The revenue fixed was Rs. 709-0-4 and out of it a malikana, of Rs. 127-4-4 was payable to certain Chowdhuries. No notice was taken of the right of the Darbhanga Raj to dusturat and malikana which was a charge on this village with the other villages. 6. The revenue fixed was Rs. 709-0-4 and out of it a malikana, of Rs. 127-4-4 was payable to certain Chowdhuries. No notice was taken of the right of the Darbhanga Raj to dusturat and malikana which was a charge on this village with the other villages. 6. Bishnupur the fifth village in Pargana Ahalwara was resumed by the Government on the same date as the other villages in the Pargana and was permanently settled, after various temporary settlements, by a proceeding of the 25th April 1865 with the purchasers of the Jaigir rights who were themselves in possession. The revenue was fixed at Rs. 499-5-4 but nothing was payable as malikana and none would be, because the settlement was made with the ex-jaigirdars in possession. At this time, however, the right of the Raj to receive dusturat and mahkana was well known, yet no provision was made for the same. This was clearly an oversight. The village was bound to pay its share of the dues of the Raj, but no notice was taken of the fact in this settlement, though in the course of a few days provision was made for it in the settlement of Sahu. 7. According to the papers of 1844 the amount payable to the Raj for the five villages in Pargana Ahalwara was Rs. 703-10. Accepting the contention raised on behalf of the Government, we observe that this sum ought to have been apportioned on the five different villages at their settlements, but it is obvious that the Government Officers omitted to do so, except as regards Sahu. No reason has been given to us for such omission. The conflicting decision of the revenue authorities on the claim of the Raj are on the record. They differ from each other on material points, they give valuable information bearing on the question raised before us, but they do not touch the vital matter-the reason for the omission to apportion and assess the dusturat and. malikana, dues on the several villages resumed and permanently settled previous to the permanent settlement of Sahu with the Plaintiff's predecessor and his co-sharers. 8. Harnagar in Pargana Harni, also one of the villages in Jaigir Meherullah Khan, was resumed on the 23rd June 1836. It was permanently settled by a proceeding of the 30th March 1860. malikana, dues on the several villages resumed and permanently settled previous to the permanent settlement of Sahu with the Plaintiff's predecessor and his co-sharers. 8. Harnagar in Pargana Harni, also one of the villages in Jaigir Meherullah Khan, was resumed on the 23rd June 1836. It was permanently settled by a proceeding of the 30th March 1860. Maharaja Ruder Singh Bahadur was declared to be malik and though the revenue was fixed at Rs. 311-11-0 a sum of Rs. 28-5-4 was declared payable to the Raj as malikana. It does not appear whether the Raj had any other right to the malikana except as zeminder at one time of Sarkar Tirhoot. If that is so, the sum of Rs. 28-5-4 was charged on this village as its share of dusturat and malikana, i.e., of Rs. 796-2-9. The actual amount, however, was only Rs. 19-15-6 as we find from the papers of 1844 to which reference has already been made. 9. The villages in Pargana Narson included in Jaigir Meherullah Khan were resumed on the 4th December 1839, but it is not necesary for us to go through the history of these or the other villages in Jaigir Meherullah Khan, as it appears that in the permanent settlement of none of them was any notice taken of the present claim of the Darbhanga Raj to dusturat and malikana. Each village had to pay its proportionate share, but there was no imposition under this head. Malikana was added to revenue whenever the ex-jaigirdars or persons claiming through them were found not to be in possession. That the jaigir-holders originally had to pay a certain sum each for making up in all Rs. 796-2-9 for Jaigir Meherullah Khan is clearly established by the documentary evidence on the record. That upon the resumption of the jaigir the liability shifted on to the Government and that the Government admitted their liability is also clearly established, but it does not appear that the Government took the necessary precaution to impose on the permanently settled holders the liability by fixing definite amounts as payable by them over and above the Government revenue and the malikana to the ex-jaigirdars or their legal representatives as provided in sec. 3 of Reg. II of 1819. Sahu and Harnagar are probably exceptions. 3 of Reg. II of 1819. Sahu and Harnagar are probably exceptions. It would seem, therefore, that in most of the permanent settlements the Officers of Government either legally or unwittingly omitted to fix any sums in the shape of dust mat and malikana payable to the Raj. Thus the Government had to take upon itself the burden of paying Rs. 796-2-9 for Jaigir Meherullah Khan and Government, according to the contention of the learned Advocate-General, must be regarded as a loser except in so far as the amounts are recoverable from Harnagar and Sahu. 10. The exact origin and nature of the charges dusturat and malikana or dusturat malikana are matters involved in obscurity. These charges have not been defined in the revenue regulations. 11. The term malikana is derived from malik, the Arabic word for " owner " or " proprietor " and it means an allowance for proprietary rights given by Government to proprietors who declined to engage for the jamas proposed to them under the Regulations of 1793 and whose lands were, in consequence, let in farm or held khas by Government. The rule on the subject is now to be found in sec. 5, Reg. VII of 1822. But it appears from Mr. McNeile's Memorandum on the Revenue Administration of the Lower Provinces (1873) that " in the Behar district the payment of malikana dates from a period long anterior to that of the Permanent Settlement." Mr. Shore in his minute of the 18th September 1789, stated that he had in vain endeavoured to trace the origin of, the system, but he supposed it "to have arisen from the custom established in that province of dividing the produce between the cultivator and Government, in order to afford the proprietor of the soil a proportion of the produce which, under such an usage strictly enforced, he could never receive without some authorized allowance in his favour." (Para. 6). In other words, those " proprietors" who were in receipt of malikana in. Mr. Shore's time, had been already shelved with hereditary pensions amouting to a certain percentage on the rental of their estates, rental and revenue being then synonymous. Mr. McNeile goes, on to say that the Permanent Settlement put an end to this system " except in those cases where the proprietors declined the terms offered them, preferred to remain out of possession. Mr. McNeile goes, on to say that the Permanent Settlement put an end to this system " except in those cases where the proprietors declined the terms offered them, preferred to remain out of possession. Such proprietors continued, as in other parts of Bengal, to receive malikana allowances under the rule above quoted." 12. McNeile also says: "But there are besides extensive lands in Behar, the Government share of the rental of which had been alienated by royal and other grants. The proprietors of these lakhiraj tenures were in receipt of malikana from the lakhirajdars; and when subsequent resumption operations were carried out, and a large number of these lakhiraj estates were assessed to the public revenue, the lakhirajdars remaining in possession, the malikana previously due from them was added to the Government revenue, with which they were assessed, and has since been paid to the "' mialiks " from the treasury by the Collector." (Page 99). These observations may be equally applied to the facts of the present case for it will appear from the Parwana of the year 1780 to which reference has already been made that the English Company, the Dewan of the Emperor Shah Alam, continued the payment of certain allowances styled dusturat, nankar, and malikana to Rajah Madho Singh the predecessor of the present Plaintiff, on account of the lakhiraj mehal Meherullah Khan: these allowances, as we have stated, amounted to Rs. 796-2-9, and they were unaltered until the mehals were resumed. In Mr. Shore's Minute of the 18th September 1789 (para. 147), reference is made to a proposition of the Collector of Tirhoot for the resumption of the grant of dusturat to the Rajah and for making him a permanent allowance in compensation for the resumption. The dusturat is there stated to comprehend a variety of articles of which an enumeration is given from an account for 1187 F. It includes malikana, and this paragraph in Mr. Shore's minute may explain the entries in the Parwana of 1780. We think, however, Mr. Shore referred to other dusturats and not the dusturat referred in the present suit though it is of the same nature. 13. Shore's minute may explain the entries in the Parwana of 1780. We think, however, Mr. Shore referred to other dusturats and not the dusturat referred in the present suit though it is of the same nature. 13. Thus the history and nature of these imposts, so far as they may be ascertained from the paper on the record of this case and the authorities on the subject, lead us to the conclusion that they were originally payable by the holders of the villages to the proprietors of the parent estate from which they had been carved out; that on resumption the Government occupied the same position as that of the original holders of these villages or their representatives when, and so long as they were in possession (and as a matter of fact the Government admits such liability), and that after the Government parted with possession, by making permanent settlements the liability naturally passed to the settlement-holders. 14. The sum payable for Jaigir Meherullah Khan has remained unaltered since 1780, and it appears to us that it is fixed and unalterable, and each settlement-holder is bound to pay his share of the original sum as a liability which has passed to him from the jaigirdars and the Government in succession. If the ex-jaigirdar is also the settlement-holder, there can be no question that he should bear the burden, and a rateable part of the allowance to the proprietor of the original parent estate should be added to the revenue payable, the Government having undertaken to pay the entire allowance. If, on the other hand, the settlement-holder is some other person, not the ex-jaigirdar, the rateable share of the allowance ought still to come out of the villages and be paid either out of the malikana payable under sec. 3 of Reg. II of 1819 and sec. 5 of Reg. VII of 1822 or be added as an additional sum payable by the settlement-holder over and above the revenue and malikana. We do not deem it necessary now to consider from whom the sum should be realised in the event of a settlement-holder being different from the ex-jaigirdar. 3 of Reg. II of 1819 and sec. 5 of Reg. VII of 1822 or be added as an additional sum payable by the settlement-holder over and above the revenue and malikana. We do not deem it necessary now to consider from whom the sum should be realised in the event of a settlement-holder being different from the ex-jaigirdar. If, however, the lands by any process of transfer or merger, came into the possession of the proprietor himself, the allowance or a rateable share of it, would come to an end, and the Government on resettlement after resumption would be entitled to be relieved of their liability pro tanto. 15. In the present case, Sahu came to be in the possession of the Plaintiff, the proprietor, to the extent of a two-thirds share, and Dulari Koer or Kishan Bullay Mahto had the remaining one-third as representatives of the ex-jaigirdars, and so far as the two-thirds share of the rateable amount payable for Sahu is concerned, the Plaintiff could not claim it from Government. If, notwithstanding the settlement, the Government kept on their entire liability and continued to pay the entire sum of Rs. 796-2-9, the Plaintiff was bound to re-imburse the Government to the extent of his share of the liability. 16. The Plaintiff's predecessor acquired a two-thirds share of the jaigir village Sahu in 1853 and the permanent settlement was concluded by the proceeding of the 10th May 1865. The revenue fixed was Rs. 2,892-2-1 out of which Rs. 482-0-3 was payable as malikana. This malikana, according to the proceeding and the correspondence that took place between the Collector and the higher revenue authorities, was payable to the Plaintiff's predecessor himself, but the proceeding is ambiguous as to whether it was payable as a part of the original dusturat and malikana allowance or as an independent item. All that clearly appears is that it was payable to the Plaintiff's predecessor as proprietor of Sarkar Tirhoot. He was not eititled to it or a two-thirds share of it as ex-jaigirdar because the settlement was made with him and his co-sharers as the jaigirdas in possession. But the question necessarily arises why should the sum of Rs. 482-0-3 be payable in addition to the sum of Rs. 796-2-9. The Maharaja had no right to it under the fiscal laws in force. But the question necessarily arises why should the sum of Rs. 482-0-3 be payable in addition to the sum of Rs. 796-2-9. The Maharaja had no right to it under the fiscal laws in force. He could get it only as a part of the original allowance. 17. The confusion giving rise to the present litigation is, it seems to us, attributable to an incorrect use of the term malikana after the resumption of jaigir mehal Meherullah Khan, as, also, to the fact that a species of malikana, was one of the items aggregating Rs. 796-2-9 being the consolidated sum which was paid from the year 1780 to Rajah Madho Singh and his successors in the Raj Darbhanga. It is sufficiently obvious that the charge ceases when the property on which it is charged is no longer excluded from the control of the person to whom an allowance was granted by way of compensation for his deprivation of that property. This, it seems to us, was the result of the settlement of the year 1865, of Mouzah Sahu, made with the Raj. The settlement of Sahu to the extent of a two-thirds share was made in perpetuity with the proprietors of the lands in conformity with sec. 6, Reg. XXXVII of 1793-the Badsahi Grant Regulation-and no malikana allowance was permissible with reference to the provisions of Reg. VII of 1822, sec. 5, because the jaigir was neither let in farm nor held khas, the proprietor was not " expropriated " as the expression is. 18. Assuming, however, that malikana was properly allowed in the settlement of 1165, we think that the amount of dusturat, nunker, etc., as the items appear in the proceedings and Parwanas of 1780 previously payable to the proprietor should have been expressly deducted from, the amount of malikana granted. This was not done but the consolidated sum of Rs. 796-2-9 continued to be malikana and the sum of Rs. 482-0-3 was allocated either on a correct calculation or not to Sahu. But the real difficulty in this case has arisen not merely from the ambiguous language of the proceeding of the 10th May 1865 as from the procedure adopted by the revenue officers in calculating the amount payable to the proprietor, the Plaintiff's predecessor. 482-0-3 was allocated either on a correct calculation or not to Sahu. But the real difficulty in this case has arisen not merely from the ambiguous language of the proceeding of the 10th May 1865 as from the procedure adopted by the revenue officers in calculating the amount payable to the proprietor, the Plaintiff's predecessor. In the view we have taken, the proper sum to be added as malikana, to the actual amount of revenue or Government demand as such was only a proportionate amount of the sum of Rs. 796-2-9 and not ten per cent, of the nett assets. The latter calculation is applicable to the case of ordinary malikana payable under the Regulations and calculated according to sec. 5 of Reg. VII of 1822, but when the on so rests on a grant of pensionary allowance like the one before us, the calculation must be based on a different principle, such as we have indicated above. In the different settlements of the different villages at one time constituting Jaigir Meherullah Khan, this principle was lost sight of and the consequence has been undoubted loss to Government and it may be loss to the Plaintiff as well. 19. This appeal was allowed to stand over after its first hearing in order that the parties might have a further opportunity of adducing evidence on the question of the exact amount apportionable on Sahu as dusturat and malikana, so that, if possible, the rights and liabilities of the parties might be finally adjusted. The Secretary of State for India in Council has filed certain documents which we have used as evidence. The Plaintiff has filed none. We do not, however, find in the record even with the additions made to it in this Court, sufficient materials for ascertaining the precise amount payable for Sahu, though there can be no doubt as to the liability of the Plaintiff to pay to the Government a proportionate share of the sum which the Government pays as dusturat and malikana, according to the proceeding of the Council of Azima. bad of the 24th February 1780. The Permanent Settlement (of 1865) of Sahu may not be altered but relief could be given to the Plaintiff in other ways, if the exact amount could be ascertained. 20. It is, however, clear that the Plaintiff cannot get the sum of Rs. bad of the 24th February 1780. The Permanent Settlement (of 1865) of Sahu may not be altered but relief could be given to the Plaintiff in other ways, if the exact amount could be ascertained. 20. It is, however, clear that the Plaintiff cannot get the sum of Rs. 482-0-3 as malikana in addition to the sum of Rs. 796-2-9 payable as dusturat and malikana. It would be most inequitable to direct that the Raj should receive both the sums, and this in fact is the relief sought for in the suit. 21. There is absolutely nothing on the record to enable us to apportion the sum of Rs. 703-10 amongst the villages in Pargana Ahalwara, a sum which was at one time held to have been payable by them together unless we can fall back on the assets fixed at the different permanent settlements. This may be a sough way of dealing with the matter but we have not been asked by any party to do so for obvious reasons. We find that on a calculation at ten per cent, on the assets of the different villages as ascertained at their permanent settlements, Akbarpur gives Rs. 101-5-10, Sahu gives Rs. 482-0-3, Pokhrawan gives Rs. 36-10-4, Pokhrawan Buyurg Rs. 127-4-4 and Bishenpur Rs. 49-14-11, making altogether Company's Rs. 797-3-8, while the amount payable as dusturat and malikana. is Rs. 703-10 sicca. In the view we have taken of the true intention of the settlement proceedings of Sahu with the Raj and its co-sharer, these dues were calculated at ten per cent. This, however, is a rough mode of calculation and can hardly be the basis of a judicial decision. The Plaintiff may have the right to get an adjudication of his precise rights and obligation in a future suit properly framed and after producing proper materials and in view of the frame of the present suit, we leave the matter open.. But the present suit and appeal must be dismissed with costs and we order accordingly.