Judgement Appeal from a decree of the High Court (February 5, 1907) affirming a decree of the Subordinate Judge of Zillah Tirhut (December 17, 1903). The suit was brought by the appellant, the Maharajah of Darbhanga, in February, 1902, claiming, so far as material, (1.) a declaration that the respondent is bound to pay him and his successors in perpetuity an annual sum of Rs.482.0.3 in accordance with the terms of a permanent settlement made in 1865 of Mouzah Sahu; (2.) payment of Rs.17,352, being arrears of such annual sum from the date of settlement to March, 1901. The respondent contended that the condition as to malikana in the said settlement was inserted therein owing to mistake and misapprehension of the existing facts, and was not enforceable in equity; and that as the appellant was receiving from Government Rs.796.2.9, which was the entire sum due as malikana in respect of the whole Jaigir Meherullah Khan, of which Mouzah Sahu formed part, he was not entitled to additional malikana in respect of Mouzah Sahu. The question decided was whether, by force of the settlement of 1865, the said annual sum of Rs.482.0.3 was payable to the appellant in addition to the Rs. 796.2.9 referred to by the respondent. Mouzah Sahu formed part of a jaigir known as Jaigir Meherullah Khan, and was created in 1758 by the Emperor Alamgir. It was situated geographically within the limits of Sarkar Tirhut, and the appellants predecessor, to whom it belonged, was, owing to the jaigir having been granted out of his lands, entitled to an annual sum by way of compensation, called malikana or dasturat malikana. After the East India Company became Dewan, and in the year 1780, the sum of s.796.2.9 was fixed by parwanas as the malikana payable in respect of Jaigir Meherullah Khan, and that sum has been annually paid to the appellants predecessors in title since that date. The sum was a percentage on the net profits of the jaigir for the year 1185 F. (1778 a. d.), the items composing it being set out in a further parwana of the same date. On January 10, 1840, the Government, under decree of the Special Deputy Collector of Tirhut, made on that date under Regulation II. of 1819, and Regulation III. of 1828, resumed Mouzah Sahu. On January 10, 1840, the Government, under decree of the Special Deputy Collector of Tirhut, made on that date under Regulation II. of 1819, and Regulation III. of 1828, resumed Mouzah Sahu. Various temporary settlements in 1841 and 1845 fixed the amount of malikana payable in respect thereof, and in 1851, 1858, and 1859, the Government paid for about fourteen years the amount so settled in addition to the annual sum of Rs.796.2.9 fixed in 1780. In 1865 a permanent settlement was made. Prom 1859 to 1892 the additional malikana was not paid. The Court of Wards, as manager of the estate for part of that time, omitted to draw it, and the appellant alleged that he was ignorant of his rights. In 1892 he applied for payment of arrears to the Collector of Darbhanga. Both the Collector and the Commissioner of the Patna Division rejected the application. On April 16, 1897, Mr. Stevens, a member of the Board of Revenue, set aside these orders and directed payment of malikana at the rate fixed by the permanent settlement of 1865, with arrears from that date. In 1898 the Board of Revenue set aside Mr. Stevens order, and in 1900 restored the earlier order and rejected the appellants claim. The permanent settlement of 1865 was made in accordance with a proceeding (or rubokar) dated May 10, June 15, and July 16 of that year. The transaction, so far as it relates to malikana, being parts 5 and 6, referred to in their Lordships judgment, was as follows " During the last settlement proceedings, possession of Mussummat Najibunnessa Begam and Shah Abdul Ali having I been proved they were declared entitled to the settlement, and Maharaja Rudar Singh Bahadur was considered to be entitled to malikana. During the present proceedings (it is found that) the entire sixteen annas of the milkiat of this mouzah belongs to Maharaja Lachmeshwar Singh Bahadur under the Court of Wards in charge of the Durbhanga Raj. Two-thirds are proved to be in the possession of the said Maharaja and as to the remaining one-third Mussummat Dulari Kumar put forward claim for settlement of half, and Kishan Ballabh Mahta for the whole of one-third share. On local inquiry and investigation the possession of Kishan Ballabh Mahta over one-third has been fully proved, particulars of which are set forth in the English letter, dated May 2, 1865. On local inquiry and investigation the possession of Kishan Ballabh Mahta over one-third has been fully proved, particulars of which are set forth in the English letter, dated May 2, 1865. It is therefore declared that Maharaja Lachmeshwar Singh Bahadur, minor, is entitled to the settlement of two-thirds and Kishan Ballabh Mahta entitled to the settlement of one-third, and that Maharaja Lachmeshwar Singh, minor, is entitled to sixteen annas of the malikana. " Inasmuch as Maharaja Lachmeshwar Singh Bahadur, who was before entitled to malikana only, is now a possessor also, reference was made to the Collector by a letter of this office No. 73, dated April 20, 1864, as to whether malikana allowance should be made separate or not; in answer thereto a letter of the Commissioner No. 561, dated April 27, 1865, was received containing instruction to the following effect— malikana right cannot be extinguished, but there should be new arrangement and new rule so as to avoid the round-about way of payment of the malikana by the possessor and of the subsequent withdrawal of it from the Treasury. But that cannot be done in the case of this mahal because Maharaja Lachmeshwar Singh, minor, is possessor of two-thirds and Kishan Ballabh Mahta is possessor of one-third; and if two-thirds of the malikana be excepted in the fixed revenue and one-third be taken, this will cause loss to the said Maharaja, because the amount that will be excepted will be deducted from the entire interest; and the one-third share that will be taken will be chargeable to the possessors of sixteen annas. Until, therefore, the entire towzi (revenue account) be separated, this arrangement cannot be made. Therefore arrangement is made according to former practice. " The Subordinate Judge held that the rubokar was not a covenant made by the Government in favour of the appellants predecessor as expropriated proprietor, but a contract between the Government and the appellants predecessor in title and certain other persons with whom the settlement was made as owners of the jaigiri right in the mahal; that the persons with whom the settlement was made were not entitled to any malikana under clause 2 of s. 5 of Regulation VII. of 1822; that the conditions referred to were for payment by the holders of the permanent settlement of a sum of Rs.489 (sic) odd to enable the Government to pay the ancient malikana due to the appellants predecessor in title as such expropriated proprietor, and were not made in contravention of the provisions of Regulation VII. of 1822, nor under mistake, misapprehension, or inadvertence; and that the payments by the Government in 1851 to 1859 were made under mistake and misapprehension, and did not amount to any recognition of the appellants right to receive the additional amount claimed. The High Court in appeal called for further evidence as to the malikana assessed upon other mouzahs within the ambit of jaigir Meherullah Khan; and thereafter found that when the permanent settlement of Mouzah Sahu was made in 1865 no malikana allowance was permissible with reference to the provisions of Regulation VII. of 1822, s. 5, because Mouzah Sahu was not let in farm or held khas, but was settled with the proprietors of the jaigir. The Court also held that the consolidated sum of Rs.796.2.9 continued to be the malikana, and that the sum of Rs.482.0.3 was in that settlement allocated to Mouzah Sahu. It held it to be clear that the appellant could not get the sum of Rs.482.0.3 as malikana in addition to the sum of Rs.796.2.9 which was admittedly payable. De Gruyther, K.C., and Eddis, for the appellant, contended that he was entitled to the additional malikana claimed and that the same ought not to be regarded as a proportionate part allocated to Mouzah Sahu of the total amount payable in respect of the whole jaigir as fixed in 1780. The respondent was bound by the permanent settlement of 1865, which was clear and unambiguous, and could not in this suit revise or alter it or set it aside. Until the contrary was proved that settlement must be held to be regular and correct and binding on the parties thereto. There was nothing in the proceedings at the settlement or in the terms as finally fixed to shew that the malikana fixed thereby as payable in respect of Sahu was regarded as a portion of the total amount as fixed in 1780 for the whole jigir of which Mouzah Sahu formed part. It was further contended that the order made by Mr. It was further contended that the order made by Mr. Stevens dated April 16, 1897, was binding on the Government, and the order setting it aside was made without due authority and was ultra vires. The order of Mr. Stevens gives the detailed list of the properties assessed in 1780 in respect of the malikana of Rs.796.2.9, and there is no mention in that list of Sahu, from which Mr. Stevens rightly concluded that the malikana in respect of it was not included in the total sum then fixed. Reference was made to Haringtons Analysis, ed. 1817, vol. 3, pp. 243, 244, 344, 405, 410, 411, and 415 ; fifth report (1812) on the affairs of the East India Company by the Select Committee of the House of Commons; Shores minutes of September 18, 1789, pp. 451, 471; Baden Powell on Land Systems of British India, vol. 1, p. 516, Malikana; Mitras Land Law of Bengal, 1898, pp. 64,125, 126 ; Phillips Land Tenures of Lower Bengal, 1876, pp. 84, 197,204, 269; Regulation XXXVII. of 1793, preamble; Fields Regulations of the Bengal Code, ed. 1875, p. 261; Regulations II. of 1819, VII. of 1822, ss. 3, 5 (2.), IX. of 1825, s. 5 (5.). The settlement of 1865 was made under the authority of Regulation XXXVII. of 1793, while in 1780 such authority did not exist. The settlement was in perpetuity and fixed the charge of malikana for Mouzah Sahu in addition to or independently of the charge reserved in 1780 in respect of the whole jaigir. Sir Erle Richards, K.C., and Konstam, for the respondent, contended that the malikana of Rs. 796.2.9 was all that the appellant was entitled to in respect of the whole jaigir of which Sahu admittedly formed part. They referred to the parwana of February 24, 1780 and to the proceedings from 1844 to 1853 in the Revenue Courts in confirmation thereof. The claim to additional malikana is based on the permanent settlement of 1865. It was contended that the proceedings for that settlement did not provide for any additional malikana. They referred to the parwana of February 24, 1780 and to the proceedings from 1844 to 1853 in the Revenue Courts in confirmation thereof. The claim to additional malikana is based on the permanent settlement of 1865. It was contended that the proceedings for that settlement did not provide for any additional malikana. The appellant was not entitled to it, and the settlement proceedings were inopera tive -to confer a new title in respect thereof; and it was admitted by the appellant that neither he nor his predecessors had ever received or applied for any payment of additional malikana as now claimed, though some payments had been made, by mistake as the Court below had found, and to which the appellant had failed to explain the nature of his claim. The settlement of 1865 was not in the nature of a contract between the Government and the appellants predecessor in respect of expropriation. Sahu had been resumed in 1840 under Regulation II. of 1819. It was settled direct with the proprietors in 1865 under Regulation VII. of 1822 as applied by Regulations III. of 1828 and IX. of 1825, and therefore no malikana was payable to the proprietor. Under s. 5 (2.) of Regulation VII. of 1822 malikana is only payable to the proprietor where land is let in farm or held khas, and neither of these conditions was fulfilled in the case of Sahu. The sum which those proceedings mention as malikana payable to the appellant or his predecessors was not thereby made payable to him for the first time, but was referred to as allocated to Sahu in respect of the Rs.796.2.9 fixed as payable in 1780. Reference was made to Haringtons Analysis, vol. 3, p. 345 ; Mitras Land Law of Bengal, p. 126. The settlement of 1780 fixed a definite sum as payable for the whole jaigir, and not a variable amount dependent upon the profits. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD MERSEY. This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, dated February 5, 1907, confirming a decree of the Judge of Mozufferpore, dated December 17, 1903. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by LORD MERSEY. This is an appeal from a decree of the High Court of Judicature at Fort William in Bengal, dated February 5, 1907, confirming a decree of the Judge of Mozufferpore, dated December 17, 1903. The action was commenced on February 6, 1902, and it was brought to establish a claim on the part of the appellant to be paid an annual sum of Rs.482.0.3 by the Government to India by way of dasturat or malikana in respect of certain land known as Mouzah Sahu in the Tirhut district. The claim is based upon an order of the Court of the Assistant Collector of Tirhut, dated May 10, 1865, by which the appellant alleges that the annual dasturat or malikana payable to him in respect of Mouzah Sahu was permanently fixed at Rs.482.0.3. The answer to the claim is that the dasturat or malikana payable in respect of a mahal or jaigir, known as Meherullah Khan, was settled once for all as long ago as 1780 at Rs.796.2.9, and that as the Mouzah Sahu formed part of that mahal or jaigir nothing further is recoverable, and further that the order relied on does not give the right claimed. It is common ground that the Rs.796.2.9 has been regularly paid year by year to the appellant or his predecessors in title since 1780, and that it is being paid at the present time. It appears that one of the appellants predecessors in title was the proprietor of a large estate in the district of Sarkar Tirhut. About the middle of the eighteenth century the then Emperor Alamgir carved out of this estate several jaigirs or revenue-free holdings. One of these jaigirs was granted to a certain Meherullah Khan and was known by his name. It included the village known as Mouzah Sahu. The effect of the creation of these jaigirs was to diminish the owners income from his land, and thereupon according to custom the owner became entitled to receive an annual payment from the jaigirdars (the grantees of the jaigirs) calculated on the proceeds derived by them from the cultivation of their jaigirs. It included the village known as Mouzah Sahu. The effect of the creation of these jaigirs was to diminish the owners income from his land, and thereupon according to custom the owner became entitled to receive an annual payment from the jaigirdars (the grantees of the jaigirs) calculated on the proceeds derived by them from the cultivation of their jaigirs. This payment is described in the appellants ease (paragraph 5) as an allowance by way of compensation for the loss of the proprietors rights in the land, and is said to be known as "dasturat or malikana." After the creation of these jaigirs, namely, in 1765, the East India Company became Dewan of Bengal, and a question having arisen as to the amount of the dasturat or malikana to be paid by the jaigirdars, the Company in its capacity as Dewan, after inquiry, issued a parwana or order dated February 24, 1780, fixing the total amount " at Rs.22,821.12.3. By another parwana of even date the pro portion of this sum of Rs.22,321.12.3 payable in respect of Jaigir Meherullah Khan was ascertained at Rs.796.2.9. It is important to observe the wording of these two parwanas. The first is addressed to the amlas (collecting staffs) of the whole of the jaigirs. It recites a previous parwana of October 21, 1779, which had fixed the dasturat at Rs.23,339.6.3 " according to the actual proceeds for 1185 F.S." (corresponding with our year 1778) of the said jaigirs. It then states that a dispute had arisen about one item, that that item had accordingly been deducted, and that the balance Rs.22,321.12.3 had been " fixed as the amount of dasturat according to the details given on the back." It then proceeds as follows " You will, according to the above, continue to pay the dasturat, &c, to the amla of the Raja regularly every year from the year 1186 F.S. (1779)." On the back the amount to be paid in respect of each jaigir is set out, that for Meherullah Khan appearing as Rs.796.2.9. The second parwana is addressed to the amlas of Jaigir Meherullah Khan, and, after stating that the dasturat has been " ordered and fixed" on the actual gross proceeds of 1185 F.S. (1778), requires the amlas to pay the same "as per detail on the back to the amlas of the Raja regularly every year from the year 1186 F.S. (1779)." On the back the items making up the dasturat are set out. When added together they amount to Rs.796.2.9. Among these items is one described as " Mai (i.e., malikana) at 10 per cent. Rs.184.4.6." It is contended on behalf of the appellant that the fixing of the dasturat or malikana by these two parwanas was not a final ascertainment of the rights of the appellants predecessor in respect of dasturat or malikana, but was merely a temporary fixing of the percentage by which the amount should be ascertained from time to time; and that as the pro ceeds of the land varied so the amount of the dasturat or malikana would vary. This view was not accepted by either of the Courts below, nor is it in their Lordships opinion the right view. The wording of the parwanas points to a fixing of an amount and not of a mere percentage. No doubt the amount is arrived at on the basis of the proceeds for the year 1778, but it is the sum of money so arrived at (Rs.796.2.9), which is to be paid year by year in the future; not a varying sum dependent on the proceeds of the land. No term is fixed; the payment is to be made regularly every year from 1779 onwards. This appears to constitute a final settlement of the owners rights in respect of dasturat or malikana ; and that it was so regarded by the parties concerned seems clear from the fact that the payment was made thenceforward for a century without any suggestion that it was in any way wrong or was subject to revision. It is said, however, that subsequent events shew that the appellants contention is right. The jaigirs which had been created by the Emperor Alamgir were in course of time resumed by the Government of India. The last of them to be resumed was the Jaigir of Meherullah Khan. It is said, however, that subsequent events shew that the appellants contention is right. The jaigirs which had been created by the Emperor Alamgir were in course of time resumed by the Government of India. The last of them to be resumed was the Jaigir of Meherullah Khan. It was resumed in parts at different dates between 1886 and 1840, the last part to be resumed being that which comprised Mouzah Sahu. This part was resumed on January 10, 1840. The effect of the resumption was to transfer the obligation to pay the dasturat or malikana from the jaigirdars to the Government, and to vest in the Government the right to the revenues. Accordingly from 1840 the Government has paid the whole of the Rs.796. But it is said by the appellant that the Government has not only paid the Rs.796, but has also paid other additional sums on account of malikana for Sahu, thus admitting the right of the appellant to receive more than the Rs.796. That such payments were in fact made is not contested. They were made between the years 1857 and 1859, and amounted in all to Rs.6000 or Rs.7000. The respondent contends that these payments were made by mistake. The appellant adduced no evidence to shew the nature of the claim put forward for these additional payments nor the circumstances under which the payments were made; and at the very time that they were being made the Rs.796 payable by virtue of the parwana of 1780 was also being paid. The payments were made on the orders of the then Assistant Collector of Tirhut, who is described by Mr. Stevens (a member of the Board of Revenue) in his order of April 16, 1897, set out in the record, as " an officer of very short experience." The judge of the first Court below found as a fact that these payments had been made under mistake and misapprehension, and their Lordships see no reason for differing from this finding. The payments, therefore, become of no significance in relation to the present litigation. The payments, therefore, become of no significance in relation to the present litigation. It is further said that a permanent settlement of Mouzah Sahu together with other mouzahs was made on May 10, 1865, and that in such settlement the dasturat or malikana was fixed at Rs.489.0.3, and the point now in dispute as stated by the appellant in paragraph 11 of his case is whether this sum is payable to the appellant in addition to the Rs.796.2.9. The settlement in question will be found set out in the record. It begins by reciting a number of previous temporary settlements, the last of which appears to have been for twenty years from May, 1845, at an annual jumma of Rs. 2617.7.9, inclusive of malikana. This settlement would expire in May, 1865. It then proceeds, in parts 5 and 6, to deal with the question of malikana. It states that the whole of the malikana is payable to the Maharajah Lachmeshwar Singh Bahadur, one of the appellants predecessors in title, and in addition it finds that, since the last preceding settlement, two-thirds of the jaigirdars rights had been acquired by the said Maharajah, and that he is in possession of them. The Maharajah thus held a double position. He was the owner entitled to receive the malikana, and also the proprietor of two-thirds of the jaigirdars rights which involved the liability to contribute to the payment of the malikana. The settlement deals with this position. Part 6 is as follows " Inasmuch as Maharajah Lachmeshwar Singh Bahadur, who was before entitled to malikana only, is now a possessor also, reference was made to the Collector .... as to whether malikana allowance should be made separate or not; in answer thereto a letter .... was received containing instructions to the following effect—Malikana right cannot be extinguished, but there should be new arrangement and new rule so as to avoid the round-about way of payment of the malikana by the possessor, and of the subsequent withdrawal of it from the Treasury. But that cannot be done in the case of this mahal, because Maharajah Lachmeshwar Singh, minor, is possessor of two-thirds, and Kishan Ballabh Mahta is possessor of one-third .... therefore arrangement is made according to former practice." This is the only reference in the settlement itself to malikana, -and it is obvious that it refers exclusively to the method of payment. therefore arrangement is made according to former practice." This is the only reference in the settlement itself to malikana, -and it is obvious that it refers exclusively to the method of payment. It neither provides for any alteration of, nor for any addition to, the malikana already fixed in 1780. There is however, an account attached to the settlement in which the gross proceeds of the " main mahal" are stated to be Rs.5355. From this Rs.535, being 10 per cent., is deducted for malikana, and the balance is divided one-half to the possessor and the other half to the Government. In an outer column the malikana (Rs.535), less 10 per cent, for village expenses, is added to the sum payable in respect of the main mahal, and after taking into account certain other items, the result is brought down as follows — Mal. . . . 2461114 Malikana . . . . 489 0 3 Expenses repairing road . . . 27 7 0 The item 489.0.3 is an error. It ought to be Rs.482.0.3. (Rs.535, less 10 per cent.). The error is corrected in part 7, which fixes for the settlement a uniform annual jumma of Rs.2943, inclusive of malikana, from May 1, 1865, in perpetuity. This sum is arrived at by adding to the Rs.2461.11.4. above mentioned the correct amount, namely, Rs.482 for the malikana. It is suggested by the appellant that this account read in conjunction with the settlement, of which it is part, gives to the appellant a right to claim as malikana, apart from and in addition to the malikana accorded to him in 1780, the further sum of Rs.482. Their Lordships are of opinion that the account, whether taken alone or whether read with the clauses of the settlement, can bear no such interpretation. It is an account made up for the purposes of the settle ment only, and the references in it to malikana are made merely because the malikana is an item to be taken into account in fixing the annual jumma to be paid by the person in whose favour the settlement is made in respect of the mouzahs which are comprised in the settlement. That this is the right view to take of the settlement and of the account annexed to it is in their Lordships opinion confirmed by the fact that no claim was ever made by the appellant for payment of this malikana until 1892, twenty-seven years after the date of the permanent settlement, and that no such payment has ever been made to him. Their Lordships are of opinion that the appeal fails, and they will humbly advise His Majesty accordingly. The appellant must pay the costs.