Judgement Appeal from a judgment and decrees of the High Court (June 4, 1913) modifying a decree of the Subordinate Judge of Cuttack. The suit was instituted by the appellants claiming, inter alia, to eject the first respondent from certain lands in Khurdah. They alleged by their plaint that the first respondent held the lands in question as sarbarakar in the service of themselves and their co-sharers, mathdharis to whose predecessors in 1861 the lands had been granted by the Government revenue free ; that it was his duty to collect the rents due from occupiers of lands from them and that he was liable to be dismissed for misconduct; that he had assumed to be proprietor of the lands, collecting rents and misappropriating them ; and that he had been properly dismissed. The first respondent by his written statement denied the facts alleged and claimed to be a tenure-holder of the lands in question. The Subordinate Judge held that the first respondent was not a tenure-holder, but was a sarbarakar liable to be dismissed for misconduct, and that he had been properly dismissed. He declared the proprietary title of the appellants and decreed that they and their co-sharers should have khas possession of the lands in suit, with the exception of 30 acres which he found to be raiyati land, unless the first respondent should within two months execute in their favour a 21 Law Rep. 45 Ind. App. 246 ( 1917- 1918) Paramanandra Das Goswami V. Kripasindhu Roy 122 kabuliyat as sarbarakar u|>on certain specified terms, The High Court, upon appeals by both parties, held that the first respondent was a tenure-holder, and, save in so far as the proprietary title of the present appellants had been declared, reversed the decree of the Subordinate Judge. 1918. June 20, 21. De Gruyther K.C. and Parikh for the appellants. The first respondent had no heritable or transferable right in the lands; he was not a tenure-holder. [Reference was made to Selections from Correspondence on the Settlement of the Khurdah Estate in the District of Puri," vol. 1, pp. 12, 58, 105, 119, 139, 149, vol. 2, pp. 20, 25 (et seq.), 43 (et seq.), 187, 233, 258 ; Bengal Tenancy Act (VIII. of 1885), ss. 101, 102, 103 B, 106 ; Act X. of 1859, ss. 25, 78.] Sen for the respondents. 1, pp. 12, 58, 105, 119, 139, 149, vol. 2, pp. 20, 25 (et seq.), 43 (et seq.), 187, 233, 258 ; Bengal Tenancy Act (VIII. of 1885), ss. 101, 102, 103 B, 106 ; Act X. of 1859, ss. 25, 78.] Sen for the respondents. The first respondent as sarbarakar was a tenure-holder and had permanent rights. [Reference was made to Hunters " Orissa," vol. 2, pp. 63 (et seq.), 222 (et seq.), 261, 265; Toynbees " History of Orissa," appx., pp. 100, 169 (minute by Stirling), p. 24 ; Baden Powell, " Land Revenue in British India," p. 173; "Selections" (as above), vol. 1, p. 119; Mills Report on Settlement of Cuttack; Ricketts Report on Settlement of Midnapur ; Bengal Regulation VII. of 1822, s. 4 ; Bengal Regulation XII. of 1805; Act X. of 1859, s. 78; Orissa Tenancy Act (II. of 19J3), s. 15, sub-s. 1 ; Haddanando Maiti v. Nowrattam Maiti. (8 Beng. L. R. 280.)] De Gruyther K.C. in reply. The case cited referred to a sarbarakar in Cuttack, and is distinguishable. July 26. The judgment of their Lordships was delivered by SIR JOHN EDGE. (The object of this report is to record their Lordships judgment as to the position of. sarbarak ars in Khurdah; the details of the dispute are therefore omitted from the judgment.) [The judgment, after stating fully the pleadings and the effect of the decrees made in India, continued as follows] The learned judges on the appeals considered historically the position of sarbarakars in Khurdah from the insurrection in 1817 of Jagabandhu Mahapatra, the hereditary Bukshi or commander of the forces, to the Raja of Khurdah down to the present time, and relied mainly for the information on which they acted on the " Selections from the Correspondence on the Settlement of the Khurdah Estate, in the District of Puri," vol. 1, published in 1879; vol. 2, published in 1881. The mauzas which were in 1861 granted revenue free to the Mathdharis were in and prior to 1818 and thence until 1861 khas mahals in proprietary possession of the Government, by whom the sarbarakars were appointed. It is not necessary for their Lordships to refer to all the reports and papers contained in the "Selections," to which their attention has been drawn at the hearing of this appeal. It is not necessary for their Lordships to refer to all the reports and papers contained in the "Selections," to which their attention has been drawn at the hearing of this appeal. They will refer to those of them only which they consider to be the most important. Mr. Forrester, who was the Deputy Collector in special charge of Khurdah, in his report of October 17, 1819, on the then settle ment, stated that he had in general admitted as sarbarakars the persons who had entered into engagements at the preceding settlements, and had reverted to the rates fixed for the different classes of land in the different villages by Gholam Kadir in 1806, that the sarbarakars were bound by their engagements to adhere to those rates, and not to charge more than 4 annas per man on new cultivation, and they had no proprietary right in their villages (" Selections," vol. 1, p. 105). Mr. Forrester also in his report referred to the general resumption of jagir lands after the rebellion of Raja Mukunda Deo and his followers. The Governor-General in Council confirmed Mr. Forresters settlement, which was for a term of years. Mr. Wilkinson, who had succeeded Mr. Forrester in charge of Khurdah, in a report of October 24, 21 Law Rep. 45 Ind. App. 246 ( 1917- 1918) Paramanandra Das Goswami V. Kripasindhu Roy 123 1836, on a settlement which he had made, stated that he had "taken from the old sarbarakars engagements for the payment of the aggregate of the raiyati rents, less 20 per cent, in lands and money, and that in this 20 per cent. he had included the assessed or estimated rents of the jagirs reserved for delabeharas and dalais by Government order." He added that the delabeharas were removable for misconduct and claimed no proprietary rights (" Selections," vol. 1, p. 123.) On August 22, 1837, the Government confirmed that settlement of Mr. Wilkinson, and stated its agreement with Mr. Halliday, then member of the Board of Revenue, " that neither the engagements (of the sarbarakars) with Government nor, of course, the lands by which the service rendered is remunerated, should be matters of inheritance and liable to subdivision among heirs " (" Selections/ vol. 1, p. 136). Wilkinson, and stated its agreement with Mr. Halliday, then member of the Board of Revenue, " that neither the engagements (of the sarbarakars) with Government nor, of course, the lands by which the service rendered is remunerated, should be matters of inheritance and liable to subdivision among heirs " (" Selections/ vol. 1, p. 136). The orders of the Government were on September 15, 1837, forwarded by the Board of Revenue to the Commissioner with the following instructions " You will cause it to be distinctly notified to the sarbarakars that at the expiration of the present settlement Government will select its own engager, whenever they may choose to exercise the right so to do, and that the present incumbents will be held liable to dismissal for default or bad behavior satisfactorily proved before the local authorities. It is very desirable that in all future cases individuals only should be acknowledged and allowed to treat as sarbarakars" (" Selections," vol. 1, p. 133). In his report to the Board of Revenue of October 5, 1880, Mr. Metcalfe, then Commissioner of Orissa, stated in relation to Khurdah; "The Government revenue of Khurdah has hitherto been collected by (1.) sarbarakars proper, (2.) by proostics, and (3.) by reportdars. The first enjoy jagir lands, and enjoy rents of lands brought under cultivation during the period the settlement runs. The second are sarbarakars of homestead lands, who, as a rule, do not enjoy jagir lands.....No one of the three classes has any proprietary or hereditary rights" (" Selections," vol. 2, p. 258). The reports and papers in the " Selections " from the correspondence relating to the settlements in Khurdah have satisfied their Lordships that sarbarakars in Khurdah had under the Government no heritable or transferable right in their office of sarbarakar or in the sarbarakari jagirs; that they were liable to be dismissed for misconduct, and that on dismissal they lost all right to occupy any sarbarakari jagirs ; and that on the termination of a settlement they were bound to enter into a fresh engagement with the Government if they wished to be continued in the office of sarbarakar. When the Government in 1861 granted the mauza revenue free to the Mathdharis a settlement had in 1857 been made, and the sarbarakars, including the first defendants father, Brindaban, had entered into engagements by kabuliyats with the Government for the period of the settlement, and the grant to the Mathdharis was subject to those engagements of the sarbarakars. That settlement terminated in 1880. Brindaban died in 1889. The statements in the suits in which Brindaban was concerned, which are referred to in the judgment of the High Court, do not alter the conclusions as to the position of sarbarakars in Khurdah which are to be drawn from the reports and papers in the " Selections." The High Court came to the conclusion that it was clear that from 1818 onwards the tendency of the Government and of the majority of its officers was to regard the sarbarakars in Khurdah as mere office-holders, and that in practice their position was hereditary. The High Court held that the first defendant was a tenure-holder, and by its decree in the appeal in which the plaintiffs were the appellants dismissed their appeal. In the appeal in which the first defendant was the appellant the High Court by its decree affirmed the decree of the Subordinate Judge in so far as it declared the plaintiffs title as proprietors of the two and half mauzas in suit; declared that the first defendant was a tenure-holder; and in other respects set aside the decree of the Subordinate Judge and dismissed the suit. 21 Law Rep. 45 Ind. App. 246 ( 1917- 1918) Paramanandra Das Goswami V. Kripasindhu Roy 124 On the hearing of this appeal counsel for the first defendant contended that the decision in 1871 of the High Court at Calcutta in Saddanando Haiti v. Nowrattam Haiti (8 Beng. L. R. 280.) was an authority which showed that sarbarakari tenures in Cuttack are permanent, hereditary, and transferable. 246 ( 1917- 1918) Paramanandra Das Goswami V. Kripasindhu Roy 124 On the hearing of this appeal counsel for the first defendant contended that the decision in 1871 of the High Court at Calcutta in Saddanando Haiti v. Nowrattam Haiti (8 Beng. L. R. 280.) was an authority which showed that sarbarakari tenures in Cuttack are permanent, hereditary, and transferable. Apparently that decision was not brought to the attention of the Subordinate Judge or of the High Court in this case, possibly because it does not appear that the lands the rent of which was in that case sought to be enhanced were situate in Khurdah ; possibly because it does not appear on what finding of the Court of first appeal or on what evidence, if there was any, as to the position of sarbarakars in Cuttack the High Court came to the conclusion that sarbarakari tenures in Cuttack were permanent, hereditary, and transferable. That case before the High Court was a second appeal. Their Lordships agree with the Subordinate Judge that the first defendant was not a tenure-holder ; that he was liable to be dismissed for misconduct from his office of sarbarakar ; that he was rightly dismissed from that office, and that on his dismissal he ceased to be entitled to hold the sarbarakari lands in mauza Bande ; and that, except as to the sarbarakari lands in mauza Panasabasta, the plaintiffs were entitled to the decree in ejectment and for possession, and to the declaration of title which the Subordinate Judge by his s decree gave to them. The plaintiffs have failed to prove any title in them to the jagir lands in mauza Panasabasta. Their Lordships will humbly advise His Majesty that this appeal should be allowed. [The details of the Order advised were then stated.] The first defendant must pay the costs of this appeal.