GIRDHURLALL

without any objection, the answer stated, that if this 1859. had happened, it had happened without investigation, SUMBHOOLALL and that the right of the Government was not done away with, because it was agreed to pay this Huk to the Grasias alone.

The Defendant, Nusserwangee Pestonjee, put in an answer, insisting that his proceedings had been entirely regular, and that he was under no circumstances liable to any demand on the part of the Appellant. But the view which their Lordships take of this case makes it unnecessary for them to go into the particulars of his defence.

On the 14th of September, 1844, the Appellant filed his replication, in which he insisted, that if the Government had any objection to make to this sale, the Collector might and ought to have interposed to stop it, and to remove the attachment which had been previously laid upon the property, and that he was bound to adopt this course by the effect of the Regulation under which the sale had been made, and of the proclamation which had been issued in pursuance of it; that the tax of the Huks of the Grasias and of the Moguls used to be levied from the villages in the same way as the Government revenue; that these Huks were incorporated in the revenue, and that the Tora was fixed by the Government; that many Tora huks, and other Huks, had been sold by the Government Adawlut, and by the Collector; and that the names of the purchasers had been entered by the late Collector in the Government records, and the money for the same had been paid by the late Collectors, and was paid by the Defendant, the then Collector, up to this day.

There does not appear to have been any rejoinder,

VOL. VIII.

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V.

THE COLLECTOR OF

SURAT.

1859. and upon this state of the record the parties went into evidence.

SUMBHOOLALL

v.

GIRDHURLALL The Appellant proved the several proceedings
THE which had taken place previous to the institution of
SURAT. the suit which have already been detailed: he proved

COLLECTOR OF

some instances, and one in the Pergunnah of Orpad,
in which Tora garas had been the subject of sale, and
the purchaser had been put into possession of the
property, and was then in possession; and he specified
several other instances in which, as he stated, the
same thing had been done with respect to Tora garas,
and other Garas huks, and of which he alleged that
entries had been made in the books of the Defendant,
the Collector, and he required the production of these
books, and summoned witnesses, who were record-
keepers in the office of the Collector, to attend and
produce these documents.

It is with great regret that their Lordships are
compelled to observe that on looking at the deposi-
tions of two of these witnesses, it appears that these
documents were not produced, and that it is impossible
to avoid the inference that they were purposely with-
held by the agents of the Government defending the
suit on its behalf. It is, however, in the opinion of
their Lordships, sufficiently established that up to the
period of this sale these Huks had been the subject of
sale, and had been considered and treated by the
Courts of Justice and by the Government, in this
Collectorate at least, as liable to be dealt with like
any other species of property. That this had been
done without investigation, as the Collector in his
answer alleges, is certainly not the fact.

For many years before 1839, inquiries into this subject had been made by different officers of the

1

t

GIRDHURLALL

V.

THE COLLECTOR OF

SURAT.

Indian Government. The origin and character of 1859. these payments; the question whether the Govern- SUMBHOOLALL ment was bound to continue them, even to Grasias, or was at liberty to resume them at its pleasure; the expediency of exercising that right if it existed; the question whether the Grasia, if he had any right to receive them, enjoyed more than a life interest, and whether such interest as he had was capable of alienation; whether the collection of these payments by the Government was voluntary on their part, and could be discontinued at pleasure, or whether they were charges on the revenue, which the Government receiving the revenue was bound to pay ;-all these questions appear to have excited the attention of the Government; many of them as early as the year 1817, and to have been the subject of discussion and consideration for many years subsequently.

It further appears that in 1836, the liability of these Huks to sale, under the process of the Court, had come under the consideration of Mr. Lumsden, then Acting Assistant-Judge at Broach, another Zillah in this Province; that he had consulted Mr. Sutherland, a very high authority, who was then or had been Assistant-Judge at Surat, and that he received from that gentleman the following answer, dated the 29th of December, 1836" Sir,-In regard to your letter of the 19th instant, I have the honour to inform you there are very few instances of the attachment and sale of Tora garas; but there is no doubt when such description of property is possessed, a party having a decree against the property may attach and sell, in satisfaction thereof, Tora garas in like manner as any other description of property. Tora garas, like every other description of garas, is

1859.

Wuttun, but is entirely unconnected with hereditary or SUMBHOOLALL other office, and is consequently distinct from the GIRDHURLALL Regulations and Orders you have quoted. Tora garas

v.

COLLECTOR OF

THE is money-payment of a fixed nature on a village jampa, SURAT. and being usually the most secure description of garas, would be, no doubt, of the highest value in the market."

The Collector put in evidence, on the part of the Government, the certificates which had been returned by various Collectors as to the practice in their Collectorates, and the opinions entertained by them of the nature of these Garas huks; and two agreements, one entered into by Captain Robertson with the Grasias of the Pergunnah of Atroleea in the year 1818, and the other by Mr. Crawford with the Thakoors of Dehejaun in the year 1825; but with respect to the origin of the particular Tora garas in dispute, or of Huks of the same description in the same Pergunnah, no evidence was offered. The proceedings which had taken place in some suits after the institution of the present, were also put in evidence.

The case came for hearing before two Judges of the Zillah Court in succession, who were both of opinion that the Tora garas in question could not be enjoyed by any but Grasias; and that no decree could be made, either against the Collector or against Nusserwanjee Pestonjee.

It was then brought by appeal before the Sudder Dewanny Adawlut of Bombay, and after various proceedings which their Lordships do not think it necessary to go through in detail, a decree was pronounced by the Sudder Court on the 19th of December, 1849, by which the decree of the Court below was reversed, and a decree pronounced in favour of the

Appellant against the Collector, by whom all costs were ordered to be paid.

In October, 1851, the then Collector applied for a review of the decree: first, on the ground that according to the course of procedure then in force the question of the non-alienability of the Tora garas was not properly open to the consideration of the Sudder Court, but had been conclusively settled by the judgment of the Zillah; and secondly, that if such question was open, it had been erroneously decided.

This review appears to have been granted as a matter of course, without argument or reasons assigned by the Court; but nothing was done upon it till the month of April, 1853. At this time all the Judges of the Court who had heard the case argued, had been changed.

It is impossible to view, without jealousy, such a proceeding as this. The Government, which appoints the Judges, and removes them at pleasure, had raised a question of great general importance, which had been decided against it. Two years elapse before any application is made to the Court for a review of the judgment, and two more years elapse before the cause is brought on for rehearing before a new set of Judges.

Upon the matter being brought before them, these Judges were of opinion that the only question open to the Court was, whether, assuming the Tora garas not to be alienable, which they held to have been concluded by the decree of the Zillah Court, any demand could be made against Nusserwanjee Pestonjee to refund the purchase-money. The decision of the Sudder Court of 1849 was reversed

1859.

SUMBHOOLALL
GIRDHURLALL

V.

THE COLLECTOR OF

SURAT.