TaxTMI 
TaxTMI 
1956 (2) TMI 56
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....51 (hereinafter referred to as "the Abolition Act") was, in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legislature and for an injunction restraining the State of Orissa from taking any action under the said Act. The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under section 3(1) of the Abolition Act declaring that the Rajgee of Kanika had passed to and become vested in the State free from all encumbrances. The High Court dismissed the suit but gave a certificate of fitness for appeal to this court. Hence the present appeal by the plaintiff. The plaintiff's contention before us is that no notification under section 3(1) of the Abolition Act can issue because (1) his land is not an "estate" as defined in section 2(g) of the Act, and (2) the plaintiff is not an "intermediary' within the meaning of section 2(h) thereof. In answer to this, the Attorney General, appearing on behalf of the State, makes five Submissions, viz., (a) that on the admitted facts the plaintiff's land is an "estate" within the meaning of the Abolition Act; (....
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....r one entry in the general register of revenue paying lands is not disputed. What is contended for is that in order to make such land an "estate" the register must be prepared and maintained under the law for the time being in force. There is no dispute that "the law for the time being ,in force" means the Bengal Land Registration Act (Bengal Act VII of 1876). The plaintiff contends that the register in which his land is included under one entry was not prepared or maintained under the Bengal Land Registration Act. The argument is that it is not only necessary to show that the land is included under one entry in a register but that it is also necessary to show that the register where the entry appears was prepared and maintained under the law. Under the Bengal Land Registration Act, 1876, land can be included in the register prepared and maintained under that Act only if such land is an "estate" as defined in that Act. The relevant part of that definition is:- "3(2) 'estate' includes:- (a)any land subject to the payment of land revenue, either immediately or prospectively, for the dis charge of which a separate engagement has been entere....
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....g is the list of the names of the zamindars to whom this provision is to be considered applicable: Zamindar of Killah Darpan, Zamindar of Killah Sookindah, Zamindar of Killah Muddoopore. XXXIV.-The Commissioners having likewise granted a sanad to Futtah Mohmed, jaghirdar of Malood, entitling him and his heirs for ever, in consideration of certain services performed towards the British Government, to hold his lands exempt from assessment, such sanad is hereby confirmed. XXXV. First.-The late Board of Commissioners having concluded a settlement of the land revenue with certain zamindars, whose estates are situated chiefly in the hills and jungles, for the payment of a fixed annual quit-rent in perpetuity, those engagements are hereby confirmed; and no alteration shall, at any time, be made in the amount of the revenue payable under the engagements in question to Government. Second.-The following is a list of the mehals to which the provision in the preceding Clause is applicable: Killah Aull, : Killah Humishpore, Killah Cojang, : Killah Miritchpore, Killah Puttra, : Killah Bishenpore. Third.-The zamindaries of Cordah and Cunka being mehals of the description of those specified i....
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....time any such revenue settlement as was contemplated by section XXXV(3) and that there was no separate engagement for payment of any land revenue at any time thereafter. The conclusion sought to be drawn in the circumstances is that as Killa Kanika was not subject to payment of land revenue., for the discharge of which a separate engagement had been entered into, it was not an "estate" as defined in Bengal Land Registration Act, 1876, and that that being the posi- tion, it could not have been validly entered in the register prepared and maintained under the Bengal Land Registration Act. The action of the Collector in entering Killa Kanika as a revenue-paying estate was wholly ultra vires and in the eye of the law such an entry is a nullity and does not exist. It follows, therefore, that Killa Kanika cannot be regarded as an "estate" within the meaning of the Abolition Act because the general register in which it is included cannot be said to have been validly prepared and maintained under the law for the time being in force. Section 4 of the Bengal Land Registration Act, 1876, directs the Collector of every district to prepare and keep up the four kinds of regi....
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....d in the schedule to the Act, then whatever was included in the schedule would be an "estate" within the meaning of the Abolition Act, irrespective of whether such land was or was not an "estate" within the meaning of any other Act. The same reasoning applies when the definition includes lands entered in the general registers prepared and maintained under the Bengal Land Registration Act, 1876. Here the reference to the register prepared or kept under the law for the time being in force was meant only to identify the particular register in which the particular land was included under one entry. Suppose that a )register prepared and maintained under the Bengal Land Registration Act, 1876, included lands which were "estates" within the meaning of the Land Registration Act and also lands which were not "estates" within the meaning of that Act. 'Suppose further that the Orissa Legislature by the Abolition Act intended to include all these lands, properly or improperly included in the register, what language would they then have used? Precisely the language they have used in section 2(g) of the Abolition Act, namely, that an "estate"....
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....ppel between the parties as a judgment whereby the court exercises its mind oil a contested case. Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50:- "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action". To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott and others(2):- "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order in the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal". The same principle ha....
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....ed on, amongst others, the following allegations. In paragraphs 3 to 6 of the plaint were pleaded that the plaintiff's ancestors were the rulers of Killa Kanika owing allegiance to the Hindu Gajapati Kings of Orissa and were absolute owners of all lands and waters within the ambit of their territories including the two rivers therein mentioned and that after the fall of the Hindu kingdom in Orissa, and during the Afghan, Moghal and Mahratha occupation of Orissa, the Rulers of Killa Kanika, the ancestors of the plaintiff continued to be the absolute owners of the Killa including the said rivers. In paragraph 7 of the plaint reference was made to the Engagement and Kaoolnama of 1803, whereby the Raja was said to have been confirmed in his Rajgee or proprietorship of the entire Killa and it was submitted that the said grant was intended to and did, in fact, confirm his title, to the said rivers. In paragraph 9 of the plaint, it was acknowledged that subsequently the status of the rulers of Killa Kanika was gradually reduced to that of a Zamindar and that. they were divested of all administrative powers, but it was claimed that nevertheless, their proprietary rights in the Killa co....
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....e following passage in the judgment of the Subordinate Judge-- "It is, therefore, too late now to suggest that the status of the plaintiff in relation to his Killa is something higher than or superior to that of a holder of an estate. In my view, it is of no consequence, as respects the point now under consideration whether the estate is a permanently settled estate or it is a temporarily settled estate. The question is whether the plaintiff is the holder of an estate or it is that he owns a State. But as I have just pointed out, a private individual cannot own a State in the sense a sovereign authority owns the same". After referring to the Regulations of 1805 and 1806, the learned Subordinate Judge proceeded to say: "Thus it is apparent that with the advent of the British the question of status of the plaintiff was never left in any degree of uncertainty. All these various Regulations taken together will go to establish in an unmistakable term, that the plaintiff's status in his relation to his Killa, was recognised from the time of the advent of the British in Orissa as that of a Zamindar, i.e., a bolder of an estate. That being so, in relation to these riv....
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....aforesaid and in the channel of waters flowing thereon, the Proprietor of Kanika Estate that is the plaintiff-appellant will have his rights to the ferries over the said rivers which he has been so far enjoying and except when such ferry rights interfere with the Crown's right in the bed of the rivers and similar rights in the waters on the channel of the rivers for the purpose of navigation and things of the kind, the Province of Orissa will not interfere with nor raise any objection to the plaintiff's enjoyment of such rights or ferry through the length and breadth of the aforesaid rivers. 4. That such Chars, islands or other accretions formed in the said rivers as have been shown in the Civil Court Commissioner's map prepared in this suit and now forming a part of the court's record shall be deemed as part and parcel of the permanently settled estate of Kanika and the defendant will not be entitled to any further assessment in respect thereof. 5. That all future riparian accretions or Chars formed adjoining the banks of the rivers in dispute shall also be always deemed to be part and parcel of the said permanently settled Zamindary of Kanika and shall be so pos....
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....is an "estate" within the meaning of the Bengal Land Registration Act, 1876, whereas the issue in the earlier case was whether the plaintiff 's predecessors had title to the river beds by express or implied grant from the Crown. This does not appear to us to be a fair reading of the pleadings as a whole. The plaint in the earlier suit summarised above and the passages culled from the judgment of the trial court clearly indicate that the parties went to trial on the definite and well understood issue that the plaintiff's claim to the river beds was founded on his anterior title as an independent Ruling Chief of Killa Kanika and that that title had been confirmed by the Engagement and Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied, by the East India Company. What the parties understood by the issues on which they went to trial is clearly illustrated by the passages quoted from the judgment. The fact that the claim in the earlier suit related only to a part of the land, namely the river beds, whereas the present case is that the entire land held by the plaintiff is not an "estate" makes no differenc....