P L D 1967 Lahore 533 (PLP)

K. E. CHAUHAN, J.‑Mr. George Constable Chill, a pensioner v from Salt Department was given a grant of a tract of land measuring 3,000 acres by the then Government of the Punjab on y the 1st of October 1864. A copy of the deed of grant has been filed in the form of Annexure "A", which runs as follows: "Know all men by these presents that the Government of the Punjab has conferred on George Constable Chill, son of Samuel Chill, his heirs, executors, administrators and assignees the grant of a tract of land measuring British statute acres 3,000 situated in the Sub‑Collectorate Shahpur in the district of Shahpur to be holden by him in full proprietary right subject to the following conditions:‑ (1) The purchase money of this grant is Rs. 10,400 (ten thousand and four hundred) of which Rs. 1,625 (one thousand six hundred twenty‑five) have been paid on the first January 1865, if the entire purchase money has not been paid up interest at 10 per cent. per annum will be charged on the balance and thereafter not being more than ten years from the date of sale until the entire purchase money be paid up. Such interest will be chargeable on all unpaid arrears of the purchase money, and all payments by the grantee shall be carried to credit of any outstanding arrears of interest due on such purchase money. The land will remain hypothecated as security for the discharge of the principal and interest of the purchase money and be liable to sale if the said amount be not discharged within the stipulated period. (2) Arrears of interest shall be treated in the same manner as arrears of land revenue and be subject to the same measures of realization. (3) No transfer of proprietary right will be recognised by the Civil Courts or by the Revenue Officers of Government unless duly registered. (4) The right of the public to thoroughfares traversing the grant is not to be interfered with. The grantee is to contribute on the same terms as other landholders for the consideration and repairing of high roads but will have no claim on Government for making or repairing private roads. (5) The grantee is to erect permanent boundary marks round his grant and to keep them in a state of repairs. (6) The grant conveys plenary rights to all products both above the surface and below the same. But wherever any person have been accustomed to use or consume the spon taneous products of the soil the grantee shall not interfere with them so long as they do not trespass upon or otherwise injure, the cultivated portion of the land. (7) The grantee will be responsible for the police and con servancy of his grant to the same extent as other land‑holders are for theirs and he will keep up such establishments for the purposes as may be required by the general rules in force. (8) The grantee will be liable for all ceases imposed upon landholders generally; and where these are levied by percentages on the revenue 10 per cent. upon the purchase money shall be for the present assumed as the revenue of the estate, for the purposes of this calculation Government, however, reserves to itself the right to prescribe by enactment such modified rules on this point as may hereafter appear expedient. (9) Arrears on account of Road fund, Chaukidar's salary or any other cess may be realised by distraint of the crops or other property of the grantee. (10) The precriptive (sic) right of other proprietors in streams running through or bounding the estate will be maintained for purposes of irrigation or navigation used for the transport of timber or other property and for other purposes of general utility. The Government reserves to itself the right which it every share (sic) possesses on all such streams whether for purposes of irrigation or navigation and wherever it sees fit can assume to control of the waters and distribute them in such a way and on such conditions as may seem most conducive to the public good. (11) The lands included in this grant are shown in the subjoined table. (12) On the payment of the purchase money in full with all arrears of interest, the grant will belong to the grantee free for ever from all demands on account of land revenue. 1st October 1864. By order of the Hon'ble the Lieutenant Governor, Secretary to Government Punjab."

2. The petitioners are successors‑in‑interest of the original grantee. On the 4th of February 1952, was promulgated the Punjab Abolition of Jagir Act, IX of 1952 (hereinafter called the Act), which abolished all Jagirs and directed that after the enforcement of that Act, all Jagirs shall cease to be operative and p, all rights which had accrued to any holder of a Jagir shall forthwith terminate. The Act further said that no compensation ‑was to be paid to any person who was affected by its provisions C (it is to point out that the Act did not apply to Military Jagirs or Jagirs in favour of any religious or charitable institution, which is not the case here).

3. Since in the grant made to Mr. Chill, there was a stipulation to the effect that after a certain event that is the payment of purchase money in full with all arrears of interest: "The grant shall belong to the grantee free for ever from all demands on account of land revenue." it was considered that this release of land revenue was in the form of Jagir and, therefore, considering that this Jagir like all other Jagirs, has come to an end, respondent No. 2 (Tehsildar) made a demand of Rs. 12,916 as arrears of land revenue from the petitioners vide Annexure B. The petitioners have come up in writ petition to this Court under Article 170 of the late Constitution for issuance of an appropriate writ, direction or order to restrain or prohibit the respondents from imposing or collecting any land revenue on the aforesaid estate of the petitioners.

4. The first point urged by Sh. Khursheed Ahmad, learned counsel for the petitioners was that concession of holding the estate as "land free" did not constitute a Jagir and, therefore, there was no question of its abolition or ceasing to be operative. The word "Jagir" is defined in section 2(i) of the Punjab Abolition of Jagirs Act, 1952, and reads as follows:‑

2. Definitions.‑In this Act unless there be anything repugnant to the subject or context‑ (i) "Jagir" includes‑ "(a) any grant of money made or continued by or on behalf of the Crown which purports to be or is expressed to be payable out of land revenue, or any assignment or release of land revenue made by a competent authority before the passing of the Punjab Jagirs Act, 1941, or made or deemed to have been made under the said Act;" and "(b) any estate in land created or armed by or on behalf of the Crown for the sole purpose of enabling the person in whose favour it is created to collect or receive land revenue or any portion thereof." It will be appreciated that the Legislature has used the terminology that "Jagir" includes (such and such things which follow after this phrase). It is well‑settled that when in any statute word "include" or "includes" is used, then it is intended to enlarge 4 the ordinary meaning of that word. It was so pointed out in (1895) A C 99). Similarly in Emperor v. Jiand and another (A I R 1928 Sind 149) De Souza, A. J. C., wrote as follows:‑ "It is a well‑known rule of interpretation that the word includes' is used as word of enlargement and ordinarily implies that something else has been given beyond the general language which precedes it; to add to the general clause a species which does not naturally belong to it, State v. Montello Salt Co. (98 Pac. 549)." In the same authority Aston, A. J. C,, wrote as follows: "The phrase shall include is, as :aid by Lord Watson in Dilworth v. New Zealand Commissioner of Stamps 1899 A C 99, used in order to enlarge the meaning of words or phrases occurring in the body of the statute, and where it is so used these words or phrases must be construed as comprehending not only such things as they signify according to their natural import but also those things which the interpretation clause declares that they shall include." Keeping in view the above principle, we have to find as to what is the ordinary meaning of word "Jagir" and whether the grant to the extent that it allowed Mr. Chill to hold the land free from payment of land revenue constituted a Jagir or not. Translated in another way, the deed shows that along with the soil of the land, the Government also gave to Mr. Chill the grant of the land revenue. It is the nature of this grant which we have to determine in this case.

5. In the Glossary of Judicial and Revenue Terms by H. H. Wilson, Librarian to the East‑India Company and Boden Professor of Sanskrit in the University of Oxford (Edited by A. C. Ganguli M. A. and N. D. Basu, B.L. 1940 Edition) at page 349 the word "Jagir" has been described as follows:- "JAGlR (Jagir), also allowably, JAIGIR, (Jaigir), corruptly, Jaghir, Jagheer, Jaghire, Jagheer, (H) JAGIR (Jagir), JAHGHIR, (Jahgir) JAHAGIR, (Jahagir), (Mar., Karan) lit. Taking or occupying (gir) a place or position (Ja, or Jai). (The word 'Jagir' is supposed to be derived from `Jai' a place, and geruftun , to lay hold of. A Jagir is known to be merely a life rent tenure but it is stated to convey a rent free title. A Jagir, when given in land, is known in Mohammedan Law, by the name of anktaa, from kutta to cut; signifying a portion cut off for a particular purpose. Jagir may be said to be a military tenure." Galloway traces its origin to Timur, whose practice it was to give assignments of revenue or yurleegh to his omrah and mingbaushis (officers of horse), who received sixty times, the pay of a trooper)." "A Jagir which consists of revenue‑free land is an estate see section 3, clause (1), ante, page

47. A Jagir consisting of a grant of rent‑free land made by a proprietor or permanent tenure‑holder may be a service‑tenure, or an ordinary tenure or holding, according as it falls under one or other of the definitions of these terms in the Bengal Tenancy Act." Mr. Field observes: Jagirs were grants of lands to retainers still in service, in lieu of wages. When granted by the Emperor, they were assignments not of the land but of the revenue and were made as an appendage to the dignity of mansub, a kind of nobility conferred for life and revocable at the Emperor's pleasure, . . . . (per Finucane and Amir Ali's B. T. Act.‑ Eds.) A tenure common under the Muhammadan Government, in which the public revenues of a given tract of land were made over to a servant of the state, together with the powers requisite to enable him to collect and appropriate such revenue, and administer the general Government of the district. The assignment was either conditional or un conditional; in the former case, some public service, as the levy and maintenance of troops, or other specified duty, was engaged for the latter was left to the entire disposal of the grantee (In the minute of Sir John Shore a jaghir is defined to be an assignment in land or money for the support of a certain dignity and for the troops annexed thereto. It was either conditional or unconditional. The former implied that it was granted for the expenses of a particular office or station, the latter that it was independent of any office or station being appropriated for the maintenance of a dignity, a suitable number of attendants and the effective troops annexed to it. Eds. The assignment was either for a stated term, or, more usually, for the lifetime of the holder, lapsing on his death, to the state although not unusually renewed to his heir, on payment of a nazarana, or fine and sometimes specified to be a hereditary assignment; without which specification it was held to be a life‑tenure only: Ben. Reg. XXXVII, 1793. Clause

15. A Jagir was also liable to forfeiture on failure of performance of the conditions on which it was granted, or on the holder's incurring the displeasure of the emperor. On the other hand, in the inability of the state to vindicate its rights, a Jagir was sometimes converted into a perpetual and transferable estate; and the same consequence has resulted from the recognition of sundry Jagirs as hereditary by the British Government after the extinction of the native Governments by which they were originally granted; so that they have now come to be considered as family properties, of which the holders could not be rightfully dispossessed and to which their legal heirs succeed, as a matter of course without fine or nazarana, such having been silently dispensed with. This is particularly the case in the Maratha territories, in which, when first conquered, Jagir, grants were found to be numerous, reducible to three classes‑1. those held by descendants of the original ministers of the Rajas, as the Pratinidhi and the Pradhans, the prior to the usurpation of the Peshwa, but continued, in some instance, under his rule; 2 those held by military chiefs, on conditions of service, some of whom have held their fifs from the time of the Mohammadan monarchies; and 3, those held under grants from the Peshwas, generally Brahmans or Marathas of low family; they were all allowed to retain their lands on the principle of securing their services on a moderate scale, preserving the sovereignty of the British Government entire and interference with the chiefs on extraordinary occasions only. With regard to the Jagir in general, the especial object and character of the grant was commonly specified by the designation attached to it, as in the following examples: see also Ben. Regs. XXXVII, 1793, XLII, 1795, XXXVI, 1803, XIII 1825, Bomb. Reg. XVII 1827 X, cl. 38 Reg. VI, 1833. The term is also in use, although with some licence, to designate temporary grants, allowances, or stipends, from the Government to individuals. (The etymology of the terms is not consistent with the sovereignty enjoyed by a feudatory, though it may be admitted that the term is applied more frequently to tenures which do not partake of the sovereignty. The circumstances of India in the 18th century were such that the names of forms of Government or rulers would afford little indication of their actual sovereignty or attributes. The conquered Rajahs or the appointed subadars, though still professing themselves dependent, had ceased to pay any real obedience or submission to the Mughal, Lachmi Narain v. Raja Portab I L R 2 All. 1(21). Prima facie it is an estate only for life although it may be granted in such terms as to make it hereditary Gulab Das v. The Collector of Surat I L R 3 Bom. 186 (P C). It is not alienable beyond the life of the actual holder, although he held it to be an hereditary one. Dasibai v. Ishwardas, I L R 9 Born.

561. In the Punjab, the terms `Jagir' is ordinarily not land. Maya Das v. Sardar Gurdit Singh 167 P L R 1922=146 P W R 1912=16 1 C

855. The grant of a Jagir by the then King of Oudh to his eldest son was held, by the Chief Commissioner, after annexation of Oudh by the British Government, to have conferred a heritable and transferable estate. The duration of the grant was to last as long as the grantee had lineal descendants existing and the grant was to lapse or to be resumed on the happening of any of the contingencies specified therein and on no other. Hussain Ali Mirza v. Ahmad Azim Khan 18 O C 168=31 I C 728‑Eds.) Jagir‑i‑Ahsham, (H), Lands granted for the maintenance of troops. Jagir‑amal (Mar.) The share of the revenue claimed by the Moghul Government for the exchequer on certain holders of Jagirs after deducting the Maratha Chauth, and another fourth, or 25 per cent., for the Faujdar. Under the Peshwa and the British Government it denotes, in some districts, the right to the revenue which remains after deducting the Sardes mukhi and Chauth; in others after deducting the Mukhasa portion of the Chauth only. Jagir‑i‑bakhshl, (H) An assessment for the support of the Paymaster‑General or Commander‑in‑Chief. Jagir‑diwani, (H) The grant of the collection of the revenues of Bengal, Bihar and Orissa to the Company. Jagir‑khidamati, (H) Assignment'of land to village servants and officers. Jagir‑mahal, (H) A district assigned. Jagir‑mashrut or sharti, (H) A Jagir granted with conditions. Jagir‑ghair‑mashrut, or bila‑shart, (H) An urconditional or absolute assignment. Jagir‑i‑nauvara, (H) An assignment for the expense of keeping up an establishment of boats by the Nawab of Dacca in former times. Jagir paikan, (H) (See Paik) land granted to military retainers and militia in Cuttack on the tenure of military service. Jagir‑saranjami, (Mar.) An assignment for a specified purpose, as Fauj‑saranjami. Jagir an assignment for the equipment of troops. Jagir‑i‑sar, or sir, (H) Assignment for the support of an establishment. Jagir‑i‑siyur‑ghal, (H) An assignment exempt from any conditions, or for charitable purposes. Jagir‑i‑sarkar, (H) The tract originally granted to the Company by the Nawab of the Carnatic, as an assignment for the maintenance of their troops. Jagir‑i‑thanajat, (H) An assignment for the support, of police stations or thanas, or for that of a local militia. Jagir‑i‑tan, (H) An assignment for personal support, usually unconditional but sometimes requiring personal service. Jagir‑i‑zat, (H) Jagir‑jati, or jata, (Mar.) An assignment for personal support or sometimes requiring personal service. Jagirdar. (H) The holder of any assignment of revenue for his power in the Bombay Presidency, see Bomb. Reg. XIII, 1830 and Act XIII, 1842." Jagirdari, (H) The possession or rights of the holder of a Jagir. Jagir‑or Jagirdari‑sanad, (H) The deed or patent under which a Jagir was granted under the Mohammadan Government."

6. In B. H. Baden‑Powell's. The Land Revenue and Tenure in British India "(1907 Oxford Edition) and account and history of Jagirs is given at various pages". At page 52, the learned author, under the heading "Revenue free lands and Revenue assignments" writes as follows: "Revenue free lands Lakhiraj. ‑Besides lands that are not assessed to Land Revenue there are others on which the payment ordinarily leviable is either remitted or made payable to some grantee. At all times the rulers of Indian States have been accustomed to remit the Land Revenue on certain lands, or to make such grants or assignments. Lands that were expressly granted in this way, were in Revenue language said to be Lakhiraj. (Arabic la =not, and khiraj=the land tax under the Moslem Law). Alienated Lands. ‑In Bombay and Madras such lands are now generally called `alienated lands'; and this term may be found in use in other places also, but not generally. It really pointed back to a time when the Government claimed to be (and was to some extent) owner or landlord of all land, as well as of the Land Revenue. When, therefore, the Government gave up its right to take anything from the land, in favour of a grantee, it was said to alienate the land, as it had no further concern with the soil or its revenue and it came to pass that such grantees were always held to have a perfect title to the land itself as well as to the revenue. How far such grants affect the title to the land itself.‑The Mughal rulers formally distinguished such grants into two classes‑those which gave a title to the land (milk) and those which only assigned the revenue. A very common class of `milk' grants was made in favour of pious and learned persons or reputed saints, or for the support of a school, a mosque, a temple or some tomb or shrine; here either a bit of land was granted revenue‑free, or the land was already owned by the grantee and the revenue was remitted the term mu'afi (Arabic‑pardoned) or in'am (reward or benefaction) was used for such grants. In this way also the official holdings of land enjoyed by village officers in some districts (as remuneration for their services) were allowed to be held free and village servants had their petty grants in payment for their service (sweeping, water‑carrying, shaving, &c.). "In some States provision was made by petty grants of this kind for the support of the families of soldiers who had fallen in the Raja's service. But in fact, there are very many varieties and quite a host of local names for such free holdings; the names having reference to the origin or purpose for which the grant was made. Mughal system of Revenue assignments or Jagir.‑But besides these smaller and special grants (which were hereditary as long as the family survived or the purpose of the grant continued) the native Governments always and everywhere had been in the habit of making over tracts of land and assigning the revenue of them (as shown in the public accounts) to some person on condition of military or political service of some kind. This was regularly done in the case of Mughal Officers of State, each of whom held a mansab, i.e., a title with an assignment of revenue (so many rupees per annum) to support his dignity and also to maintain a certain number of troops, which he had to call out when he was required to join the Imperial Standard in war or on ceremonial occasions, or for duty at Court. Very often frontier tracts, or those which were troublesome to manage were made over in this way to military chiefs or others capable of developing the district and then the amount of revenue assigned was probably merely nominal ; the holder was expected to make what he could, by extending cultivation and founding new villages. He had the right to apply to his own purpose the proceeds of the Land Revenue which he realized, on condition that he maintained the necessary military or police force for keeping the peace and that he made due provisions for the administration generally. This class of assignment was called jagir. At first the grant was only for life (unlike the grants first named) but in later times it was allowed to become hereditary. We are here only concerned to note that, owing to these institutions, large areas of land, to this day, pay no revenue to the State. Confusion caused by irregular and invalid grants‑When our Revenue Settlements began, the number of claims to revenue‑free holdings, in one form or another, was enormous; and it was found a very difficult matter to deal with them. For in the days of disorder, such grants had been greatly abused; they were issued by impecunious Governors who had no other way of meeting claims on their empty treasuries; they were issued by subordinate officials who had no right to make them; and worst of all, they were often fraudulent, intended only to keep money out of the Treasury; in short they threatened to eat up a large portion of the Provincial Land Revenue. As far as the liability to Revenue was concerned, it was entirely a matter of option to the new Government, whether it would recognize any such grants at all and whether it would remit (or assign) the Revenue in future or not. But all the Provincial Government desired to act liberally and equitably; they all, in fact, recognised such grantees as had a real claim to consideration. As for any right in land which the grants conveyed, or which they had given rise to, that was a question for private litigation in case there were rival claimants. (The right in land acquired by such grants is considered later on when we come to the Land Tenures)." Then at page 115 under the heading "Estate arising out of Grants in various forms", the learned author writes as follows:‑ "We have two main kinds of grant to consider, one where the land, either waste or abandoned by former cultivators, was given on a direct title; the other where a grant of some Revenue privileges was originally made and the right to the land has grown out of it, by a process practically the same as that by which the Revenue‑farmer became landlord. Direct grants of waste or abandoned land.‑Under this class will also come those grants of waste land that were made in the earlier periods of British rule under the first waste land rules (p. 59): for then the grants were usually of the full proprietary right and possibly free of Revenue charges also. All proprietary estates of this class represent such simple instances of direct title to the land, that further explanation is unnecessary. Revenue grants or assignments.‑But a great many existing land titles have originated in grants of assignments of Revenue which were never intended to include a landed right at all; these demand a little more consideration. "We have already noticed the system of revenue assignments in connection with the question 'what lands are liable to pay revenue'? (p. 52). But here we have to notice the subject from the tenure point of view. Many estates and landholdings, even though the Revenue privilege is now wholly or partly with drawn, still owe their origin as landed interests to what was originally a Revenue‑free grant. It may save a reference backwards, if I here remind the reader that the Mughal system always contemplated two kinds of grants of Revenue. One was in perpetuity or at least for as long as the object of the grant continued in existence; and it was always intended to convey a title to the land as well: it was a 'mi!k' grant, i. e., an out and out gift of soil and Revenue both. The land perhaps already belonged to the pious, learned or decayed noble family, for whose support the Revenue charges were remitted; in that case the land became `freehold'; or it might be waste and the grantee would himself bring it under cultivation; or at any rate it was so held that he would have no difficulty in becoming the superior owner. Grants of the milk class are called In 'am; or more specifically, mu'afi grants." Jagir Estates.‑But another large class of grants had nothing to do with the land‑right. The imperial territory was classified into two large divisions (adopted from the Hindu organization). There was the khalsa, administered by the Emperor's Diwan, A'mil, and other officials, the Revenue of which went to the Treasury; the rest was the jagir land (which included the frontier and outlying tracts) of which the Revenue was assigned to certain State offices and military commands, as already described (p. 53). At first this system was regularly carried out. Free grants were issued only by the highest authority. Even the Governors of Provinces could not make them, except in the most distant Provinces like Kabul and the Dakhan. The assignments were for life; and no more Revenue could be taken than was specified in the grant. But the time came when the decline of the Empire brought relaxed control and chronic impoverish ment; and I have already stated (p. 54) how such grants began to be issued irregularly and even established fraudulently. Then it was that all kinds of grants became permanent because they were not surrendered on the death of the grantee. When British rule began, forged titles and pretended grants, backed only by the fact of present possession, were everywhere to be found. Under such circumstances a jagirdar or other grantee easily usurped the right to the land as well as the Revenue privilege. And indeed in many cases it would be very natural for him to take it; for he might have cleared, at his own expense large area of the waste; he would probably have some private property of his own as a nucleus and he could easily buy up a great deal more and so complete a working title to the whole. When the first British Land Revenue Settlements were made, the Administration was mainly concerned with the question whether, in the numerous cases of claim by grant, the Revenue should continue to be remitted (p. 55); but in Settlements which included an adjustment of landed rights, there was the further question whether the grantee was (or had become) proprietor or not, It might easily be the case, that a jagirdar could show himself to have become the owner of an estate and vet fail to satisfy the authorities that he had a good claim to hold it Revenue‑free; Government would then assess the land , and not continue any Revenue‑free privilege, though the ownership was acknowledged. In Bombay and Madras such grants became proprietary.‑ In Bombay it was found that the Maratha rulers had often imposed a quit‑rent (in the lump and without detailed valuation) on these tenures; this device avoided the odium of appearing to resume them. A number of estates having acquired in this way a fixed Revenue payment in the lump, are shown in the returns as udhad-jama'bandi lands. The proprietary right was in these provinces, recognized as conveyed by a Revenue grant; and the lands were said to be `alienated,' i.e., the State right, both in the soil and to the Revenue, had been parted with (p. 52). When the enquiry was set on foot, detailed proof of the grant and its terms was generally vaived on the grantee consenting to accept a 'summary Settlement'‑which equitably determined the local limits of his grant and imposed a moderate quit‑rent or Revenue. If he chose to undergo the ordeal of a full inquest, it might be that he would succeed in establishing a valid grant to be wholly Revenue‑free; but he was just as likely to fail, in which case he would get nothing at all. The in'am holdings in Madras were also settled in a similar way, and if allowed they were confirmed by title‑deeds on the basis of a procedure called enfranchisement' which was very like the 'summary settlement' of Bombay. The grants to be admitted at all must have been in possession for fifty years; and if the claimant chose to prove; the absolute freedom from charge and any other incidents, he might do so; otherwise all difficulty could be avoided by undergoing 'enfranchisement' that is accepting reasonable limits for the estate and a moderate fixed assessment (in some cases this was allowed to be redeemed). In Northern India.‑In Northern India generally, there was no universal rule that either the jagirdar, or the smaller grantee (mu'fidar), was, or had become, proprietor; it depended on the facts and circumstances in each case. In Bengal.‑In Bengal the same remark applies; the rules which were acted on at the Permanent Settlement had nothing to do with the title to the land. All grants before 1765 A. D. (the date of the grant of 'Bengal, Bihar and Orissa to the Company) were allowed `as valid and all others were more or less set aside; the details cannot here be gone into. Distinction between mu'afi and jagir in modern times.‑In former times the distinction was that a jagir implied conditions of service, but now these conditions are generally obsolete. Properly speaking, the former indicates the pardoning of the revenue charges on a man's own land, or on land that had been granted to hire; and it does not involve service or keeping troops; the latter means an assignment of the Revenue of a tract of country, always on condition of service. If any distinction now exists, the jagir is usually the larger political grant and the other is the smaller personal grant. The term inam (in'am) is more commonly used in the West and South (where 'alienated lands' are spoken of) and mu'afi in the North. it would be interesting, but it would occupy too much space, to enumerate the local names by which the smaller in'ams or free grants were known and the various purposes for which they are issued: these have been noticed in general terms (p. 53). The regular jagir or service grants were more uniform; being in all cases, to pay for service, to support troops, to provide for the administration of frontier tracts, or for the restoration of land that was out of cultivation."

7. In Volume II of the Book "The Land Systems of British India" while dealing with the land tenure in the Punjab, the same learned author at page 698 under the heading "Revenue‑Free Holdings" writes as follows:‑ "Revenue‑Free Holdings.‑Looking at land‑tenures from the point of view of the revenue relations with the State, the Punjab might almost be called the land par excellence, of muafidars and of jagirdars. It is true, here also, that many of their interests are more matters of money assignment than of any direct connection with land; but still, in other cases, they are sufficiently territorial to be dealt with as tenures. A number of Jagirdars have been handed on to our Government from the Sikh rule. It was the policy of that State to deal direct with the villages and they, therefore, checked the growth of all such tribal chiefs and others as would, in other places, have absorbed all subordinate rights and become great and absolute landlords. But they could not entirely ignore either the local chiefs, or those belonging to their own consideration. They adopted the plan of making revenue assignments, or allowances and calling the grantees 'jagirdars', generally requiring some military service, i e. that they should be ready to take the field with a body of foot and horse‑which constitutes the real meaning of a 'jagir'. Then again a large number of jagirs have been handed down to our own Government not as created by the Sikh rulers, but as representing the remains of the chief‑ships and dignities of that Government (see p. 606, ante.). So that, what with religious and charitable free‑grants and with all the historical 'jagirs' of past times, the proportion of Punjab land‑revenue assigned is very large. Many 'jagirs' have been granted as rewards, or simply for the support of members of old and honourable families, or the spiritual heads of sects, like the Sikh 'Bedi' class or the Mussalman Saiyed and Makhdum. It is only necessary to examine the great body of orders and rules contained in the Financial Commissioners' Consolidated Circular (No. 37, page 300) to see what an immense business the 'jagir' question has been in the Punjab. We do not now require service from our 'jagirdars' as a condition of the tenure; and in some cases where such a condition was distinctly existent when the 'jagir' came up for confirmation, we have commuted it for a small money payment in reduction of the jagir allowances. In some cases the grant includes only the revenue‑right in cash, or in rare cases of grain, with a right to the jagirdar to collect it himself. In others the jagirdar has and always has held, the proprietary right of the whole or a part of the land itself. But the jagir is always spoken of as a jagir of so many rupees annually, meaning that revenue is assigned to that amount, or that the land granted is calculated to yield that amount. Some jagirs are for life or lives, some in perpetuity; which it is, depends (1) on whether it is a grant continued on the same terms as those granted under former Government or, (2) newly granted by the British Government and what are the circumstances and merits of each case. In all cases, looking at the matter from the tenure‑point of view, it is a question of fact, whether the grantee has become, in any sense, proprietor; and the question arises especially, when the assignment ceases or lapses and it has to be decided who is to 'be settled with' for the revenue that will in future be claimed. The Circular above quoted 'accepts the fact that the assignee's interest may have come to be something different from that of a mere assignee of Government revenue and has in fact grown into a more or less complete proprietary, or sub‑proprietary, status'. 'The grantee may have resided on the land and directly acquired fields: he may have made gardens, erected buildings and tombs and have sunk wells, or made other improvements. He may be able to show particular facts which connect him with the land and which entitled him to be called proprietor in some sense or to some degree. In the cis‑Sutlej States' the 'Jagirdar' so called, was often not a grantee of any Government at all, but was simply a marauding chief of a Sikh 'misl' or group of confederates. I have to some extent described these 'jagirdars' in speaking of the tenures in the Ambala District (p. 683 ante). I merely here add, that in the special cases where the chiefs took possession of the land of the villages, or of the waste country, they called the cultivated land 'sir' and the waste bir. "But in most cases the conquerors left the old village body in possession, claiming as overlords, a share in the rental called 'chaharam' or fourth share. Under our Settlement arrangements, the Jagirdar now receives the revenue, the original landholding communities or individuals being settled with and retaining full proprietary rights. He in fact is a mere assignee of the revenue, taking part of what otherwise would go to the State. The greater of these chiefs had formerly pretensions to sovereign powers within their taluqa or share of the territory. All such (except of the really large States like Patiala, Jind and Nabha, ete.,) were withdrawn in 1847 and the chiefs retained the title of 'Jagirdars' and hold on condition of loyalty. and rendering service when required to the British Government. In all the minor chiefships, as I have said, every one of the conquerors had some share; such was the spirit of equality which prevailed among the at tribesmen who so largely recruited the ranks of the Sikh 'misls.' First, there was a share for the chief and minor shares (patti) for the `horsemen'. These shares are inherited according to a special rule; no widow succeeds, nor a descendant in female line; and a collateral can succeed only if the common ancestor was in possession at a fixed date (1808‑9), the date when the British Government took the chiefs under its protection. By a mu'afi is properly meant a remission (by royal grant) of the obligation of paying revenue on a fixed plot of land and this was made often in favour of some religious person or institution, or for some past good service. According to the original meaning, the term implies that the holder of a plot of land is `excused' from paying the Government revenue and usually it would be the person's own land that is 'excused' from revenue payment, or a grant of land at disposal of the State has been made "revenue free". But in the old days, when proprietary right was less thought of, the State no doubt granted in mu'afi a village, or plot of land which was already in occupation of some one else. Here the Muafidar contented himself with leaving the original occupants in possession, but he took batai‑a share in the produce‑from them. The practical distinction then came to be, that the jagir was a grant with condition of service and the mu'afi was a grant without such conditions. The terms 'jagir' and 'mu'afi' have now come to be used very much as synonyms. This is owing to the fact that service is not now required as the condition of the grant. A mu'afi is, moreover, usually a small grant; the jagir grant was commonly held by persons of some family and consideration. At the present day, however, one hears the pattiest revenue free holdings called 'Jagir', and some large ones called 'muafa'. In concluding this notice, I have only once more to call attention to the districts near Delhi, where State grants called 'istimrari‑muqarrari' are found. They might or might not be proprietary grants. If not, they only gave a right to receive the Government revenue, of which only the fixed sum specified in the grant had to be remitted to the treasury."

8. Mt. Beden‑Powell at page 54 of his book referred to in para. 6 of this judgment has explained that the word 'Jagir' is a contraction from the Persian Jai=place and Gir=holding or taking possession.

9. To the similar effect is the history of word 'jagir' as given by Patel in his Book "The Indian Land Problem and Legislation" (1954 Edition) in Chapters 13 and

18. For further literature on the‑ subject reference can also be made to‑ the Punjab Land Administration Munual Chapter III and Punjab Land Revenue Act by Om Parakash Aggrawala (1950 Edition) Appendix II on pages 575 to 581.

10. The above is the history of "Jagirs" as given in various text‑books. Coming to the case law on the subject, it was laid down in Shiromani Gurdwara Prabandhak Committee v. Karam Singh (A I R 1930 Lah. 46), that the difference between Mu'afi and Jagir is that the former is remission of land revenue which is collected and paid to the Jagirdar. The Jagirdar may subsequently acquire the property and if he does, the grant technically becomes Mu'afi though it always continues to be shown as a Jagir. In Raja Balbhadar Singh and another v. Shankar Das (A I R 1937 Lah. 211), it was held, "ordinarily the Government grant Jagirs in the form of assignment of land revenue but it may also take the form of cash allowance by the Government or the assignment of others dues recoverable by the Government as the recovery of the fines and recovery of the income of a garden." In Chimandas Kundammal v. Kundammal Alumal and others (A I R 1943 Sind 100), it has been held that there can be grant of soil as well as of the land revenue and both the grants may exist independently or simultaneously. In Thakur Amar Singhji, etc. v. State of Rajasthan and others (A I R 1955 S C 504), a question arose as to the connotation of the word 'Jagir' as used in Rajasthan Land Reforms and Resumptions of Jagirs Act (VI of 1952) and it was held:‑ "All the lands of the State must fall within one or the other of the two categories, Khalsa or Jagir and the essential features of a Jagir are that it is held under a grant from the ruler and the grant is of the land revenue. Both in its popular sense and legislative practice, the word 'Jagir' is used as connoting State grants which conferred on the grantees rights 'in respect of land revenue'. The word 'Jagir' in Article 31‑A (of the Indian Constitution) cannot be construed as limited to its original and primary meaning of a grant made for military service rendered or to be rendered and it cannot be said that accordingly other grants such as maintenance grants made in favour of near relations and dependents would not be covered by it. At the time of the enactment of Article 31‑A, the word had acquired both in popular usage and legislative practice a wide connotation, and it will be in accord with sound canons of interpretation, to ascribe that connotation to that word rather than an archaic meaning to be gathered from a study of ancient tenures." In Duryodhan Kar and another v. Brajasunder Deb after his death Raja Chandra Bhanu Deb (A I R 1949 Orissa 31), the word 'Jagir' and the incidents of 'Jagir' were explaincd as under:‑ "The word 'Jagir' has been loosely used and its precise meaning has sometimes been over looked. Jagir etymologically means `Jai', a place and `gir', holding and implies a tenure created by Muhammadan Government in favour of its servants whereby public revenue was assigned in return of service. It may be an assignment of revenue alone or it may comprise land also. But the mere use of the word `Jagir', in the absence of other evidence, does not connote that Jagirdar was granted the land which constituted the Jagir. The Jagir can be of two kinds, (i) one in which the lands have been granted in lieu of services with the condition that on cessation or non‑rendition of services by the servant or necessity for such services no longer existing, the lands shall revert to the grantor; and (ii) the second class is one where the service‑tenure‑holder has his right of tenancy either superior or inferior in the lands but in consideration of his rendering certain services either the whole or a part of the rent is remitted. The services rendered in lieu of rent is nothing but rent." In Shams Ara Begam v. Fakhr Johan Begum (A I R 1936 Oudh 121), it was held that :‑ "The word `Jagir' is somewhat vague and susceptible of different interpretations. It is not a term of art. It might consist of a revenue free property or it might consist of a mere grant of land revenue. The word does not convey the same meaning in all parts of India." Then referring to the position in Oudh, the learned Judges referred to a Circular of that Government which reads as follows: "As regards rent‑free tenures, the Chief Commissioner is of opinion that as the grant of a Jagir in Oudh generally carries with it a proprietary right in the soil when a holding is released in favour of one or more muafidars the Government simply consents to waive its claim to the payment of the land revenue on the holding in perpetuity or for the life or lives of one or more persons specified. This act on the part of the Government can in no way affect the proprietary rights in the soil existing at the time of the agreement, and those rights must be maintained in their integrity." After referring to the above Circular and the evidence led in that case, the learned Judges came to the conclusion that the Jagirdar in that case was not merely of assignee of Government revenue but had also proprietary rights in the soil. This case helps to show that proprietary rights in the soil may be quite different from the Jagir conferred in the form of "not paying the land revenue".

11. Analysing in the light of the above discussion, it is evident that the grant in this case was of a composite character. Firstly, it gave or sold the land to Mr. Chill (as is the common ground) for digging the canal and allowed him to acquire its B proprietary rights after some time. Secondly, after the acquisition of proprietary rights, the Government exempted, released or pardoned the grantee from the payment of the land revenue, This Mu'afi, exemption or release from the land revenue was, therefore, in the nature of a separate grant or Jagir to Mr. Chill. It quite fell within the ordinary meaning of the word "Jagir" as explained above. It is distinguishable and separate from the rights in the soil itself. Proprietorship still vests in the grantee and the same has not been touched. It is the latter Jagir of "retaining the land revenue with himself" which has been done away with by the Punjab Act IX of 1952.

12. We have held that pardon or exemption from land revenue, or in other words, the grant to retain the land revenue himself was a Jagir in the ordinary sense of this word and was, therefore, hit by the provisions of the Punjab Abolition of Jagirs Act IX of 1952. Apart from the above, however, we are also of the opinion that if not falling within the ordinary meaning of the word "Jagir", the present case was covered by the extended meaning of the word as given in section 2(1) of the Act. According to the said section "any assignment or release of land revenue" is also a Jagir. This is clearly a case of release of land of revenue, because when the grantee is being given exemption from paying land revenue or when he is being given a land revenue free estate, it means that he is being released from the liability to pay land revenue. Learned counsel for the petitioner submitted that the phrase "release of land revenue" has a technical meaning and is used in such cases where land revenue is remitted to the owner himself. He states that it relates to those estates which are Mu'afis. On the other hand, when it is assigned to or released in favour of a third person, (that is a person other than the owner) then it is known as a Jagir. In our opinion, there is no need to import this technical distinction in the present case. As will be evident from the description of various land tenures as reproduced from various text‑books in the earlier part of this judgment, the distinction, which the learned counsel is trying to maintain, has ceased to exist with the passage of time. And now pardon of the land revenue is also known as Mu'afi or Jagir. Anyhow, without conceding that release of land revenue has any technical meaning, as is being suggested by the learned counsel for the petitioners, in the present case, the intention of the Act is not to give that technical meaning to it, because the words "assignment" or "release" have been prefixed by word "any". The use of the word "any" shows that the intention is not to give the words following it any restricted or technical meaning, but rather to enlarge them. In this way, every case where land revenue has been released whether in favour of the owner or a third person, will be covered by this phrase. It was laid down in Wooler v. North Eastern Breweries ((1910) 1 K B 247), that "any" is a word which excludes limitations or qualifications. It connotes wide generality. The same was the view expressed by Fry, L. J. in Duck v. Bates ((1884) 13 Q B D 43). This proposition of law was accepted as correct by a Full Bench of this Court reported in Dr. Cowas C. Mehta v. Additional Settlement and Rehabilitation Commissioner and others (P L D 1963 Kar, 938). In that case, a question arose as to whether occupants of houses which had been declared as big mansions were eligible for protection given in section 30 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958 (XXVIII of 1958). The wording of the said section was to the effect that protection was available to any person who was in possession of "any', evacuee house, etc." Farooqi, J., who wrote the leading judgment held as follows at page 952:‑ "Now, in the definition of the term `house' an exclusion had been made in respect of residential premises which might be declared under para. 16 as a big mansion. That limitation of the definition was known to the framers of the Act and therefore, when they came to enact section 30, it appears to i us that they advisedly used the word `any' before `evacuee house'. It was held by L. J. Fry in the case of Duck v. Bates, that the word `any' excludes limitation or qualification. It is true that the generality of the expression of the word may be restricted by the subject‑matter or the context. But in this case it is clear to us that such a restriction was not contemplated. Respectfully following the said cannon of interpretation, we hold that in the instant case as well Jagir "includes" "any" assignment or release of land revenue and the intention was to exclude any limitation or qualification. The two words "includes" and "any" in the context indicate that the intention was to make the concept of Jagir quite wide.

13. The learned counsel for the petitioners drew our attention to section 3(1) of the Punjab Land Revenue Act XVIII of 1887 and stated that an "estate" has been defined inter alia as any area‑which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for or redeemed. He then refers to section 48(1) of the said Act and states that according to that provision of law all land is liable to the payment of land revenue, except such land as has been wholly exempted from that liability by special contract with the Government or by the provisions of any law for the time being in force. He proceeds on to argue that only those Jagirs or estates, the land revenue of which had been released or assigned have been abolished by the Punjab Abolition of Jagirs Act, 1952 and not such estates the land revenue of which was compounded for or redeemed. He submits that the grant contained in Annexure "A" (if at all a grant), was a case of compounding or redemption of land revenue and not of a release of land revenue and, therefore, the same was not hit by the provisions of the Punjab Act IX of 1952. He says that the terms "assignment of land revenue", "release of land revenue" "compounding land revenue" and "redemption of land revenue", were fully known to the Legislature (as for example see sections 3(1) and 48(3) of the Punjab Land Revenue Act, 1887), but in the Punjab Abolition of Jagirs Act IX of 1952, only the cases where the land revenue had been assigned or released have been touched and not the cases of other types of Jagirs. Learned counsel refers to page 8 of the Punjab Land Revenue Act, by Om Parkash Aggrawala Fifth (1963) Edition, where these expressions have been explained as follows:‑, "(a) Revenue released for.‑Means revenue remitted to the owner himself (e.g., Mu'afi) or assigned to a third person (e.g., Jagir.) (b) Revenue compounded for.‑Means revenue for which a fixed nazrana has been accepted by Government for the land revenue demand to which it is entitled. (c) Revenue redeemed.‑Means revenue given up. In the year 1861, it had been proposed to grant revenue free land with the purpose of encouraging the settlement of European farmers in India," and basing his argument on this distinction he submits that the terms and conditions contained in Annexure A, indicated a through and through sale of the soil and its proprietary rights with a complete freedom for the immunity from payment of land revenue. He contended that at the most it was a case of compounding for or redemption of the land revenue and not of assignment or release of land revenue.

14. We do not agree and our reasons (besides those which have already been given) are as follows:‑ (i) The transaction though in part resembles a sale, but is in effect a "grant." The deed (Annexure A) expressly says that the Government "has conferred on Mr. Chill the grant of a tract of land." It is further stated therein that it was "to be holden by him in full proprietary right subject to the following conditions," (which were laid down in the ensuing paragraphs of the opening para. of the deed). The word "grant" was used in opening para. of the deed and in conditions Nos. 1, 4, 6, 7, 11 and 12 and Mr. Chill was described as a grantee in conditions Nos. 1, 4, 5, 6, 7, 8 and

12. The grantee was liable to contribute on the same terms as other land holders for the constructions and repairs of high roads. He was required to erect permanent boundary marks round his grant and to keep them in the state of repairs. The grant preserved the rights of customary use of consumption, of spontaneous products of, other persons. The grantee was to be responsible for the police and conservancy of his grant. He was liable for all cesses. For obtaining proprietary rights, the grantee was to pay the purchase money. It is obvious that after paying that money the soil of the land was to vest and belong to the grantee. It was at that stage that question arose of considering as to what about the land revenue and then it was stipulated that the grantee shall have a land revenue free estate and in this way, the land revenue was released in favour of the grantee and was a sort of Mu'afi. (ii) According to the own showing of the learned counsel for the petitioners "revenue compounded for" means such revenue for which a fixed Nazrana has been accepted by the Government. In the instant case no such fixed Nazrana was accepted for the land revenue and this is, therefore, not a case of compounding for the revenue, (iii) It is not a case of redemption of land revenue either. A general feature of redemption cases was as per Oar Parkash Aggarawala at page 9 of his Punjab Land Revenue Act (1963 Edition), that there the price of the land was determined according to the value of 4 % stock of the Government of India so that the amount paid may yield an interest equivalent to the land revenue bought out. The form of the sanad is printed on the same page of the book and reads as follows: FORM OF SANAD No. Know all men by these presents that the British Government of India have received from‑ ‑‑son of‑‑--resident

of Mouza‑-‑‑Pargana‑‑‑‑‑District‑‑‑‑the

sum of Rupees‑-‑(Rs.‑‑‑‑‑) being the amount of‑‑

years purchase of the land revenue assessed on an area of‑‑‑‑in Mouza‑‑--Pargana--‑‑District of‑‑‑‑and bounded as follows: North ‑‑‑‑‑‑ South ‑‑

East

West‑‑‑‑‑- in lieu of demand for ever on account of Government Land Revenue due from the said‑‑‑‑son of‑ ‑his heirs and assigns, in respect of the above named land." At the same page is given a pro forma of the register of plots of land of which the land revenue has been redeemed. It is in the following form:‑ "Register of plots of land of which the revenue has been redeemed in the district of :‑

Serial No. Name of village. Area of land in acres. Yearly Assessment. Remarks. Amount of redemption money. Name of parties reducing. Date of redemption.

In this column the purpose to which the land is to be applied must be stated with any further explanations or observations that may appear called for."

Keeping in view these broad features of redemption, it is clear that in the instant case nothing of this kind existed or at all took place. No evidence worth the name has been placed on the record to show that the estate in question was entered in the Register of Redemption. The pro forma of the Sanad in question viz., Annexure A is quite different from the pro forma of redemption as reproduced above and cannot be said to constitute a case of redemption of land revenue. No evidence has been led to show as to how much was the land revenue of the estate and that in lieu of that so much amount was taken by the Government by way of compounding or redeeming it. (iv) It is a common‑ground that at the time of the original grant the area in question was a waste land. In para. 12 of the written‑statement it has been averred that no land revenue had ever been assessed on this land, till the enforcement of the Punjab Abolition of Jagirs Act, 1952. This plea has not been controverted by any counter‑affidavit or otherwise. This will show that it could not, therefore, be a case of compounding for or redemption of land revenue, because both these things contemplate that the land is assessed to land revenue, its land revenue is known and in satisfaction and settlement thereof, the Government is to receive some fixed amount and forego the right of claiming the land revenue. Another special characteristic of redemption cases is that the area is generally small but in the instant case it is a huge estate. For the purpose of showing as to how and in what cases redemption was possible, reference can be made to Mr. Douie's Punjab Settlement Manual Fifth Edition, para. 494, etc., at page 252 under the heading "redemption of land revenue and sale of waste land free of land revenue." To the same effect is the Government Notification No. 556, dated 15‑7‑1862, which is referred to in Paragraph 494 Douie's Settlement Manual and which is published in the Punjab Gazette dated 19‑7‑1862, at page 613 and which contains redemption rules and its pro forma (that is the sanad), a specimen of which has already been reproduced in the earlier part of this judgment, as copied from Om Parakash Aggarawala's Land Revenue Act. Reference can also be made to the same Gazette, dated 27‑8‑1862, pages 723‑733, for the despatch of the Secretary of State, dated 15‑8‑1862, which contains the policy of the Government with regard to the sale of State waste lands. If we examine Circular No. 5 dated 24‑1‑1863, issued by the Financial Commissioner, publishing Notification No. 25, dated 14‑1‑1863 providing rules for sales of waste lands as printed at pages 189 to 196 of the Book known as "Book Circular Orders issued by the Financial Commissioner for the Punjab (in the Revenue Department) for the year 1861‑63, published in 1864," we note that the pro forma of a sale‑deed at page 194‑196 of Financial Commissioner's Circular is word by word the same as in Annexure A in the instant case. It is self‑evident that the said pro forma is quite distinct from the pro forma of redemption cases which has already been reproduced in an earlier paragraph of this judgment. (v) The (grant of) freedom from land revenue, in the instant case, in our opinion resembles those types of estates or Jagirs which were given land revenue free. It is a common ground that the grant was for the purposes of digging a canal and for encouraging Europeon settlers. It was just like the assignment or release of land revenue in favour of the owner himself.

15. For the various reasons given above, we hold that this is clearly a case of Jagir which stood abolished by the Punjab Abolition of Jagirs Act IX of 1952 and the demand notice issued by the Tehsildar requiring payment of land revenue from the petitioners was quite justified.

16. No other point was argued before us.

17. The writ petition, in the circumstances explained above, has no merits and is hereby dismissed with costs. K. M. A. Petition dismissed.