Before dealing with the merits of the controversy between the parties, it is necessary to understand what is meant by a “ghatwal” and what is a ghatwali tenure, and for the purpose of correctly apprehending what these expressions stand for, it is sufficient in our opinion to quote the following passage from the decision of the Patna H. C. in Sonabati Kumari v. Kirtyanand Singh, 14 Pat. 70 in which the Subject of ghatwali tenures has been very elaborately dismissed:
“Literally a ghatwal means a guard of the passes and the term ‘ghatwali tenure’ was applied by the Moghuls to lands assigned at a low rent or free of rent for guarding the mountain passes and protecting the villages near the hills from the depredations of lawless hill tribes. These ghatwali tenures are to be found for the most part on the western frontier of Bengal and particularly in the areas known as Kharagdiha, Gidhaur, Birbhum, Kharagpur, Bhagalpur and the Santal Parganas. The ghatwals varied in rank and the incidents of their tenure varied in different placed. In some cases they were owners of large estates, some of these estates being more or less of the nature of semi military colonies. . . .
In some cases the ghatwalis were created directly by the ruling power, while in other cases they were created by the landlords or zamindars for the purpose of protecting their zamindary and tenantry and to enable them to have a small force at their command and to discharge the obligations they owed to the ruling power. Sometimes the owners of large ghatwali estates Sub-divided and re-granted the lands to other tenants who besides paying small rents held their lands on condition of rendering certain quasi police and military services and providing a specified number of armed men to fulfil the requirements of the Govt. or of the zamindar as the case might be.”
A Govt. ghatwali is thus a tenure created by the ruling power in favour of a person who is required to render ghatwali services to it, whereas a zamindary ghatwali is a tenure created by a zamindar for ghatwali services to be rendered to him. It is quite plain that the reason why the applt. is anxious to establish that the tenancy is a Govt. ghatwali is that and Govt. ghatwali has been uniformly held to be inalienable. On the other hand, a zamindary ghatwali may be alienated with the consent of the zamindar, and, where local custom permits, even without his consent. From the reports of cases relating to zamindary ghatwalis, it appears that by the passage of time the consent of the zamindar has ceased to be a matter of much significance, and is generally presumed when it is found that the alienation has been made without any objection from the zamindar. As to the extent of the power of alienation, the following observations of the P. C. in Kali Prasad v. Ananda, 15 I. A. 18 are pertinent:
“When once it is established that the ghatwal had the power of alienation, as before stated that power forms an integral portion of his right and interest in the ghatwali, and there is no Evidence whatever to limit it to an alienation for his own life and no longer.”
In order to determine the true character of a ghatwali tenure, it is usually necessary to refer to the grant by which the tenure was created. In the present case, the applt. relies upon Ex. C (1), which is a ghatwali sanad granted in 1776 to the ancestors of the applt. and which runs as follows:
“Know ye the Chaudhuris, kanungoes, zamindars and mutasaddis of mauza Dumri Ghat (illegible) pargana Gidhaur, Sarkar Monghyr comprised in the province of Behar.
The perquisites of ghatwari in all the rahdaris in mauza aforesaid, have now been granted to Kunji Singh. Jangal Singh, Ragho Singh and Manorath Singh, ghatwars of the said mauza, in accordance with what has been in vogue from old time, with effect from the commencement of 1184 fasli. It is desired that they should allow the said ghatwars to enjoy the perquisites of the ghatwari in all the rahdaris according to old custom. It will be the duty of the said ghatwars to be ever ready in discharging the duties of the post and guarding the ghata and chaukis of their elaqa by making rounds day and night. If murder, mischief, theft, highway robbery and sudden night attack be committed in their elaqa, they will be held liable therefor and will be dismissed from their post. Treat this as peremptory and Act according to what is written.
Dated the 5th Ziqada of the 18th year of the August reign corresponding to 1184 Fasli.”
This sanad was granted by Captain Browne, who was deputed by the East India Co. to restore order in a trAct known as Jungle Terai, a vast waste and hilly country as its name signifies, lying to the south of Bhagalpur and west of Rajamahal Hills. This document was construed by a Bench of the Patna H. C. in Fulbati Kumari v. Maheshwari Prasad, A. I. R. (10) 1923 Pat. 453 and as has been pointed out by Dawson-Miller C. J. in that case: “It is not a grant of land but an authority to the persons named to collect as formerly ghatwari or ghatwali fees or tolls from those using the roads and passes which the ghatwals undertook to protect.”
Sukhdev Singh-AIR 1951 SC 288 : (1951) SCR 534