Chapter XI. Custom And Contract (CNT Act 1908) Excerpts (A)

Chapter XI. Custom and Contract

Their Lordships of the Privy Council have held that a custom in order to be valid, must be ancient, certain and reasonable,and being in derogation of the general rules of law must be construed strictly. A custom must be definite.
The word usage at any rate would include what people are now or recently in the habit of doing in a particular place. It may be that this particular habit is only of a very recent origin, or it may be one, which has existed for a long time.
Ghatwali Tenancies (I):
Ghatwali tenancies are numerous in Chota-Nagpur, especially in Manbhum and Singhbhum Districts. It is now generally conceded and the investigations made by the officers of the Settlement Department, decidedly tend to confirm this view, that all the ancient Ghatwali tenancies were not service tenancies in their origin. They undoubtedly existed long before the British occupation, and appear to have been nothing more or less than estates, which were cleared by the original settlers and pioneers of the village. In course of time the owners of these estates became tributaries of a ruling chief, who established an overlordship in the pargana or other local area and began to pay him a small quit rent, and render services. As may be imagined, the services were the most important. they were generally of a military character, and were required for purpose of aggression or for the protection of the chief’s estate against inroads from without. The chief also very likely utilized the services in the collection of rents and other debts; but, they were mainly of a public and not a personal character. Since the British occupation the historical origin of these tenancies appears to have been lost sight of. Under the provisions of Regulation XVIII of 1805, the chiefs of the Jungle Mehals were appointed to act as Police Darogahs within their respective domains; and they exercised these powers through the agency of their tributaries, who in course of time began to be called Ghatwals. Under the Regulation above referred to, the chief or Zamindar was required to file before magistrate lists of the forces maintained by him. It was obviously the Zamindar’s interest to minimise the extent of the area held by the members of this force, who appear to have been known in various parts as Sirdars, Sadials, Digwars, Naiksa, and Paiks or Tabedars according to their grades; and this appears to be what happened.
The lists or issumnavissis filed by the Zamindars purport to show the areas held by the members of this force in Rekhs or Hals, both indefinite standards of measure. No boundaries appear to have been given. The issumnavissis were, however, accepted and acted on by the Magistrates. The Police powers of the Zamindars were subsequently taken away and assumed by Government, and the ghatwali lands, which were then assumed to be service tenures, were definitely alienated by the zamindars and hypothecated to Government for the performance of the police duties. No survey or accurate records of the lands were, however, prepared, with the result that disputes become frequent and acute between the zamindars and the ghatwals in Manbhum and Singhbhum districts about the year 1880. The former alleged that all the lands lawfully held by the ghatwals were entered in the issumnavissis, and they were trespassers in the excess lands held by them. The Ghatwals on the other hand alleged that all the lands in their possession were part and parcel of their hereditary estates. A compromise was finally arranged with the assistance of the authorities, of which the issumnavissis were made on the basis, though they were entirely ex-parte documents as against the ghatwals. By the terms of the compromises of 1884 which relate to pargana Barahabhum and Dhalbhum, in which it appears the ghatwals gave their assent with great reluctance and in some cases, under actual pressure, it was arranged that the amounts of lands shown in the issumnavissis of 1834 and 1837 respectively should be demarcated as ghatwali or service land, and that the rest of the land found to be in the ghatwals’ possession should be demarcated as mal or rent paying. The ghatwals were allowed a share of the rental derived from the mal land, equal to 371/2 percent; and, for the purpose of demarcating the ghatwal lands, it was assumed that a Rekh of land in pargana Barahabhum was equivalent to 1/16th of the cultivated land of the village and that a “Hal” of land in Dhalbhum was equivalent to 40 local bighas. Under the terms of the compromise, the ghatwals lost their hereditary tenures and holdings; and, they have now no rights in them, save such as attach to their legal status as servants of the state.

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