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Kalka Prasad vs Raj Rani And Ors. on 11 December, 1918
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1. The questions raised by this appeal concern the operation of certain provisions of an Act of the Local Legislature, the Bundelkhand Alienation of Land Act (II of 1903). The suit was on a mortgage of the year 1909 and the defendants were described in the plaint as being by caste Ghosis, which they admittedly are. The mortgage was a simple mortgage providing for the sale of the mortgaged property in the event of non-payment; that is to say, it was admittedly not a form of simple mortgage permitted to a member of an agricultural tribe in the Jalaun district by Section 6, Clause (b) of the Act above referred to. The defendants never pleaded that they were members of an agricultural tribe and the Court proceeded to pass, on the 9th of October 1915, a preliminary decree for sale of the mortgaged property. On the 14th of April 1916, the plaintiff, decree holder applied to the Court for the passing of a final decree for sale. The Court recorded an order to the effect that, upon enquiries made since the passing of the preliminary decree, it had come to entertain doubts whether the defendants were not members of an agricultural tribe subject to the provisions of the Bundelkhand Alienation of Land Act, It went on to hold judicially that the defendants, being Ghosis professing the Hindu religion, were members of an agricultural tribe as aforesaid and that consequently no decree for sale could be passed in respect of the land in suit. It held that, in spite of the fact that a preliminary decree for sale had already been passed, the only order in conformity with law which could be passed, by reason of the provisions of Section 9, Clause 3 of the Alienation of Land Act, was an order referring the case to the Collector with a view to his dealing with the matter in the manner provided by the Act. There was an appeal against this decision but it has been affirmed by the District Judge.

2. The second appeal before us raises a number of questions which require to be separately considered. The first and most essential question to be determined is whether the defendants are or are not members of an agricultural tribe within the meaning of Local Act II of 1903. By Section 4 of that Act it is provided that the Local Government shall by notification in the Gazette determine what bodies of persons, in any district or Sub-division of a district subject to the operation of the said Act, are to be deemed agricultural tribes for the purposes of the Act. The Local Government has published a notification dealing with the Jalaun district in which the parties to this suit reside. In that notification persons who are by caste Ahirs are declared to be members of an agricultural tribe as aforesaid. The Courts below have held that Ghosis professing the Hindu religion are a Sub-caste of Ahirs and are therefore included in the notification in question. By consulting standard books of reference on this question the following facts are ascertainable. The word 'Ghosis', strictly speaking, seems to connote an occupation rather than the name of a caste. The meaning of the word is "shouter," and it is applied to herdsmen with reference to the vociferations resorted to by them in the herding of their cattle on the pasture lands. The majority of persons calling themselves Ghosis are converts to the Mohammedan religion, or descendants of such converts, and there is reason to believe that they consist mainly, if not entirely, of the descendants of families once belonging to the Ahir caste and still following their hereditary profession of herdsmen. A certain number of Ghosis, however, still profess the Hindu religion. They do not appear to be very numerous in the Jalaun district and the question whether they are to be treated as a distinct caste of Hindu Ghosis, or as a Sub-division of the Ahir caste, has had to be considered by the authorities on various occasions, apart from the operation of the Alienation of Land Act. We find that in the census returns prepared under the orders of the Lcoal Government, both at the census of 1901, immediately before the passing of Local Act II of 1903, and also at the next census of the year 1911, the Hindu Ghosis in Jalaun, as well as in other districts of Bundelkhand, were classified as a Sub-caste of Ahirs. It has been suggested in argument that a statement of this sort in a census publication is not relevant to the question now before the Court for trial. What we have to determine is the meaning of the word 'Ahir' in a certain Government Notification, We have to decide, with reference to this word as it appears in this notification, whether it does or does not include the Hindu Ghosis of the Jalaun district. As bearing upon the meaning of the word in the notification, it seems to be a relevant fact that in the returns prepared at two consecutive census enumerations of the population, under the orders of the same Government, the Hindu Ghosis were enumerated and classified as a sub-caste of Ahirs. It seems a reasonable argument that when the Local Government used the word Ahirs in this notification, it intended to include all Sub-castes or Sub-divisions of the Ahir caste, referred to in the recent census enumeration prepared under its own orders. That the same classification was maintained at the census of 1911 seems to be also a relevant fact, as showing that there has been no change in what may be called the official attitude on the question. It is further to be noticed that the question which we have now before us has had to be considered by another authority competent to pronounce a judicial opinion on the point, namely, by the Board of Revenue of these provinces. We are entitled to take judicial notice of the constitution of the Government of these provinces, including such facts as the judicial and executive powers exercised by the Board of Revenue. The Bundelkhand Alienation of Land Act was passed in close connection with a kindred Statute, namely, the Bandelkand Encumbered Estates Act, which was Local Act I of 1903. The administration of this Act was left in a very peculiar manner to the Board of Revenue; and we are fairly entitled to conclude that in such a matter as the preparation of the list of agricultural tribes the opinion of the Local Government would be based largely upon advice received from the Board of Revenue. From every point of view, therefore, it t seems to be a relevant fact in the case that the Board of Revenue, having had to consider the very question which is now before us, has come to the conclusion that the Hindu Ghosis were intended to be included under the designation of Ahirs, as a Sub-caste of the Ahir caste, in the notification published under Section 4 of the Alienation of Land Act(II of 1903). On these grounds, therefore, I would hold that the decision of the Courts below was right and that these defendants are in fact members of an agricultural tribe, namely, the Ghosi Sub-division of the Ahir caste, in the Jalaun district.