1. This second appeal arises out of a suit by the inamdar of Ankli for a declaration that he is entitled to the entire alluvion formed in front of his survey No. 54 of Ankli, a declaration that the order of the commissioner in that respect is illegal and ultra vires, and an injunction restraining the defendants from giving effect to the commissioner's order. The principal defendants to the action are the Secretary of State (defendant 1) and the owner of survey Nos. 170 and 171 of Nasalapur, a village in the Kolhapur State (defendants). The land of the plaintiff has to the east of it a perennial stream, and, on the facts of this case, it seems that at the time of the revision survey in 1899 the boundary between the plaintiff's land and the land of defendant 2 was the middle of this stream. But since then for one reason or another the stream has been gradually shifting to the east, with the result that alluvial soil is deposited on the land of the plaintiff and the defendant's land is subject to erosion. In 1922 defendant 2 applied to the Kolhapur authorities saying that the trouble was due to the deliberate act of the inamdar of Ankli, who had artificially forced the stream towards the Nasalapur side, and, in October of that year, a specific complaint of the inamdar having built a dam for this purpose was made to the Kolhapur authorities. Reference was made at the same time to proceedings which were then pending for a settlement of the boundary. In 1928 there was a, joint survey conducted by the British authorities and the Kolhapur authorities fixing the boundary.
2. As a result of the joint survey, some of the land now in dispute was recognised as belonging to Nasalapur. Defendant 2 applied to the Kolhapur authorities for possession of that land in April 1929; but two months earlier the inamdar of Ankli had written to the Mamlatdar of Chikodi pointing out that he was not present at the time of the joint survey, and asking that the matter might be reopened. That was accordingly done in December 1930, and admittedly the inamdar's attorney was present at the new survey. Six months later, the Collector directed the inamdar to hand over a portion to the west of the stream marked red in the map accompanying his letter and measuring five gunthas. He said that the occupation of this land by the inamdar was an encroachment on Kolhapur territory; but that as it was in Kolhapur territory it was not possible to take the appropriate action under the Bombay Land Revenue Code, 1879. He also said that in future the nulla in its present position would have to be recognised as the boundary, except for the five gunthas which the inamdar was directed to hand over.
3. The inamdar appealed to the commissioner. The commissioner, obviously feeling some difficulty in deciding this matter under the Land Revenue Code, referred to Government for orders. In reply he was furnished with a copy of the Bombay Baroda Boundary Convention for the determination of disputes of this nature arising between the Government of Bombay and the Government of Baroda, and, on the facts of the present situation, it was recommended that he should treat the boundary as the mid-bank line. The commissioner accordingly treated the boundary as the mid-bank line, which in effect was what the Collector had done. But he set aside that part of the Collector's order which directed the inamdar to deliver possession to defendant 2, since on the application of the mid-bank rule the five gunthas in question would be within Kolhapur territory and not subject to the orders of the Government of Bombay or its servants. In view of this history of the dispute the defendants objected to the jurisdiction of the Court; and they also took the point that the suit was barred by Section 14, Limitation Act, 1908, the inamdar not having brought his suit within one year of the date of the commissioner's order. Both the Courts below have accepted these defences. I may say at once that the objection on the score of limitation cannot be sustained, since an appeal was preferred from the order of the commissioner within the provisions of Section 204, Bombay Land Revenue Code, and the orders of Government rejecting the appeal and confirming the commissioner's order were passed within the period of one year before the date of the suit.
4. For the purposes of the present appeal, the only question with which we are concerned is the question of the jurisdiction of the British Indian Courts. In both the Courts below, objection to the jurisdiction of the Court was taken only on the score of Section 121, Bombay Land Revenue Code and Section 4 (g), Bombay Revenue Jurisdiction Act, which bars jurisdiction in respect of claims regarding boundaries fixed under Bombay Act 1 of 1865 or any other law for the time being in force. Bombay Act 1 of 1865 has been repealed and its place has been taken by the Land Revenue Code: But the Land Revenue Code has provisions in Sections 118 to 121 regarding the fixing of boundaries and the procedure to be followed in that respect; and if the proceedings which took place before the institution of this suit were boundary proceedings falling under the Land Revenue Code, they would be covered by Section 4 (g), Revenue Jurisdiction Act. It has been suggested in this appeal that the proviso to Section 4 would take the case out of the purview of Section 4 as being a case of a person claiming to 'hold wholly or partially exempt from payment of land revenue under a sanad.' But the proviso does not cover the case of a claim to actual land which as a matter of fact is held wholly or partially exempt from payment of and revenue. All that it covers is a claim to hold land wholly or partially exempt from land revenue as distinct from a claim to hold it under a liability to pay land revenue. Both the Courts below have held that the proceedings for fixing the boundary were taken under the Land Revenue Code, and that the jurisdiction of the British Indian Courts was therefore barred by Section 4 (g), Revenue Jurisdiction Act. They have also held that the suit is barred by reason of Section 121, Land Revenue Code, which makes the decision of a boundary dispute under that Code binding upon the holders of the land on each side of the boundary.
5. The only issues framed as to jurisdiction related to Section 4 (g), Revenue Jurisdiction Act, and Section 121, Land Revenue Code, and, in this appeal by the inamdar, the principal argument addressed to us is that the proceedings cannot in any sense be regarded as proceedings under the Land Revenue Code, so that neither Section 4 (g), Revenue Jurisdiction Act, nor Section 121, Land Revenue Code, would be a bar to the suit. We agree that these proceedings cannot be regarded as having taken place under the Land Revenue Code. The procedure provided in the Land Revenue Code for the fixing of boundaries is inappropriate to the procedure that would have to be adopted when in effect the dispute involves a decision as to the boundary between State territory and British Indian territory. Moreover Section 121, Land Revenue Code, which is an integral part of the provisions relating to the settlement of boundary disputes, provides that the decision shall conclusively determine
the rights of the landholders on either side of the boundary fixed in respect of the land adjudged to appertain or not to appertain to their respective holdings.
6. In the present case the decision has gone against the subject of the British Government and in favour of the subject of the Kolhapur State. But if the decision had gone the other way, it could not possibly have been said to be a conclusive determination of the rights of the landholder in the Kolhapur territory, since he would not have been bound by it. It follows that Section 121, which, as I say, is an integral part of the provisions relating to boundary disputes in the Land Revenue Code, cannot be applied to disputes of this kind. Those provisions will apply only to disputes relating to boundaries wholly situated in British India.
7. But in our view this is not the end of the matter. It is true that the case was considered only from the point of view of the Land Revenue Code in the Courts below; and though defendant 2 did say that the British Indian Courts had no jurisdiction: to try the suit as a suit for an injunction against him since he was a subject of a foreign State and the property in dispute was part of foreign territory, nevertheless in the main the only objection on the score of jurisdiction was based on the Land Revenue Code and the consequent application of Section 4 (g), Revenue Jurisdiction Act. On behalf of the inamdar Mr. Manerikar therefore argues that it is unfair to him to consider for the first time in second appeal the question of jurisdiction from any other stand-point than the stand-point adopted by the parties in the Courts below. But when a question of jurisdiction can be decided in a Court of appeal without coming to any further finding of fact, the question becomes a pure question of law and can be decided in second appeal even though it is an entirely new point not taken even by the parties themselves.
8. The real objection to the jurisdiction of the British Indian Courts in this case (so it seems to us) is that the Courts are being asked to adjudicate upon a question which is really concerned with an act of State and it is accepted that suits relating to acts of State or public policy are excluded from the jurisdiction of the civil Courts. An 'act of State,' according to Halsbury, Edn. 2, vol. 26, para. 557, includes two main classes of acts, (1) acts which are capable of being done by a private, individual and (2) acts which only the Supreme Government can perform, such as the making of treaties and the declaration of war. But there is also a third class which according to the learned author might be more accurately termed 'facts of State,' and that consists of matters and questions the determination of which is solely in the hands of the Crown or the Government; and among the examples of such questions is given the question whether a particular territory is within the boundaries of a particular State. It is impossible to escape from the conclusion that ultimately the question involved in this suit is a question of this kind. The plaintiff is trying to induce the Courts to decide that all the land to the west of the stream belongs to him and not to defendant 2. But the plaintiff's rights, whatever they may be, depend upon his being the owner of survey NO. 54 of Ankli village in British territory, and the rights of defendant 2, whatever they may be, depend upon his being the owner of survey NOS. 170 and 171 of Nasalapur in Kolhapur territory; and a determination of the respective rights of the two parties with reference to the land in dispute is ultimately a question of the sovereignty of British India or of the Kolhapur State with respect to that land. On this question, the Government of Bombay by confirming the orders of the Commissioner has in fact come to a decision. Mr. Manerikar argues that the decision of the Government of Bombay cannot be regarded as an act of State for three reasons: (1) that the Government of Bombay is not a sovereign State; (2) that the Government or its agent, the Commissioner, followed a wrong procedure in dealing with the matter; and (8) that there has been no public declaration by the Government of Bombay of its decision in the matter.
9. I do not see, how the last two objections can be regarded as material, even if true in fact. Whatever methods have been adopted by the Government of Bombay, they have at any rate purported to decide this question, rightly or wrongly, and they have decided it even if they have not publicly announced their decision. As to the contention that the Government of Bombay is not a sovereign State, it undoubtedly had power to determine its own boundaries and in effect it has done so. But even if the Government of Bombay were not a sovereign State and the whole procedure adopted were illegal and the orders of the Government of Bombay were ultra vires, or even if the Government of Bombay had not in fact decided the question at all, that would not alter the fact that a decision on the proper position of the boundaries between the territories of the Government of Bombay and the territories of the Kolhapur State is in effect a decision as to the boundaries between the territories of the Government of India and the Kolhapur State; and a decision, whether it has or has not yet taken place, on such a point as that is a decision amounting to an act of State and involves a question which it is not open to the civil Courts to determine. Mr. Manerikar suggested that inasmuch as this was a dispute between the Government of Bombay and one of its own subjects, namely the inamdar, the plaintiff, a decision upon it should not be regarded as an act of State; and he referred us in that connexion to a decision of this Court in Municipal Corporation of Bombay v. Secretary of State A.I.R. 1934 Bom. 277 where Mirza J., remarked that:
An act of State is a term which is not applicable to an action of the Sovereign towards its own subject in its own territory in time of peace.
10. According to the learned Judge, the ex-pression is usually applied to the action of the Sovereign towards foreign subjects. In so far as this is a dispute between the plaintiff and the Government of Bombay, that may be so. But the dispute goes further than that. It is a dispute relating to the boundary between the territories of the Government of Bombay and the territories of the Kolhapur State; and any decision on that point must be regarded as an act of State outside the jurisdiction of the civil Courts.
11. From another point of view also it may be said that this suit is barred. The Government of Bombay has decided that the land in dispute belongs to the Kolhapur State, and we are informed by the learned Assistant Government Pleader that Government does not claim the land as part of its own territories. That being the position, I may refer to the case in The Fagernes (1927) L.R. 1927 . In that case a collusion between a British ship and an Italian ship took place in the Bristol Channel. The British Company brought an action against an Italian Company and obtained an order for service of summons on the Italian Company in Italy. This order came before the Court of Appeal, and the question involved was whether the place at which the collusion was said to have occurred formed part of the territorial waters of Great Britain or was outside those waters. The matter was one of great difficulty because the Bristol Channel is bounded by two arms of the land, and it appears that there has been no settled practice in international law with respect to territorial rights on principles applicable to all such cases, though in some cases there are recognized principles which would make the case easy of solution. The case before the Court of Appeal did not seem to be covered by any of the recognized principles; and the Court of Appeal, which after all is bound to take judicial notice of the territories under the Crown, sought assistance from the Attorney-General and asked him 'whether the British Government claimed this particular place as part of the territorial waters of the Crown. The Attorney. General instructed by the Home Secretary said that the British Government did not claim the place as part of its territories. That being the position, Bankes L. J., took the view that the Attorney-General's information was evidence of great value to the Court in determining whether it was to take judicial notice of this particular fact; but, while holding that no better evidence was available in this particular case, the learned Judge thought that the Court was not necessarily bound by the Attorney-General's statement. On the other hand, the other two learned Judges who formed the Court agreed in holding that the Court was bound by the statement of the Attorney-General that the British Government did not claim the land as part of its territories. That was a decision of the majority of the Court, and presumably it is the view which ought to be accepted. In the result, the Court of Appeal set aside the order directing the service of summons on the defendant company, thus in effect making it impossible for the suit to be tried and removing the case from the jurisdiction of the Court. Reference may also be made to (1900) 1 ch. 811 for the proposition that the Courts take judicial cognizance not only of the status but also of the boundaries of foreign States, and 'if in doubt, will apply for information to the Secretary of State for Foreign Affairs, whose reply is conclusive.'
12. We think, therefore, that the Courts below, though wrong in deciding that the jurisdiction of the Court was barred by Section 4 (g), Revenue Jurisdiction Act, or by Section 121, Land Revenue Code, were nevertheless right in their final conclusion that the jurisdiction of the Court to entertain this case was barred. We therefore, dismiss this appeal. As the point was raised in its present form for the first time in second appeal by the bench itself, we think that the fairest order of costs will be that each side bear its own costs throughout.