1. The suit, which is the subject of this appeal, was instituted on the 26th February 1880, by Babu Ram Ugrah Singh and others, against the Secretary of State for India in Council, through the Collector of Ballia.
2. The case of the plaintiffs is briefly that the lauds, the subject of the dispute, consisting of mauzas Kheru Chapra, Marwatya, and Rampur, belonging to taluqa Kharautii, formed portions of the above mauzas at the time they were leased to them in the decennial settlement made in 1197 fasli,--i.e., 1790 A.D., by Mr. Duncan, afterwards converted into a permanent settlement under Regulation I of 1795; they allege that the boundary of the taluqa was the main channel of the Gogra, situated as it is now, and that the taluqa was south of it, and comprised the lands in dispute; that in 1879 the revenue authorities re-measured the lands of the mauzas, and treated the area disputed as alluvion, accreted since 1790 A.D., and made an assessment upon it in contravention of their right ; and the relief sought by the plaint of the plaintiffs, as amended in April 1881, is that a decree be passed in favour of the plaintiffs, who allege themselves to be still in actual possession, for declaration of their right to these lands on the ground that they form part of the area in respect of which the permanent settlement was made, and by right of ancient hereditary possession; and that the orders of the Assistant Collector of Ballia, dated the 3rd April 1879, and of the Commissioner of Benares, dated the 14th October 1879, be declared invalid and ineffectual, so far as they are prejudicial to the plaintiffs' rights.
3. The first of these orders is by the Assistant Collector, directing that the plaintiffs be asked whether they will accept the assessment, and the second that of the Commissioner's, directing that the plaintiffs' appeal from the Assistant Collector's order, dated 3rd April 1879, be dismissed.
4. The defence is, that the boundary of the taluqa, which was leased in the decennial settlement in 1790 or 1197, was the nullah Bahera, the southern branch of the Gogra, and these lands are to the north of it, and excluded from the permanently settled area; that the total area of the three mauzas Eampur, Kheru Chapra, and Marwatya, permanently settled with the plaintiffs, was 2,200 bighas, which is still the area south of Bahera nullah; that the disputed lands, which are called 'Diara'--a tract of alluvial land, were not in existence then, but accreted subsequently, or if they did exist at that time, they appertained to the muafi mahal in the Saran district, on the other side of the river Gogra; that in 1800 or subsequently the stream of the Gogra left the nullah Bahera and began to flow to the north, thus transferring the lands in dispute to the south of the main channel, as accretions to the plaintiffs' mauzas, and such accretions became liable to assessment under Section 104, Act XIX of 1873, and the old Regulations; that the plaintiffs cannot contest the right of the Government to make a settlement and assess revenue.
5. The Subordinate Judge, in a very carefully considered judgment, has found that the plaintiffs have proved that the lands in dispute form part of the area which was permanently settled with their ancestors; and he further considered that, by length of possession free from further assessment, they have established a right to hold these lands free form assessment of revenue; that there is no law which precludes a Civil Court from entertaining a claim to contest the right of Government to collect revenue from any zamindar in excess of the amount sanctioned by Government, or to fix a new enhanced demand on mahals settled for a term before that term expires, or on permanently settled mahals; that a Civil Court can at any rate do so much as to declare the zamindar's two-fold right that the land which is being newly assessed is part of the land settled previously, on which an assessment cannot be made, or that, owing to the lapse of a term of sixty years, the zamindar has acquired a right to hold the land for the future in the same way and manner, without paying a new or increased revenue, as he has hitherto held it; and he adds that the plaintiffs pray only for a declaratory decree regarding the above point and not the other points; and the Subordinate Judge makes a decree declaring that the land in dispute was not excluded from the true area of plaintiffs' villages, and reference to which has been made in the decennial settlement, at the time of the permanent settlement, but that it is included in the permanent settlement; that if it be otherwise, the defendant has no longer a right to fix a revenue on the land in dispute owing to lapse of time; and allows plaintiffs their costs.
6. The defendant has appealed, and the objections may be summed up to be-
1. In regard to the lower Court permitting the plaintiffs to amend their plaint.
2. That no declaratory decree can be given, especially as the plaintiffs are out of possession; and that the Government has adopted proceedings to realize the revenue assessed.
3. That it is not proved that the land in dispute formed part of the area of taluqa Kharauni settled with the plaintiffs; but on the contrary it did not form portion of that taluqa, and was not settled with any one.
4. That a decision made in 1839 as to this land has become final.
5. That the plaintiffs cannot obtain a right to hold the land free from assessment of revenue by long possession.
6. That the Civil Court has no power to question or set aside settlements of land or assessments of revenue.
(After disallowing the two first objections, the judgment continued):
The next, in the order in which I have put them, relates to the decision on the merits; and I concur in the conclusions which the Subordinate Judge has arrived at, as the result of his very careful examination of the evidence in the case.After referring to and commenting on the evidence, the judgment continued:
The facts above recited sufficiently show, in my opinion, that these lands were part of the area permanently settled with them.After a recapitulation of the facts the judgment continued:
I think the above facts sufficiently establish the plaintiffs' title. I do not, however, agree with the Subordinate Judge in holding that any length of possession of these lands free from revenue would give plaintiffs a title by prescription to hold them free from assessment with revenue.The above remarks dispose of the case on the merits.
There are, however, some legal questions to be considered.
(After holding that the fourth objection was clearly untenable, the judgment continued:)The next point is the jurisdiction of the Civil Court in this suit.
7. It is to be observed that the Subordinate Judge has not decreed that portion of the claim which seeks to set aside orders of the Revenue authorities, and the decree he has made is confined to a declaration that the land in suit was not excluded from the area of the plaintiffs' villages, but on the contrary was included in the area permanently settled with them; and to a further declaration that, were it otherwise, the defendant has no right to make a new assessment of revenue upon the lands owing to lapse of time.
8. The declaration contained in the last part of the decree must be cancelled, since, as already stated, limitation cannot be pleaded against the right of the State to assess with revenue lands hitherto held revenue free.
9. The decree of the Subordinate Judge will then be limited to a declaration that the lands in suit formed part of the area that was permanently settled with the plaintiffs' ancestors at the decennial settlement, and such a decree does not appear open to any objection on the ground that the Civil Court has no jurisdiction to make it.
10. The question raised and dealt with is whether the plaintiffs have a right to the lands as forming part of a mahal held by their ancestors under decennial leases in 1790, and subsequently settled with them under a permanent settlement, which in consequence are not legally liable to further assessment for revenue; or, on the other hand, the lands formed no part of such area, and have subsequently accreted, and are liable to be assessed. The decree does no more than declare rights which the plaintiffs have had conferred upon them in pursuance of enactments of the Legislature, and the adjudication upon such rights is within the province of the Civil Courts, whether or not there may be involved questions of the liability of land to assessment for revenue.
11. We have here no question properly of the Civil Court's jurisdiction being excluded in respect of acts done in the exercise of sovereign powers, for the suit is for alleged wrongful acts of the Revenue officers in violation of rights 'conferred on the plaintiff's by the Legislature and the Civil Court's jurisdiction does not appear to be excluded by express legislation in Section 24] of the Land Revenue Act, which has specified the matters over which Civil Courts exercise no jurisdiction.
12. The matter does not come under (b), Section 241. There is here no question of the claim of any person to be settled with, or the validity of any engagement with Government for the payment of revenue, or the amount of revenue to be assessed on any mabal or share of a mahal.
(D) Section 241, allows the Civil Courts no jurisdiction over the 'matter of the notification of settlement,' but we are not in this suit concerned with that. The notification referred to is probably that made under Section 36, which directs that 'whenever the Local Government thinks that any district or other local area liable to be brought under settlement should be so brought, it shall publish a notification specifying such area.
13. The expression 'matter of the notification of settlement' is very vague, but possibly it was only intended not to allow suits to set aside settlements on the ground that the notification was not duly issued; and however this may be, the claim decreed does not touch upon the legality of the notification. A Civil Court may declare certain lands to be part of an area already permanently assessed for revenue, and in consequence not liable to further assessment, without interfering with the notification.
14. The only part of Section 241, which has been referred to in order to oust the jurisdiction of the Civil Court, is Clause (h), namely, matters provided for in Sections 79 to 89, which refer to the resumption of rent-free grants and liability of rent-free lands for Government revenue; but obviously the matter in this suit is not one of those. The case referred to by the Subordinate Judge--The Government v. Rajah Raj Kishen Singh 9 W.R 427 --appears to support the view here taken. The plaintiff in that case sued to have his right declared to certain lands as part of a mahal permanently settled, and to set aside a survey and proceedings incidental to it, by which the lands were claimed by the defendant as excluded from plaintiff's permanently settled mahal. It was held that the Civil Courts had jurisdiction in the matter. The difference between that case and the one before us is, that in that case the Government had not, as here, recognized the proprietary right of the plaintiff to the lands, or made an assessment of the lauds, and offered to settle them with him.
15. The case of Collector of Futtehpore v. Munglee Pershad N.W.P.S.D.A. Rep. 1854 p. 167 is very much in point. The object of the suit was to resist the demand of Government for the revenue of certain lands, on the ground that they had already been assessed with revenue, and the plaintiffs were not liable to be called on to pay the same amount twice over; and the claim was entertained and allowed. The Court observed: 'The majority of the Court disclaim all intention in this judgment of interfering with the Government's acknowledged power of determining the assessments of the revenue: with this power the Civil Courts have no authority to interfere, nor do the majority of the Court interfere with it in the present instance. They merely declare judicially that the Government has, through its revenue officers, assessed the land in dispute as part and parcel of the villages of the respondents, who Are not legally subject to any further demand on that account.'
16. In Rajah Rughonath Suhaee v. Bishen Singh N.W.P.S.D.A. Rep. 1855 p. 302 which was a suit brought to set aside an order passed by the revenue authorities, by which defendants were admitted to the settlement of mauza Sirsya to the exclusion of plaintiff, in contravention of a settlement which had previously been made with plaintiff, the Sudder Court held that the existing Regulations confer no power on the revenue authorities of remodelling at their will and pleasure settlement arrangements regularly entered into, so long as the party admitted to settlement fulfils the terms of his engagement, and the Court allowed the claim, finding on the facts in the case that the party admitted to the direct management of the estate had no rights in it beyond those of a mere ryot or cultivator.
17. The case of Zoolfikar Ali v. Ghunsam Baree N.W.P.S.D.A. Rep. 1865 p. 92 may also be referred to, to show that the Civil Courts have exercised jurisdiction to enforce rights of parties under a settlement, and to set aside orders of the revenue authorities in contravention thereof. A case decided by the Madras High Court--Sri Uppu Lakshmi Bhayamma Garu v. Purvis 2 Mad. H.C. Rep. 167 --may also be referred to. The question was the jurisdiction of the Civil Courts to entertain a suit brought to try a question of liability to the public revenue assessed upon land. The plaintiff sought to establish, as the judgment states, that the lands were legally exempt from an additional assessment to the water-rate, on the ground, first, of a right by long enjoyment of the free supply of the same quantity of water from an old canal, (of which it was alleged the Government officer had cutoff the supply), as was obtained from a new canal which they had made, and with reference to the supply from which the plaintiff had been assessed with water-rate; and secondly, on the ground that the lands were of the description excepted from the assessment by the rules promulgated by the Board of Revenue for the levying of the water-rate. The Court (Scotland, C.J., and Phillips, J.) observed: 'The suit, then, is clearly a suit of a civil nature, brought for alleged wrongful acts by an executive officer of Government, and, in the absence of any express legal enactment or provision, we think the circumstance that the acts complained of were done in enforcing payment of a revenue assessment sanctioned by Government, did not, per se, preclude the jurisdiction of the Court to entertain the suit. There no doubt may be acts done by the Government through its executive officers, which, though not contrary to any existing law, may be regarded as grievances; and undoubtedly acts that could not be considered as contrary to any existing right acquired under the laws administered by the Municipal Courts, would afford no cause of suit, and a plaint in which such an act appeared to be the only subject-matter of complaint would properly be rejected in limine.... But in the present case the plaintiff sets up that she possesses a legal proprietary right in the land entitling her to the supply of water free of the assessment--a claim of legal exemption--and seeks to recover in respect of an act done in violation of such legal rights, as also of the Revenue rules in force, and, until altered, binding upon the defendant; and we think the question in this, as in other suits of a civil nature, is whether the cognizance of the suit was barred by any Act or Regulation in force when the suit was brought.'
18. I would affirm the Subordinate Judge's decree, declaring that the land in dispute was included in the area of the plaintiffs' villages, for which a permanent settlement was made, and is not liable to further assessment for revenue; and I would dismiss the appeal with costs.