S.K. Ghose, J.
1. The plaintiff, who was successful in the Court of first instance but has lost in the Court of appeal below has preferred this appeal. Put quite shortly his case is as follows: He is the patnidar of Taraf Pabna, within Pargana Rokanpore, consisting of Mouzahs Gopalpur, Dilalpur, Raghabpur, Mukandpore, Brojonathpore and Arippur. This taraf formerly appertained to Touzi No. 485 of the Rajshahi Colleotorate and at present appertains to Touzi No. 692 of the Maldah Collectorate. He pays a putni rent of Rs. 4,500 a year for the taraf to defendant 2, the zamindar. A total area of 58'8025 acres of lands, corresponding to about 180 bighas, were assessed by the Government in 1924 which he believes are really lands which had been permanently settled and included in the Touzi and are not additional or added lands. This assessment was made as the result of diara proceedings taken on the basis of the Cadastral Survey and Settlement of 1919 to 1922. The diara proceedings were started in 1923 and the lands being assessed, defendant 2 was asked to take the settlement, but he refused and the Government then decided to keep the lands in their khas possession in 1925 to 1928. By issuing certificates under the Demands Recovery Act, the Government realized Rs. 721-10-6 from the plaintiff and eventually in 1928 themselves purchased the lands of Gopalpore and Dilalpore.
2. The plaintiff then instituted the present suit for establishment of his putni talukdari right to the lands and his right thereto by adverse possession, for a declaration that the lands are not assessable to fresh rent or revenue, for a declaration that the certificate proceedings were illegal and ultra vires and the sale held thereunder void, for recovery of khas possession with mesne profits of the lands purchased by the Government, and for refund of the moneys realized by Government by the issuing of certificate. The contentions urged in the appeal are several, but examined carefully they fall under four broad heads which, put quite baldly, may be said to be the following: (1) that the onus has been misplaced; (2) that the diara proceedings are vitiated by fundamental irregularities; (3) that material documents have been withheld; and (4) that the area extracted and assessed is wrong. To be fair to Mr. Bose, who has appeared on behalf of the appellant, it has to be said that the arguments addressed to us under each of the heads have been directed to establish that the error as regards each of these heads is an error of a description and partakes of a character which may be investigated and remedied in a suit, such as the present in a civil Court.
(1) On the question of onus, the decisions strongly relied on are the cases in Secy. of State v. Upendra Narain Roy AIR 1923 Cal 247 and Sreenath Roy v. Secy. of State AIR 1923 Cal 233, as supporting the proposition that where the jurisdiction of the revenue authorities is challenged, the burden of proof lies on the Crown to establish that the land attempted to be assessed is 'added land', that is land not included in the original assessment. We think the proposition is not tenable in view of the two decisions of the Judicial Committee in Secy, of State v. Fahamidannissa Begum (1890) 17 Cal 590 and Jagadindra Nath Roy v. Secy. of State (1903) 30 Cal 291 at p. 53. The former case is an authority for the proposition that the party appealing to the civil Court has to establish that the Court has jurisdiction and that the Board have acted ultra vires. And in the latter case it has been definitely held that the onus of proving that any particular land was already included in the Permanent Settlement of 1793, in other words the onus of proving that the Government revenue then fixed was assessed upon any particular land, is clearly on those who affirm that such was the case. Such also is the view which the learned Judge has taken in this case. The Judicial Committee in a later case in Secy. of State v. Jatindra Nath AIR 1924 P C 175 has again affirmed the proposition that the burden of establishing such essential and fundamental violation of statutory requirements rests upon the person alleging it. Reference in this connexion may also be made to the judgment of Rankin, J., as he then was, in Soudamini Dassya v. Secy. of State AIR 1924 Cal 197 at pp. 839 and 842. The learned Judge, it seems to us, was inclined to the view that if it is shown that land already assessed to revenue has again been assessed, that also would make the proceedings of the Board ultra vires, and the civil Court then has jurisdiction to give relief and will not omit to do so even though no other fundamental irregularity is established.
(2) In order to establish that the diara proceedings were ultra vires, four points have been urged: (i) that the revenue survey trijunction of Mouzahs Dilalpore, Salgaria and Sibrampore was not correctly located at the time of the Diara Survey; (ii) that the congregated map Ex. 10 was wrong; (iii) that no local enquiry nor any enquiry contemplated by Reg. 2 of 1819 was made; and (iv) that no enquiry was made with reference to material documents. So far as points (i) and (ii) are concerned they go together. The diara operations in the present case extended over a very wide area and the diara map was not prepared with reference to the revenue survey trijunction of the three mouzas named. What has happened is that the plaintiff pointed out a particular point as the trijunction in question, and the Government Kanungo at first said that he could not say where the said trijunction lay and eventually located the trijunetion at a spot which was found to be incorrect.
3. The correctness or otherwise of the diara map could under no circumstances depend upon the correct location of this trijunction, since there is nothing to show that the diara map was prepared with reference to it. The presumption of correctness of the diara map has in no sense been rebutted by the mere fact that this particular trijunction has not been located. The learned District Judge has gone into these two points very fully and has pointed out that the oral and the documentary evidence in the case clearly shows that the said trijunction point played no part in the diara survery, and he has expressed the view that it is not profitable in the present case to enquire whether the Government Kanungo was right in pointing out the trijunction or where the said trijunction really lay. The congregated map (Ex. 10) would be wrong only on the assumption that either the plaintiff or the Government Kanungo was right in his location of the said trijunction point, an assumption which can hardly be made with certainty. On the other hand, the learned Judge has given abundant reasons for holding that the plaintiff's trijunction point should be rejected and that of the Government Kanungo is only an incorrect guess. It has also been argued that unless the trijunction point is correctly located, no comparison of the map for finding out the added area is possible; but we are not prepared to regard this contention as well-founded because superimposition, by which means the added area was found, is a well-known and recognized process. So far as points (iii) and (iv) are concerned, the learned Judge has found, in disagreement with the trial Court, that
the evidence of the diara staff, as also the report, show that local enquiries were made and such relevant documents as were likely to throw light upon the question were consulted.
4. We are unable to see how this finding, which is a finding of fact, can be interfered with; but even then we have examined its correctness and we find on the evidence enough materials in support of it. It has not been argued, though the ground was taken in that way, that it was necessary for the authorities to follow the procedure of Regn. 2 of 1819; and rightly so, because the machinery for assessment provided by that Regulation was very much altered by Act 9 of 1847. We fail to discover that there has been any departure from the procedure laid down in the said Act.
(3) The part of the case which has been argued by Mr. Bose with considerable insistence relates to the ground which he took as regards the non-production of relevant documents by the Collector. This part of the case is concluded by a most positive finding arrived at by the learned Judge after an elaborate consideration of the circumstances of the case. We permitted Mr. Bose to place before us all relevant materials bearing upon the matter, because in our experience we have had eases of this nature in which such a charge has not been found to be altogether unfounded. We are glad, at the end of the investigation we have made, to be able to affirm the conclusion of the learned Judge, which he has recorded in these words:
After a most careful consideration of the oral and documentary evidence on this point of withholding of papers by the Secretary of State for India in Council, my unhesitating conclusion is that no papers had really been withheld by the Secretary of State for India in Council and no adverse inference is to be drawn for withholding of any paper, and that the learned Subordinate Judge was wrong in drawing such inference.
5. We see no necessity to repeat what the learned Judge has said as regards this matter because we find that all that he has said in this connection is substantially correct.
(4) The fourth point has been pressed upon six different grounds: (a) Firstly it is said that 5.6 acres of asli land has been included in the assessment. It would be enough to say in answer that this area is based upon the Commissioner's map which, prepared as it was from the wrong trijunction point pointed out by the plaintiff, must be regarded as wrong, (b) Nextly it is said that abatement of revenue had been granted on acquisition of certain lands after the date of the Revenue Survey and before the diara operations, and that this constitutes an admission that the lands had already been assessed to revenue. Two answers to this contention would in our opinion be sufficient: first that these lands after acquisition are property of the Government and could not have been included in the diara area; and second that such small abatement is often granted as a ready means of avoiding protracted and costly proceedings which would be necessary if it has to be found out whether the lands have in fact been already assessed or not; (c) thirdly, it is urged that an area of 22 bighas 7c. of land called Cutchari bari land already assessed to revenue has been included in the diara. This contention again is based upon the Commissioner's map which has been found to be wrong on the ground of its having proceeded upon the basis of an incorrect injunction, (d) Then it has been argued that the diara area includes a quantity of land for which the proprietor, defendant 2, has already recovered a decree as re-formation in situ of his permanently settled estate of Mouzah Gopalpore. This contention does not appear to have been pressed before the learned Judge. But in any case the fact is hardly evidence in the present case against the Secretary of State who was no party to the suit in which such a decree was obtained; (e) fifthly, by a comparison of arrears of the estate at different times it has been sought to be established that there have been no added lands. The process adopted is the following: The Rokhabandi of 1201 B.S. (Ex. P) shows that the areas of Dilapore, Gopalpore, Raghabpur and Mukundapur, as given in the return submitted by the landlord, was 16,92 bighas odd. At the revenue survey the area of the mouzahs measured up to the middle of the river on the boundaries was 2,498 bighas odd, of which 201 bighas were under water at the time. The appellants computed on the basis of a cubit being 22 inches and therefore reduced to 18 inch cubit, would be 2,522 bighas and that the area had thus diminished at the time of the revenue survey to 2,297 bighas, and that therefore the permanently settled area had thus been reduced by (2,522-2,297) 225 bighas. The diara area now assessed is about 180 bighas, which is lease than the difference aforesaid, and from this it has been sought to be established that the lands now assessed were permanently settled lands. In our opinion this process of calculation cannot be adopted, because the standard of measurement of the Rokhaband area is not known. (6) Lastly, an attempt has been made to establish by reference to Rennel's map to show that at the date of that map, i.e. in 1779, the diara area was firm land. It is well known that for such a purpose Rennel's map is hardly conclusive.
6. In our opinion no fundamental irregularity in the proceedings has been established nor that in point of fact any part of the added area had been already assessed to revenue. The result is that the appeal fails and should accordingly be dismissed with coats to the Secretary of State.