1. These two appeals are in two suits, title suits Nos. 18 and 19 of 1932 respectively, filed by the Midnapore Zamindary Co. Ltd. In both these suits the Secretary of State for India in Council is the principal defendant. There are also some pro forma defendants to both these suits, but it is not necessary to notice them in these appeals. The first suit comprises some alluvial lands which lie within the ambit of five villages, Mobarakganj, Raja-gola, Nasipore, Khamardiar and Mansurpur alias Durgapore within the jurisdiction of Thana Bhagwangola. They have been formed from the bed of the river Bhairab as depicted in the revenue survey map prepared in the year 1855. In 1929 resumption proceedings were started by the Government, revenue was assessed on them and those lands were formed into a Diara estate No. 3214 of the Murshidabad Collectorate. The Midnapore Zamindary Co. Ltd., called hereafter the company, claims these lands as appertaining to the permanently settled estate no. 523 of the said Collectorate of which it is the patnidar under the Raja of Nashipore, the proprietor of that permanently settled estate. An alternative ease is made in the plaint that the suit lands are portions of 8888 bighas 6 cottas of land which were released from assessment of revenue in 1846 in a resumption proceeding started by the Government in 1836 on the footing that the said area had already been assessed to revenue at the time of the permanent settlement of estate No. 523. The prayers are for a declaration that the creation of Diara estate No. 3214 was ultra vires and for a further declaration that the company is entitled to enjoy the suit lands as part and parcel of its patni taluk.
2. The second suit comprises alluvial land within the ambit of mouza Hasanpore in thana Bhagwangola. This piece of land has also been formed at the site of the river Bhairab as shown in the revenue survey map of 1855. In 1926 the Government started resumption proceedings, assessed the same to revenue and created a Diara estate No. 3213 of the Murshidabad Collectorate, The company is proprietor to the extent of six annas share and patnidar to the extent of the remaining ten annas share of the permanently settled estate No. 465 of that Collectorate. It claims the suit lands as part of the said permanently settled estate. There is also, as in the other suit, an alternative case that the suit lands are portions of 700 bighas of land which had been released from assessment of revenue in 1847 in the course of a resumption proceeding started by the Government in 1846. Prayers similar to the prayers made in the other suit were made in this suit. In both the suits the company says that at the time of the Permanent Settlement of these two estates Nos. 523 and 465, there was no river at the site at which it has been shown in the revenue survey maps of 1855, i. e., that the suit lands were dry lands at the date of the Decennial Settlement made permanent in 1793 and were accordingly assessed to revenue then. In suit No. 18 a special case has been made. It is that the whole of perganah Goas which is included in estate No. 523 and within which the suit lands lie, everything within it, 'whether land or river-bed or damosh or sand, was assessed to revenue at the Decennial Settlement.' The learned Subordinate Judge has upheld this contention. He has further held that the bed of the river as flowing at the time of the revenue survey of the year 1855 was dry land at the time of the Decennial Settlement of estates Nos. 523 and 465, and so the further assessment made in the Diara proceedings was ultra vires. He has, however, held that the alternative case set up by the company was not established, as the suit lands could not be identified with the lands which had formed the subject-matter of the resumption proceedings of 1836 and 1846.
3. For the purpose of enabling him to decide the material points in controversy the learned Subordinate Judge appointed a Pleader Commissioner, Mr. Biswa Nath Roy. The said Commissioner has prepared one case map for the two suits. Therein he has relayed a map annexed to the judgment of the settlement officer, Mr. Bijoy Mukherjee (ex. Eo-C 885).
We have marked the paper books thus:Part I of F. A. 248 of 1935 ... APart II Vol. I of ... BPart II Vol II of ... CParts I & II of F. A. 167 of 1936 ... D' of F. A. 168 of 1936 ... E
4. The learned senior Government Pleader has not disputed before us the correctness of the relay of the congregated map on the case map, but urges the following points before us : (1) The congregated map is an inaccurate map; if it had been prepared correctly it would have shown that the position of the river as at the time of Major Rennel's survey was practically at the same site as was occupied by the river at the time of the revenue survey of 1855, (2) that even if the congregated map is a correct map, no inference can be drawn to the effect that the river was in the same position at the time of the Decennial Settlement as it was in 1769-1771 when Major Rennel made his survey, (3) that the learned Subordinate Judge has misplaced the onus and (4) the learned Subordinate Judge was in error in holding in suit No. 18, that even the channels of flowing rivers in perganah Goas had been assessed to revenue at the Decennial Settlement and included in the assets of the permanently settled estate No. 523.
5. The learned advocate appearing for the company besides supporting the findings of the learned Judge has urged a further point, namely that on the evidence the learned Judge ought to have held that the suit lands in both the suits had been released from further assessment of revenue in the resumption proceedings of 1836 and 1846.
6. The first point of importance is whether the suit lands were dry lands at the date of the Decennial Settlement, that is, not in the bed of a flowing river at that time. The onus of proving the said fact lies upon the zamindar or his representative. It must be held in this case to lie upon the plaintiff company. To discharge the said onus the company says that in 1769-71 the river was not at the site of the suit lands. The only river branching from Pudma as shown in Rennel's map at the relevant locality was Culcully and that river did not occupy the same site as was occupied by the revenue survey river Bhairab. That is the first step in the case of the company as represented to us by its advocate. To establish this first step the learned advocate for the company relies strongly upon the congregated map in which as its relay on the case map shows, Rennel's river Culcully is shown at a place different from the site of the revenue survey river. The congregated map, as we have already said, contained a relay of Rennel's river as appearing in his map and the relay of the river as appearing in the revenue survey maps of 1855. If the congregated map represents a correct relay of the relevant portions of Rennel's map and of the revenue survey maps of 1855, the first point urged by the company is established by the congregated map itself. For the purpose of displacing that point the learned Senior Government Pleader urges that the congregated map is not a correct map. For examining his argument it would be necessary to notice how that map came to be prepared and to examine the materials on the record advanced in support of that argument. It is admitted that the suit lands are alluvial formations formed out of the bed of the revenue survey river-by revenue survey river we mean the river Bhairab as shown in the revenue survey maps of 1855. In or about 1923 survey and settlement under Part 2 of Chap. 10 of the Ben. Ten. Act, was started by the Government.
7. In 1926 in one case and in 1929 in the other the Diara Officer started proceedings for assessing the suit lands and other lands which had also come out of the bed of the said revenue survey river to revenue. Objections to those proceedings for assessment of revenue were filed by the company and other proprietors. We are here concerned with the objections filed by the company. Its objections were numbered Case Nos. 329 and 330 of 1930. One of the grounds of objection was that the lands could not be assessed to revenue as the river was not at the site of those alluvial lands at the time of the permanent settlement of 1793. For the purpose of supporting that case the company relied upon Rennel's map and Colebrooke's map, but the Diara Officer who heard the cases disposed of its argument by saying that 'Rennel's map and Colebrooke's map, were not drawn to any scale and they cannot therefore be relaid,' (ex. E, C. 870 at 877), an observation which discloses a degree of ignorance which cannot be expected of a Diara Officer. By his judgment dated 5th July 1930 he dismissed all the cases including Case Nos. 329 and 330 of 1930.
8. Separate appeals were taken from that judgment by the company and others affected to the Settlement Officer, and the same point was pressed before him. Apparently the Settlement Officer could not accept the aforesaid observations of the Diara Officer. He accordingly directed the relay by a Government surveyor of the relevant portions of the map of Rennel and of the revenue survey map. That was done on the map which we have called the congregated map. That map prepared by a Government surveyor at the direction of the settlement officer lent support to the case of the appellant company urged before the settlement officer, that the alluvial lands which were sought to be assessed to revenue had not been formed out of the bed of Rennel's river. The learned Settlement Officer made the following observations : (1) that Rennel's is not a scientifically accurate map; (2) that it is not mathematically relayable; (3) that it was an admitted doctrine that Rennel's map cannot be made the basis for adjudication of land revenue; and (4) that he got Rennel's map approximately shown in the congregated map. Then he got rid of the effect of the congregated map by observing thus:
Allowing for the nature of Rennel's map it is evident that Rennel did not show the main channel almost in the same tract, a little judicious shifting allowable even in scientific comparison can bring this unscientific map of Rennel to show the river almost in the position of the R. S. river.
9. In the above passage which we have taken from the judgment of the settlement officer (Ex. E l-C,885 at 886 and 887) we ourselves have underlined (italicised here) some words to bring into prominence some of the material remarks made by the settlement officer. In our judgment each one of the four reasons given by him is either incorrect or misleading and his conclusion unsound. In the first place so far as river surveys and road surveys are concerned Rennel's maps are scientific and accurate ones, only the village sites shown in his map are approximate, and the question before the settlement officer so far as company's cases were concerned related to the position of the flowing river as shown in Rennel's map. It is also an incorrect statement when the settlement officer said that it was an accepted doctrine that Rennel's maps cannot be made the basis for adjudication of land revenue. The decision and observations of Lord Buckmaster in Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86 and of the Right Hon'ble Sir George Rankin in Pramatha Nath v. Nanilal are against the view taken by the settlement officer. No doubt owing to the difference in scale, the purpose for which it was made and the difficulty of assigning fixed points from which the survey was made, there may be difficulty in incorporating Rennel's map into the revenue survey map but it is not an impossible task. In a sense Rennel's map cannot be relaid with mathematical accuracy. Any map, however scientifically made, cannot be relaid on another map with mathematical accuracy, for the fitting points cannot in moat cases be determined with mathematical precision. As Lord Buck-master observed in Haradas Acharjya v. Secretary of State ('17) 4 AIR 1917 PC 86: 'assumptions have to be made, that these assumptions cannot now be exact but assumptions are necessary.' There is no evidence that the Government surveyor who prepared the congregated map was not a surveyor of experience or skill. The presumption must be the other way.
10. We cannot accordingly follow the settlement officer when he said that as he had Rennel approximately relaid the congregated map has to be put aside. Certainly he could not have instructed his surveyor to prepare a map in a rough and ready fashion when claims to large areas were involved. His condemnation of Rennel's survey of the river as unscientific is not justified and his 'judicious' shifting is misleading. Having regard to the configuration of Rennel's river and of the revenue survey river - their bends etc., no shifting, judicious or biased, would make substantial portions of the two rivers coincide to any degree. This would appear even from that portion of the congregated map which has been relaid on the case map. The learned Senior Government Pleader handed over to us the original congregated map to which we looked with the consent of both parties. A look at the original map, portions of which have only been re-laid on the case map, would have convinced anybody that the two rivers could not be made to coincide substantially with any amount of manipulation. 'We cannot see eye to eye with the settlement officer and cannot for the reasons given by him hold the congregated map to be so inaccurate as to be rejected. No other material has been placed before us from which we can conclude that the congregated map is an inaccurate one. We accordingly hold that the congregated map must be taken into consideration. It amounts almost to an admission of the Government that Kennel's river was at a different site from the revenue survey river, from which follows the necessary inference that the site of the revenue survey river was dry land in 1769-71 when Major Rennel made his survey of this part of the country.
11. It appears from the record that the Decennial Settlements of estates Nos. 523 and 465 were made in the year 1783 (Ex. B, C 870 at 874) and not in 1790 as in the case of other estates in Bengal. The Decennial Settlements were accordingly about twelve years after Rennel's survey and nine years after the preparation of his map. During this intervening period there was no survey or map of the river. The river called Culcully by Rennel was a comparatively small branch issuing out of the river Padma, one of its mouths being then at Bhagwangola, which was quite near to that portion of the river Culcully with which we are concerned in these two suits. The learned Senior Government Pleader contends that a change of the course of the river Padma would naturally effect a change in the position of this part of the river Culcully which was quite near to its junction with the Padma. That contention may be accepted but it has no material effect on this part of the case, for, there is no evidence on the record that the river Padma changed its bed between 1769 and 1783 or even up to 1790. In these circumstances ordinarily an inference may legitimately be drawn that the river Culcully continued to be substantially in the same position in 1783, when the Decennial Settlement, made permanent in 1793, was made, as at the time of Rennel's survey: Pramatha Nath v. Nanilal . The inference is stronger in the case before us for there is positive evidence that even the river Padma at the locality did not begin to change its bed till the year 1201-1202 B.S. corresponding to 1794-95. That evidence is summarised in the following paragraph.
12. In the year 1830 resumption proceedings for the purpose of assessing to revenue 6500 bighas of alluvial land in Azmatpur, Habaspur, Mahisthali, Kantanagar and Chandipur which had accreted from out of the bed of the river Padma were started by the Government. To those proceedings the zamindar put in objection. His case was that those lands were dry lands at the time of the Decennial Settlement of his estate but after the Decennial Settlement and before 1205-1206 (1798-99) the river Padma had come upon those lands and later on receded from there, leaving them as dry lands again, so the lands could not be assessed again to revenue, as they had already been assessed at the Decennial Settlement. In the course of those proceedings the depositions of two witnesses, Gourhari Dutt and Khudadin Mondal, were taken on behalf of the Government (see B-175). Their depositions have been marked Ex. B and Ex. B-1 (B-169 and 172). Both of them stated that since 1201-1202 B.S. those lands were diluviated, and re-formed again about 20 years later. Their depositions came to this: that after the Decennial Settlement, the river Padma moved southwards and came very near Mahisthali, That fact is corroborated by Colebrooke's map (Map No. 2l) prepared in the season 1796. 1797. A remark noted by him at the place where he has shown Shunkerpore indicates that the river Padma was still shifting southwards. The southern bank there was a steep and crumbling one. The statements made by those two witnesses were very material for the resumption case. They were accepted and the lands were released (Ex. 4, B-174 at 176 and 177). From the point of view of the plaintiff company these two cases which we have before us are stronger than the case in appeals from original decrees Nos. 120 of 1935 and 160 to 163 of 1936 decided on 13th June 1939, Secy. of State v. Hemanta Kumari Debi. We accordingly hold that the plaintiff company has discharged the onus and has proved that the suit lands were not in the bed of a river at the time of the Decennial Settlement of Estates Nos. 523 and 465. This disposes of the first three grounds urged by the learned Senior Government Pleader. There may be some legitimate criticism on a part of the learned Subordinate Judge's judgment and some passages may imply that he was misplacing the onus, but that is now immaterial, for we hold that the onus which was on the company has been discharged by it in the manner which we have indicated above. This finding of ours is sufficient for the disposal of those two appeals. But as the learned Subordinate Judge has gone further and held that even if the suit lands of Suit No. 18 had been in the river bed at the Decennial Settlement the plaintiff company is entitled to succeed, it is necessary that we should record our judgment on the correctness of the learned Subordinate Judge's conclusions.
13. For examining this question the decision of the Privy Council in Secy. of State v. Maharaja of Burdwan ('22) 9 AIR 1922 PC 6 must be kept in view. It was decided therein that churs formed out of the bed of navigable or non-navigable rivers since the Decennial Settlement are prima facie liable to be assessed to revenue. The river bed may be the property of the zamindar. To negative the claim of the Crown the zamindar must prove that (1) the lands were actually in existence at the time of the Decennial Settlement and (2) specifically included in the estate as settled. These two elements mean the same thing, for the assets of dry lands and of dry lands only were taken into ac-count for assessing estates at the Decennial Settlement, and it is only for the purpose of convenience that we take into consideration these two elements separately. For the purpose of the first element the bed of a flowing river, navigable or non-navigable, passing through a permanently settled estate cannot be regarded as waste land covered with water, and placed in the same category as waste lands covered with jungly weeds. The word 'lands' in Section 31 of Regn. 2 of 1819 means what the word ordinarily means and not what in Lopez v. Muddun Mohun Thakoor ('70) 13 MIA 467 was treated as land on the basis of a fiction of law. For the purpose of the second element the fact that the river bed from which the chur had been thrown up was at the date of the Decennial Settlement the property of the zamindar or that that settlement was imposed upon the zamindari as a whole is not sufficient. The averment in the plaint that pergana Goas (which appertains to touzi No. 523) was settled at the Decennial Settlement as a compact block is accordingly immaterial.
14. The kabuliat of the permanent settlement has not been produced in the case. The company called from the Government some papers including the said kabuliat. The assistant record keeper of the Murshidabad Collectorate, Kundkar Habibar Rahman, produced some of the papers called for but not the kabuliat. He was examined as a witness both for the plaintiff and for the contesting defendant. No suggestion was made to him that the kabuliat was in existence at this distance of time and had been withheld by the Government. In these circumstances we cannot agree with the con-elusion of the learned Judge that the said kabuliat, if produced, would have gone against the Government. The only piece of evidence on which the learned Judge has placed reliance is the set of rokbabandi papers (Ex. 12-B. 1). Those are compulsory returns made to the Collector by the then zamindar Rajah Debi Singh under the provisions of Regn. 48 of 1793. There cannot be any question about their admissibility, genuineness or correctness. They were accepted as genuine and the areas mentioned therein were accepted as correct and on the basis of the areas of land mentioned therein, Government released in the past from additional assessment some lands in Chur Dumuria and others (Ex.34-C 744 at 770 to 772, etc.).
15. The plaintiff company in support of its case, that the rivers flowing through purgana Goas branching from the Padma (but not the river Padma) were taken into consideration in assessing revenue at the Decennial Settlement relies upon the heading of one of the columns mentioned in the rokbabandi papers. That heading runs thus: Hasil patit garlayek saran kabar tari daman koho Padma Balu murdda goraha. There is no punctuation in the original but the learned Judge has punctuated the sentence and we think that he has misplaced a comma at the material portion. The words up to kabar are not material and the learned Subordinate Judge has correctly punctuated that part of the sentence. The zamindar was stating in that column the area of hasil (cultivated land) patit (fallow land) garlayak (land not cultivated but fit to be cultivated) saran (road) kabar (graveyard). The next phrase is material. It is tari daman Kaho Padma. These words are Persian words. The learned Subordinate Judge has taken tari daman to be one phrase and Kaho Padma to be another. Tari means wet and daman means lower part of a lady's skirt; applied to a mountain or a river it means its bottom. The Persian Ko pronounced with a hard accent like Koho means hill or high place (Johnson's Persian-English Dictionary pp. 334 and 1031.) The correct Persian phrase is daman-i-ko which means skirt of a mountain (Johnson's Dictionary, p. 553). The word damon must go not with tari but with koho or ko, the word i being dropped. The last portion of the sentence must not be broken up into two phrases tari damon and koho padma, as the Subordinate Judge has done, but it should read as tari, that is one item, and then the phrase damon koho padma, e. g., a colloquial abbreviation of the correct phrase damon-i-ko-padma. The sentence accordingly means water, bottom or end of the high bank of the river Padma. The word tari (water) signifies not necessarily a flowing river, for tanks, beels, marshy land, which are found in every part of Bengal and especially near rivers like Padma and Bhagirathi, would ordinarily be included in the term. It is also significant to note that the word nadi which is the common word used to signify a river is not used in the rokbabandi. In any event we cannot infer from the heading the fact that the Government had in this ease departed from the usual course and had at the Decennial Settlement of this estate assessed the beds of flowing rivers running through the estate. We accordingly uphold the contention of the learned Senior Government Pleader and set aside the finding of the learned Subordinate Judge on this point.
16. The commissioner Mr. Biswanath Roy came to the finding that the suit lands in Suit No. 19 could not be identified with the 700 bighas which formed the subject-matter of the resumption proceedings of the year 1846 and which were released in 1847. That finding of the commissioner was not challenged before the learned Subordinate Judge and has not also been challenged before us by the respondent's advocate. The commissioner, however, found that a good portion of the suit lands of suit No. 18 are identical with the lands which were the subject-matter of the earlier resumption proceedings, which were eventually dropped. The learned Subordinate Judge refused to accept the findings of the commissioner based on the relay of the resumption chittas. He proceeded upon the ground that the commissioner's work could not be regarded as accurate or reliable. We hold that he had rightly estimated the value of this part of the commissioner's work. Hand-sketches prepared at those resumption proceedings, maps not to scale, were produced before the commissioner. Those maps could not be relaid and the commissioner rightly made no attempts to relay them. The resumption chittas were produced before him and those chittas he has relaid on his case map. The chittas contain no bearings but linear measurements in bighas and cottas, i. e., in cubits, are given and it is noted that the measurement was according to a hat kati (measuring rod) which was then supplied. There is no evidence as to what was the length of that rod which from its name implies a rod of one cubit in length. Assuming that the cubit rod employed was 18 inches in length the commissioner made the relay. The result was, as he himself states in his report, that gaps remained. That shows that the cubit-rod was not 18 inches in length. Still he took the measuring rod to be 18 inches. In the first place it is difficult, if not almost impossible, to relay an old chitta of that kind. In the second place the relay cannot be taken as reasonably accurate and reliable unless the standard of measurement employed in preparing the chittas is known or definitely proved. We cannot accordingly disagree with the finding of the learned Subordinate Judge. This point urged by the respondents' advocate is accordingly overruled.
17. The result is that we affirm the decrees passed by the learned Subordinate Judge on the ground that the company has proved that the lands in suit were dry lands at the time of the Decennial Settlement and had been included in the settlement of Estates Nos. 523 and 465 and dismiss appeals Nos. 248 and l68. The plaintiff-respondent must have costs of these two appeals from the appellant, consolidated hearing fee being assessed at Rs. 500 only.