C.C. Ghose, J.
1. Defendant 2 is the appellant before us and the appeal arises out of a suit instituted by the plaintiffs (who are descendants of the Raja of Chanchra in the District of Jessore) as shebaits to Sree Sree Shyam Roy Thakur for a declaration of their lakheraj debuttar title to and in certain lands in Pargana Emadpur situate in the District of Khulna but included in touzi 1 of the Nadia Collectorate, for recovery of khas possession of the same and for mesne profits. The lands in question are stated to be in mouza Dearah by the side of the river Kabatakshi. It is said that the lands in question have been possessed by the family of the plaintiffs for generations as shebaits, the original grant having been made by Raja Pratapaditya, an account of whom is to be found in Westland's Jessore. 2nd Edn., p. 23 and in O'Malley's Gazetteer of Jessore, p. 25. The plaintiffs state that at the time of the Decennial Settlement of 1790, the debutter character of the lands in question was recognized and the lands were exempted from payment of Government revenue. Subsequently there were resumption proceedings in respect of the said lands, which ultimately ended in 1842 when the Special Deputy Collector by his order dated 23rd May 1842 released the said lands as being lakheraj on the ground that they were debuttar. The plaintiffs alleged that their title as lakherajdars had always been recognized and that although they had made attempts from time to time to clear the lands which were in the Sunderbuns and full of dense jungles and to settle tenants thereon, they were not successful and the lands in question had remained unfit for occupation and settlement until five or six years previous to the institution of the suit. The plaintiffs alleged that in 1320 B.S. they had been informed that the defendant had taken wrongful possession of certain lands in mouzah Dearah and that they were further informed in 1323 B.S., that the defendant had erected a kutehery bari on the said lands. In these circumstances the plaintiffs instituted the present suit in the Court of the Subordinate Judge of Khulna on 25th May 1920 praying for the above reliefs.
2. The defendant denied the plaintiffs' title and urged that the lands in suit were within mouza Dearah in Pargana Bagmara included within the defendant's ancestral zamindari and alternatively that if ii be found that the plaintiffs had title thereto, he had acquired title by being in exclusive and adverse possession of the same for a. period of more than 12 years from 1313 B.S.
3. The learned Subordinate Judge by his judgment dated 22nd June 1927 found that the plaintiffs had made out a clear title to the lands in suit, that until quite recently the lands were incapable of occupation inasmuch as they were covered with dense jungle full of wild beasts and that the defendants had not succeeded in proving that he had been in possession of the said lands from 1313 B.S. adversely to the plaintiffs as alleged by him. The learned Subordinate Judge thereupon declared the plaintiffs' title to the lands in suit and gave them a decree for khas possession. He also awarded mesne profits from the date of the suit as per directions contained in his decree.
4. On appeal before us, the same contentions have been urged on behalf of the defendant and an elaborate argument has been addressed to us for the purpose of showing that there is no substance in the plaintiffs' contention and that they and their ancestors have been possession of these lands under their lakheraj title from 1790 down to date. It has therefore become necessary to examine closely the plaintiffs title; but before I do so, it may be useful to make a few preliminary observations, more or less historical, leading up to the plaintiffs' title. I will not attempt to reproduce the history of the Rajas of Chanchra, to which family the plaintiffs belong, at any length, because all the available materials are to be found in Westland's Jessore, O'Malley's Gazetteer of Jessore and Pargiter's history of the Sunderbuns. It appears that the ancestor of the plaintiffs originally had four Parganas namely, Saydpur, Atnidpur, Muragacha and Malikpur. Subsequently Pargana Esafpur was acquired by the family in addition to various other parganas. About 1745 the ancestral properties were divided into two shares (a) 12-annas share which was possessed by Nilkanta Roy and (b) a 4-annas share possessed by his uncle Shyam Sundar Roy. The last mentioned share passed out of the family altogether and may be left out of account. The 12 annas share came to be known as the Esafpur estate, that being the chief pargana in it. In the possession of the Esafpur estate, Sree Kanta Boy succeeded Nilkanta Roy in 1764 and it was this Sree Kanta Roy who had possession of the estate at the time of the Decennial Settlement.
5. It may be stated in passing that prior to the Decennial Settlement, various settlements had been made by the East India Company from time to time and that during the currency of these settlements the District of Jessore as it then existed was comprised within the famous 'Huzuri Mehtls' of Warren Hastings i.e. Mehals whose revenue had to be paid into the Khalsa or Exchequer at Calcutta.
6. The Decennial Settlement took place in 1790 and as is well-known elaborate rules and regulations had been passed for concluding that settlement. The zimindar was allowed 10 per cent i.e. not 10 per cent of the assets, but only 10 per cent of the Government share, which left him one-eleventh in all. Before, however, this 10 per cent was calculated, all the non-revenue-paying lands the profits of which were enjoyed by the zemindars were resumed and added to the rest of the estate, subject to a reservation made in favour of lands dedicated solely to religious purposes. It was declare by the East India Company by the Lakheraj Ragulations of 1st December 1790 that all grants of rent free lands made previous to 12th August 1765 should be cleared valid, provided the grantee actually and bonafide had obtained possession of the lands so granted previous to that date and the lands should not have been subsequently resumed by the officers or under orders of Government : see Colebrooke's Digest of Regulations, Supplement Vol. pp. 292. By Section 4 of the said regulations it was declared that the grantees or present possessors, until dispossessed by a decree of the Ddwani Adawlat. were to by considered as the proprietors of such rent-free lands with the same right of proparcy therein as was possessed by the other landholders paying revenue to Government. But Section 33, Decennial Settlement Regulations (it may be noted in passing that they were all included under Lord Cornwallis's orders in a Code of Regulations dated 23rd November 1791) it was provided that the assessment of revenue was to be fixed exclusive and independent of all existing Lakheraj lands and by Section 43 thereof all zemindars assessed by Government were required to distribute the total assesamsnt on the villages, comprised in their zemindaris and to deliver a record of such distribution each year successively, specifying the name of each village the boundaries thereof, the estimated quantity of the land in each, distinguished as malguzari and lakheraj, together with an abstract thereof : See Colebrooke's Supplement, pp. 303 and 317.
7. I have already mentioned that the Decennial Settlement; of the Esafpur estate (the language used is Pargana Esafpur and others) was concluded with Sree Kanta Roy. It appears tint ha executed a dowl kabuliyat and Kistbundi on 23rd February 1791 : See Ex. 3. By the expression dowl kabuliyat and kistbundi is meant an engagement setting forth particulars of this arrangements made for the payment of revenue in respect of specified lands by fixed instalments and it appears that in accordance with the regulations referred to above, the lands forming the 'Britti' of Sree Sree Shyam Roy Thakur were taken into consideration in assessing the revenue payable by Sree Kanta Roy. The word 'Britti' is of Sauskrit origin and it means literally 'means of subsistence.' Wilson in his Glossary defines it as a grant of land or other means of support to any one. Some of the early editors of the regulations take it as synonymous with debuttar or dedicated lands. There is at any rate no doubt whatsoever that certain nishkar or non-revenue-paying Jands were excluded from assessment when the said kabuliyat was taken at the time of the Decennial Settlement; there is certainly a good deal of force in the plaintiffs' contention that these lands which were so excluded wore the debuttar lands of Sree Sree Shyam Roy Thakur. There was certainly a remission of assessment of land belonging to Sree Sree Shyam Roy Thakur. There is no dispute that the plaintiffs are able to trace their descent from Sree Kanta Roy but as yet there is no mention in the dowl kabuliyat where these lands were situate. The next document relied upon by the plaintiffs is Ex. 16 and in it the lands in mouzah Dearah arc mentioned as being the debuttar lands of Sree Sree Sham Roy Thakur and the area thereof is stated to be 500 bighas Ex. 16 is a statement and the heading thereof is as follows:
Properties consisting of minor lands forming the Britti land of the Deities Sree Sree Shyam Roy Thakur and Sreo Sree Shib Thakur and others, in Pargana Esafpur and others, District Jessore, and filed in the Collectorates on 13th Bhadro 1202 B.S.
8. Now, the defendant has argued that there is nothing to show how this statement came to be filed in the Collectorate. The answer to that is to be found in Section 43 of the amended Code of Regulations dated 23rd November 1791 set out above and I will not repeat what that section laid down. There is therefore nothing surprising in the fact that Ex. 16 was filed in the Collectorate on behalf of the proprietors of the Esafpur Estate and I see no reason whatsoever to doubt the. genuineness of the document being Ex, 16. This document is dated 29th August 1795 and we find in the next document Ex. 1, mention of mouzah Dearah with its 500 bighas in taidad No. 13788 for the year 1202 B.S. 1795-96. A taidad, according to Wilson, is an extract from a public register or other document of authority in confirmation of a claim. As will be seen later, registers were being kept in the Collectorate by 1795 : see Reg. 48 of 1793 and all persons holding rent-fee lands were required to register in the Collectorate within one year : see Section 24 of Reg. 19 of 1793. It would seem that in respect of lakheraj lands held at the time of the Decennial Settlement, a register was kept in the Collectorate of Jessore and Ex. 1 is a copy of the relative entry therein. A certain amount of unreal argument was based on the fact that the original taidad book was not produced from the Collectorate. The defendant could have easily shown that the original did not contain any such entry. The real importance of Ex. 1 is in the continued assertion of lakheraj title by the plaintiff's ancestors. The next document on which the plaintiffs rely is the decree of the Special Deputy Collector of Jessore in case No. 710. This is by far and away the most important document in favour of the plaintiffs and as such it has not unnaturally been subjected by Mr. Bose on behalf of the defendant to much vigorous criticism. In view of the conclusion to which I have come so far as this document is concerned and the effect, thereof I will take leave to dwell for a few moments on the circumstances under which that decree came to be made. As is well known a greater part of the present District of Jessore was included in the territory now known as the Sunderhuns and there are indications on the record that some of the lands in suit at any ratio, if not the whole, were within the Sunderbuns area. Now the Snnderbuns were for the first time declared to be the property of the State by Section 13 of Regulation 3 of 1828. The Government determined to make grants of the Snnderbuns tract and to bake measures for its clearance. For this purpose a survey was decided upon and carried out. Zamindars who had encroached on the forest area or who held tower lands began to raise objections and resumption proceedings wore started in consequence. It appeared that brit or the debuttar estate of Sree Sree Shyam Roy Thakur had appropriated 7000 bighas of forest in the Sunderbuns : see Pargiter's p. 27 and suspicion that there had been encroachments also arose because of fact stated on behalf of the ancestors of she plaintiffs, that in respect of 12350 bighas of Sree Sree Shyam Roy Thakur's land a sum of Rs. 1170 only had been remitted at the time of the Decennial Settlement.
9. According therefore to the Commissioner of Sunderbans there were usurpations and the Government decided to investigate into the whole matter. These matters appear from the recitals in the decree of 23rd May 1842. A glance of the map will show that the Sunderbuns area rotated to lands in three districts at least namely, 24 Parganas, Jessore, Nadia and in case No. 10 before the Special Deputy Collector all the usurpers, if I may so phrase it, were made parties. The ancestor of the plaintiffs was there; so also some of the ancestors of the defendant. The plaintiff's ancestor was required to produce all the sanads he was relying upon for the purpose of showing what were the lakheraj lands dedicated to Sree Sree Shyam Roy Thakur. Regn. 3 of 1828 laid down what wag to be done and the procedure appears be have been to depute in the first instance amins to make enquiries and measurements and upon these materials she Special Deputy Collector was to base his report. It appears that in accordance with this procedure amin Sree Nath Banerji was deputed to make enquiries; ho submitted a report see Ex. 14 on 2nd July 1840 the resumption case itself with reference to the said lands having been started on 28th January 1836. Sree Nath Banerji reported:
Thereafter I reached Dearah : there being 500 bighas of land in that place as in the taided and the same not being found on previous enquiry I reported it to you Honour and commenced survey of the whole mouzah in which 4,000 bighas of lands by guess surveyed thereafter the previous otbandi jotodars of the said britti lauds Gole Mamud Sardar and Sadi Gazi and others came and identified the britti land and on their identification 502 bighas and 15 cottas of land was surveyed. The said land is lying patit. : see Ex. 14
10. This report along with other matters engaged the attention of the Special Deputy Collector and on 23rd may 1842 he came to the conclusion that he had proved before him that 8823 bighas were the britti lands of Sree Sree Shyam Roy Thakur and to be valid mishkar. He had before him among other materials a certified copy of the purwana of the Commissioner of Sunderbuns dated 5th March 1864 and he was satisfied that the profits arising out of the said lands i.e. 8823 bighas were being spent on the deb Sheba of the said Thakur. He accordingly released the said 8823 bighas from the claim of Government. No doubt had been mentioned in the taidad as being the 'britti' lands; but on enquiry the Special Deputy Collector found that the entire area amounted to 16,580 bighas. Deducting therefore from this last mentioned area the said 8823 bighas there remained an area of 7757 bighas which wore not britti lands and orders were pissed to the effect that this area was to be resumed see : Ex. 4 and 2. A great deal of argument was addressed to us on the question of the identity of the '500 bighas in mouzah Doarah; but there can be no doubt whatsoever that this area of 500 bighas was included in the said 8823 bighas : see the fuller decree of 23rd May 1842 in the separate paper-book. Now, the ancestors of the defendant wore parties to the suit or case in which the said decree was made and it does not appear that (although they made various claims) they over made any claim to the lands in mouzah Dearah with which we are concerned. Further Umesh Chandra Pal Chaudhuri who is the ancestor in the direct line of the present defendant appealed against the decree of the Special Deputy Collector being Miscellaneous Appeal No. 172 of 1845. There is, therefore, not a title of evidence to show that the ancestor of the defendant was not aware of the effect of the decree of the Special Deputy Collector. I am satisfied that he must have been aware at all material times as to what was going on and that the decree in question was as much binding on him as on the plaintiffs ancestor. Mr. Bose devoted much time for the purpose of inducing us to hold that under Regn. 3 of 1828 it was not within the province of the Special Deputy Collector to pronounce any opinion on the validity or otherwise of the lakheraj title set up by the ancestors of the plaintiffs. It is sufficient to observe that so far as the lands in suit are concerned, it roust be taken that under the law in force at the time of the Decennial Settlement and to which I have already referred a proper enquiry was made and the validity of the lakheraj in question was conclusively established before the revenue authorities as otherwise no remission of revenue was admissible or would have been made. There is indeed no substance in Mr. Bose's contention, as the very words of Section 4, Regn. 3 of 1828 show that it was competent to the Collector or other Revenue Officer to institute the enquiries specified in Regn. 2 of 1819 and Regn. 9 of 1825, and to follow the procedure laid therein and that he was to record in a robokari his judgment as to the liability of the lands to assessment or otherwise in manner directed by Section 20 of the first mentioned regulation i.e., Regn. 2 of 1819, and that such decision should have the force and effect of a decree. The early regulations relevant on this question namely the Regulation of 1790 referred to above Regn. 19 of 1793 and Regn. 37 of 1793 refer in specific terms to the question lands held free of assessment under valid and legal title and it is idle to contend that the Special Deputy Col lector sitting in the revenue Court ii 1842 and proceeding with his enquire under Regn. 3 of 1828 had no authorities to pronounce on the validity or other wise of a lakheraj title sot up before him.
11. We have now arrived at 1842 and it does not appear that the decree of the Special Deputy Collector was subsequently upset or modified in any way. The next document is Ex. 6 being art annexure from the Mahalwari Register, Pargana Saydpur, of measurements made by the revenue surveyor with the help of a compass in the year 1857. The word 'mehal' which is used in the regulations : see Clause 2. Section 2, Regn, 42 of 1803 as the equivalent of the English word 'estate' signifies, not the property of one person, but the property held under one title, whether by one person or by many. The word 'mahalwari' is used in contradistinction to mausawari which defines every separate mouzah or village in the revenue records. Before I deal with the entries in this documents, perhaps a few words on the various registers kept in the Collectorate in or about this period may not be out of place. Now, Sections 2 to 5, Regn. 48 of 1793, prescribed the preparation of a general register of estates to be arranged in alphabetical order, according to the English alphabet; and Section 16 of the same regulation, directed that a Register of intermediate mutations should be kept in the manner therein detailed. In passing it may be noted that this general register. A subsequently became a mere list of revenue paying estates. The intention was, that, every fifth year, the general register should be re-written, and all the mutations entered intermediately in the mutation register, embodied in it.
12. It was found, however, that the specification in the general register of the villages necessitated voluminous details and was productive of great delay in the preparation of the registers and it was thereupon enacted by Section 2, Regn. 8 of 1800 that a 'Pargana Register' showing all estates and all villages in each estate, arranged by parganas, should be prepared and that corrections b should be made therein every fifth year. It was also provided by Section 11 of the said regulation that the general registers should not, any longer, contain 3 specification of villages. The pargana 7 register was divided into two parts. Bart 1 (Register B) of lands assessed to s the public revenue and Bart 2 (Register C) of lands exempt from the public assessment. The maintenance of correct registers was found to be an impossibility and it was than thought that the estate and village and Mahal Registers prepared by the Superintendents of Survey after 1350 would serve the purpose and be complete records of the state of the property as ascertained by the survey. This was the state of things during the thak operations in Bengal, in passing it may be noted that the mahals entitled to direct entry on the thak bust maps were confirmed lakheraj tenures' i.e., tenures confirmed on trial and tenures not subjected to trial, the titles being held good (sea the rules of the Board of Revenue, 8th October 1850, App. 10 of Young's Revenue Hand-book). Now the entries in the Mehalwari Register refer to the decree of the Special Deputy Collector of 1842 in case No. 710 and to the fact that the lands in question in Mouza Dearah had been released as lakheraj and that the lands were than about 120 acres.
13. Surveys wore going on in Bengal from 1850 onwards and the thak maps had to be and were being brought up to date. With this view as the lands of Mouzi Deirah Pargana Emadpur relating to Khas or Resumption Case No. 710 of the District of Jessore had not been plotted on the thak map, Amin, Jogeswar Ghose was deputed in 1861 to measure the lands on the locale. He succeeded in identifying the lands and his report is Ex. 8-A. Finally, the Survey Deputy Collector directed by his order dated 6th April 1861 that the lands so measured and identified by Jogeswar Ghose should be plotted on the thak map (see Ex. 8). This was accordingly done and the Survey Deputy Collector's order was subsequently confirmed by the Collector on 19th July 1861 (see also in this connexion Ex. 5-B). It is said that Amadpur and Bagmara were two different Parganas and there was no reason why the lands in suit should have been plotted on the thak map in Pargana Bagmara. The answer to this is that both were neighbouring parganas in the Sunderbuns. I can see nothing irregular or suspicious in what took place in 1861. The Amin Jogeswar Ghose identified the lands in the presence of the Karpardaz of the Estate of Umesh Chandra Pal Chandhuri. It is said that Umesh was dead at the time. I entertain no doubt whatsoever that Umesh's Estate was represented in the proceedings on the site held by Jogeswar Ghose. Although Umesh was dead, any one who knows the conditions which prevailed and still prevail in the moffusil would have no hesitation in agreeing that the Karpardaz would still be known as a Karpardaz of Umesh, meaning thereby the Estate of Umesh. The proceedings were all in connexion with a miscellaneous case being Miscellaneous Case No. 162 of 1861 and it is against all sense, and reason to suggest at this distance of time that the plotting of the plaintiffs lands in the thak map had been secured by irregular means. The proceedings would appear to have been forwarded to the Collector of Nadia within which district the bulk of the defendant's properties were and are Finally we have the fact that the plaintiffs title to the lands in question was registered under the provisions of the Land Registration Act of 1876. A glance at Ex. 21 will show at once that the successors-in-interest of the various parties before the Deputy Collector in 1842 were before the Land Registration Officer in 1904-05 when registration of the plaintiff's title was ordered to be made. The scheme of the Land Registration Act shows that nobody's name can get on to the Register until and unless due notice to all parties, affected is given and is found to be served.
14. I must take it that in this case the usual procedure was followed and everything was rightly and properly done. As against this mass of evidence, there is really nothing of any substance on the record on behalf of the defendant. There is, therefore, in my view, no doubt whatsoever that the plaintiffs are lawfully entitled to the lands in question. I have come to this conclusion after an anxious and careful consideration of everything that has been urged on behalf of the defendant by Mr. Bose and I have throughout not been unmindful of the specific points raised by the defendant in his written statement. In my opinion the plaintiffs have produced a mass of materials from which the conclusion in law and in fact follows that they have undoubted title to the lands in suit. This disposes of the main question which has been argued before us.
15. Now the lands were full of jungle and incapable of occupation until quite recently. It follows therefore that in the case of such lands possession must follow title in the absence of possession by anybody other than the rightful owner. Mr. Bose has referred us to certain portions of the evidence for the purpose of showing that the defendant his bean in possession for more than 12 years. It is unnecessary to discuss that evidence in detail. I have examined the evidence independently of what was stated by the Subordinate Judge and I am unable to say that possession on the part of the defendant for more than 12 years has at all bean substantiated by the defendant. Suffice it to say that I am in entire agreement with what has been said by the learned Subordinate Judge on this point. In my view the plaintiffs have never lost possession and the defendant has never gained title by possession for the requisite period.
16. The defendant's appeal, therefore, fails and must be dismissed with costs. As regards the area in respect of which the plaintiffs are entitled to recover khas possession, the decree made by the learned Subordinate Judge needs correction. It is quite true that the area alleged to be comprised in Mouza Dearah and to be lakheraj consisted of 500 bighas but there is no doubt whatsoever that as early as 1857 the area in question had shrunk to about 120 acres or 365 bighas 19 cattas 12 chittaks. The result, therefore, is that the defendant's appeal fails, the plaintiffs begin declared to be entitled to recover khas possession and to be entitled to mesne profits in respect of an area of 365 highs 19 cottas 12 chittaks in mouzah Dearah Pargana Emadpnr in the district of Khulna.
17. I agree.