1. This appeal arises cat of an action brought by the plaintiffs against the Secretary of State for India in Council for a declaration that certain lands on the banks of the rivers Baleswar and Sapleza in the District of Backergunge in respect of which Government revenue has been assessed under the provisions of Act IX of 1847, are within the ambit of Mahal Dabnathpore, which is held by the plaintiffs under the Government on certain terms and conditions mentioned in Exhibits 3 and H, dated the 19th November 1856, and the 9th April 1870, respectively, and for a declaration chat the proceeding s undertaken by the defendant for the assessment of the said revenue are illegal, and for various other reliefs mentioned in the plaint. The defendant by his written statement alleged that the suit was barred by limitation and that the lands in question which had not been let out by Government had been formed out of the beds of the two rivers mentioned above, described as large tidal public nagvigable rivers, and that the same had been duly and properly assessed with revenue under the provisions of Act IX of 1847.
2. The facts shortly stated, are as follows:
Certain lands in the Sunderbans were let not by Government on the 1st September 1839 rent-free in ijara to one Debnath Roy, the Benamidar of the predecessor-in-interest of the plaintiffs, for a period of 20 years. In September 1853 Government promulgated certain rules regarding the grant of waste lands in the Sunderbans and, in accordance with the orders of the Board of Revenue, the ijardar Debnath Roy executed a Kabuliyat in respect of a grant by Government of an approximate area of 34,000 Bighas of waste land in the Sunderbans within certain defined boundaries. This Kabuliyat, which is dated the 19th November 1855 and which provided for a progressive rental, is Exhibit 3. Of the boundaries mentioned above, it is only necessary to refer to two of them, namely, on the south by the Sapleza river and on the west by the Baleswar river. It appears that between the years 1858 and 1867 there were certain proceedings before the survey authorities and in the Civil Courts which are referred to in Exhibits F and G, and at last on the 9th April 1870, a Doul Kabuliyat was executed by one Prosanno Chunder Roy Choudhury in respect of 33,441 Bighas 17 Cottas and 7 Chittaks of Jungle lands, being the lands referred to above, on the bank of the river Bamni otherwise known as Sapleza. This Doul Kabuliyat (Exhibit H) which did not in any way interfere with the terms and conditions mentioned in Exhibit '6, expressly stated that there would not be allowed any abatement of the jama in the event' of dilution and that Government would be entitled to realise arrears of the jama by public auction of the lands referred to above and of such moveable and immoveable properties as might be in the possession of the grantees. In 1900 the Government issued certain notifications under Section 3 of Act IX of 1847 directing a survey to be made of the lands on the banks of the rivers and the sea-share in the District of Bankergunge, and thereafter new maps were prepared in 1904-05 of the lands on the banks of the rivers Sapleza and Baleswar. The map of 1870, commonly known as Ellison's map, referred to in Exhibits F and G, was compared with the new maps and it is alleged that as a result of the comparison it was discovered that certain lands had been added to the lands covered by Exhibits 3 and H. Thereafter, in 1914, proceedings were taken under Section 6 of Act IX of 1347 for the assessment of these lands with revenue. The proceedings under Section 6 of Act IX of 1847 were eventually confirmed by the Board of Revenue on the 20th December 19l5 with the result that the plaintiffs, were called upon to execute Kabuliats in respect of the lands which, it was alleged, had been added to their original lands. The plaintiffs by their present suit challenge the legality of the proceedings under Section 6 of Act IX of 1817. The learned Subordinate Judge has found that the proceedings adopted in this case were not in accordance with law and that it has not been shown that the lands assessed were not included in Exhibits 3 and H and has accordingly made the declarations asked for.
2. On appeal, it has been contended before us on behalf of the Secretary of state that (i) the suit is barred by limitation, having regard to the provisions of Section 24 of Regulation II of 1819; (ii) that the proceedings adopted for the purpose of assessing the lands discovered on comparison of the map of 190405 with Ellison's map of 1870 were strictly in accordance with the provisions of Regulation II of 1819, Regulation III of 1828 and Act IX of 1847; (iii) that it had never been contended up to the date of this suit that the said lands were within the lands referred to in Exhibits 3 and H; (iv) that the causal was on the plaintiff to prove that the revenue authorities were wrong in the proceedings referred to above, and (v) that this suit being one under0, Sub-section 3, of Regulation III of 1828, must be and ought to have been dealt with as an appeal against the decision of the Board of Revenue, dated the 20th December 1915.
3. We are not impressed with the point about the suit being barred by limitation. Assuming for the moment that Regulation II of 1819 has any application to the facts of the present case, the matter stands thus. The decision of the Board of Revenue was, as we have said, pronounced on the 20th December 1915. Under Section 24 of Regulation II of 1819, the dissatisfied party is 'entitled to sue any time within one year from the date of his being informed of the Board's decision.' Now it does not appear when the plaintiffs were informed of the Board's decision, but in the plaint it in stated (see paragraph 6) that the order of the Board of Revenue was communicated to the plaintiffs by a notice on the 21st January 1916, It is noticeable that this definite allegation of fact is not denied in the written statement and it may, therefore, be taken to be admitted by the defendant. If that is so, then the suit was clearly within time, the plaint having been put on the file on the 20th January 1917.
4. Before dealing specifically with the other points urged on behalf of the appellant, it may be useful to indicate once more the nature of the present suit. The contention on behalf of the plaintiffs is that the entire proceedings for the assessment of lands, with revenue in the present case are a nullity. This resolves itself into the Question: Is Act IX of 1847 applicable at all in the case of a lease of lands in the Sunderbans on the terms and conditions set out in Exhibits 3 and H, or is not the relation between the grantor and the grantee regulated by the terms of the contract between the parties, subject to the provisions of Regulation XI of 1825?
5. The Government as 'owner' of the Sunderbans (see Section 13 of Regulation III of 1828) granted a lease of certain lands for a period of 99 years from 1839 with a covenant for perpetual renewal to Debnath Roy on a progressive rental, It is clear from Clauses 4 and 6 of the Eabuliat of 1856 that there is no distinction drawn between 'rent' and 'revenue' in the document, and that the relation created by it between the parties is that of a lessor and a lessee. The grantee in this instance is not allowed (see Exhibit H) to claim an abatement of rent on the ground of dilution and he runs the risk, in the event of accrual of arrears of the jama reserved by the document, of not only having the lease hold interest sold by public auction but his other properties moveable and immovable sold as well. In these circumstances it becomes material to enquire whether there is any room for the application of Act IX of 1847. Under Act IX of 1847 it must be shown that land has been added to any estate paying revenue directly to Government. It is true that Mahal Debnathpore is registered in the Backergunge Coelenterate as bearing Towzi No. 4908, but we must look into the circumstances of the origin of the grant. We are of opinion, having regard to the position of Government as owner of the Sunderbans, and to the terms and conditions set forth in the governing documented, Exhibits 3 and H, that the grantee in this case cannot be Said to be the holder of an 'estate paying revenue directly to Government. If that is so, then Section 6 of Act IX of 1847 cannot be invoked for assessing lands alleged to be additions with revenue payable to Government. It then becomes necessary to enquire whether the proceeding s, purported to have been taken under Act IX of 1847, were themselves in order. The record before us shows that there were abundant materials before the learned Subordinate Judge, for doming to the conclusion that, in some respects at least, the action of the Diara Deputy Collector was not above reproach. Coming now to the main question involved in this appeal, we think that the finding of the learned Subordinate Judge that it has not been shown that the lands -assessed were not included within the ambit of the Mabal Debnathpore cannot be assailed. It is admitted that no actual survey of the lands in dispute was ever undertaken and it is found that no common points outside fluvial action on either side of the rivers in question were com-pared. It is said that this is a question of the onus of proof and that the onus lay on the plaintiffs in this case. We are of opinion that when the matter came before the Civil Court in circumstances such as are disclosed herein, the onus lay on the grantor, i.e., the Secretary of State for India in Council, to show that lands outside those mentioned in Exhibits 3 and H had come into existence and had been added to the original lands. The question of onus is, however, immaterial now. The learned Subordinate Judge had before him the whole of the record which was before the revenue authorities and, on a full consideration of the entire record, he has come to the conclusion that there was nothing in it which showed that lands outside the ambit of Mahal Debnathpore had come into existence and had been added to the Mahal. We nave examined the record which was before the revenue authorities for ourselves and we agree with the finding of the learned Subordinate Judge. It is next said that it had been admitted by the plaintiffs in the course of the proceeding s under Act IX of 1847 before the revenue authorities that there had been accretions outside the lands mentioned in Exhibits 3 and H. The evidence is not very clear on this point, but such as it is does not, in our opinion, prove affirmatively that there was any such admission on the part of the plaintiffs before the revenue authorities. The point was clearly taken by the plaintiffs before the Diara Deputy Collector and it does not appear that it was abandoned at any time. It is not shown that the rivers Baleswar and Sapleza at the time of the grant in this case were public navigable rivers. In the absence of any evidence to that effect, having regard to the boundaries of the land demised in this case, it would follow (see Maharaja of Burdwan v. Secretary of State 46 Ind. Cas. 305 : 22 C.W.N. 872 : 46 C. 390 that the boundaries on the south and the west lay on, and extended to the middle of, the two rivers mentioned above. It is not shown whether the alleged additional lands were within the limits just indicated. On all these considerations, we are unable to dissent from the view taken by the learned Sub Judge. If there are additional lands outside the limits just referred to, it will he open to the defendant to take proceeding s under Regulation XI of 1825.
6. It is lastly urged that the matter ought to have been dealt with as if it were a regular appeal from the decision of the Board of Revenue. We are unable to assent to this view. The suit was one for a declaration, that the proceeding s under Act IX of 1847 were a' nullity. That being so, it is difficult to say that it should have been treated as a mere appeal from the decision of the Board of Revenue.
7. In the result the present appeal fails and must be dismissed with costs.