Francis W. Maclean, K.C.I.E., C.J.
1. This appeal arises out of a suit brought against the Secretary of State for India in Council by the plaintiff, appellant, to establish his title to certain lands, and to obtain certain declarations, the most important of which are that the 3aid lands are included in plaintiff's taluk Shermast Khan, and that the Government has no right to resume any lands of the said taluk, or to assess any rent on the same, otherwise than under the terms of a certain kabuliat of the 9th of November 1836.
2. The material allegations upon which the plaintiff bases his right to the reliefs claimed are, that taluk Shermast Khan is the purchased ancestral property of the plaintiff; that the taluk has been in existence from before the Decennial Settlement; and in 1162 Maghi, that is 1800, a jummabundi was made by which 41 odd drones of land of the said taluk were assessed at Rs. 15-14-16 gandas per drone and a jumma of 659-6-2 pies was fixed: that in 1197 Maghi, that is 1835, the taluk was measured again and found to contain 79 odd drones of hasila or culturable lands, and 137 odd drones of waste land, and Government on the 9th of November 1836 took from the taludar a kabuliat fixing the jumma at Rs. 1,267-4-2 pies (in sicca or Company's coin), which was made up of the old jumma of Rs. 659-6-2 sicca and an additional jumma of Rs. 607-14-0 in Company's coin at the rate of Rs. 16 on the excess of 37 odd drones in the culturable area; that the kabuliat contains a stipulation that any additional land that might be found, on future measurement, to have been brought under cultivation was to be assessed at the rate of Rs. 16 a drone; that out of the jumma fixed by the kaubuliat, a certain deduction on account of bat khila or waste land being made, the sum of Rs. 1,101-8-6 pies continued to be the jumma payable and was actually paid; that at the recent survey, the mehal was improperly recorded as the khas property of Government, and the plaintiff was, by a notice, dated the 26th July 1892, and by a proceeding, dated the 6th August 1892, required to take a fresh settlement, on the ground of the former settlement having expired; and that these alleged illegal proceedings have endangered the plaintiff's permanent right to taluk Shermast Khan.
3. The defence, so far as it is necessary to be considered for the purposes of this appeal, was, in substance a denial of the permanent talukdari right claimed by the plaintiff.
4. The first Court found for the defendant and dismissed the suit.
5. The plaintiff preferred an appeal to this Court against the decree of the first Court; that appeal was heard by a Division Bench, and as one member of that Bench, Mr. Justice Rampini, was of opinion that the decree appealed against should be affirmed, while the other, Mr. Justice Henderson, was of a contrary opinion, the decree was consequently affirmed under section575 of the Code of Civil Procedure. Against the judgment of Mr. Justice Rampini, affirming the judgment of the first Court, the present appeal has been preferred by the plaintiff under Section 15 of the Letters Patent.
6. The points urged in this appeal on behalf of the plaintiff are shortly these: First, that the settlement of 1800 was in confirmation of certain existing talukdari rights, and had the effect of conferring on the plaintiff's predecessor in title a permanent right in the taluk Shermast Khan and in the lands in dispute, as appertaining to that taluk; second, that the kabuliat of the 9th of November 1836 had the same effect; and third that even if the kabuliat alone could not have such effect, it was subsequently ratified by the Government through its officers, and even if not ratified, that the Government have acquiesced in the terms of the kabuliat, and that it is not now open to the Government to resile from those terms. We ought to state that it is no part of the plaintiff's case that the lands in suit, which are claimed as taluk Shermast Khan and as settled at the permanent settlement, formed part of the estate of Joynugger.
7. Upon the first point it has been urged for the appellant that, by the policy of the British Government (as indicated in the earlier Regulations, such as the preambles to Regulations II and IX of 1793) which was in accordance with the policy of the Mahomedan Government, the property in the suit was declared to be vested in the landholder, and the claim of the Government declared to be limited to a share of the profit in the shape of revenue; that in pursuance of that policy the Government approved the recommendations made by the Board of Revenue for the settlement of the wastelands of Chittagong, which had not been included in any zemindari or turuf, and which were called noabad or newly reclaimed lands; that the lands comprising taluk Shermast Khan were accordingly settled with the holder thereof; and that regard being had to these circumstances and to the terms of the Board's recommendation, the settlement of the taluk should be taken to be a perpetual settlement in recognition of pre-existing rights in the talukdar.
8. On the other hand, it has been contended for the Government that though, in regard to land that is settled with or occupied by any one, the right of the Government may be limited to the revenue, yet unsettled and unoccupied waste land belongs to the Government; that there is nothing to show that taluk Shermast Khan existed before the Decennial Settlement, and that the settlement of taluk Shermast Khan in 1800 was not under the directions of the Board a perpetual settlement, but came under that head of the directions which recommended temporary settlement.
9. We are dealing with a state of circumstances and a condition of affairs which are involved in some obscurity, owing to a century having expired since the date of the transactions in question, and there is practically no direct evidence on the matter, either oral or documentary. It must, however, be borne in mind at the outset, that, if the plaintiff sets up as against the Government a permanent or perpetual settlement, it is incumbent upon him to make out that case; and upon the question of evidence we may perhaps observe that no question has been raised by either party as to the admissibility of the various despatches and correspondence and other documents which have been referred to by both sides and in some sense relied upon by both sides during the course of the argument. Both parties have treated them as admissible and the case has been argued upon that footing.
10. After carefully considering the arguments on both sides, we are of opinion that unsettled and unoccupied waste land, not being the property of any private owner, must be held to belong to the State. This view is not opposed to the policy of the British Government in India, and is in accordance with such policy as appears from the express language of the preamble of Regulation III of 1828. But it is unnecessary to pursue this discussion, as the holder of taluk Shermast Khan in the kabuliat executed by him on the 9th of November 1836, upon which the plaintiff's ease is so strongly based, admits that the taluk is situated 'in the noabad mehal, which is the zemindari of the Bast India Company's Government.'
11. It has, in our judgment, been established that taluk Shermast Khan is not shown to have been in existence from before the Decennial Settlement. The earliest settlement of taluk Shermast Khan, that is mentioned or referred to, is that of 1800 by Mr. Kerr, Collector of Chittagong. We have not before us the papers of 1800, nor was any application made by the plaintiff for the production of these papers, until after he had closed his case, and it may well be that he was not very anxious to have them produced lest they might prejudice his case. It must be remembered that the plaintiff claims a permanent talukdari right, not merely in the 41 odd drones settled as taluk Shermast Khan, at a rent of Rs. 659 odd in 1800, but in an area of 578 odd drones. Be that, however, as it may, we should have felt inclined to give effect to the argument that, from the proved existence of taluk Shermast Khan in 1800, a reasonable presumption arose in favour of its existence before that date, were it not for the fact that, as appears from the settlement proceedings of Mr. Harvey, Collector of Chittagong, dated the 21st of November 1836, which is the earliest document showing the existence of the taluk in 1262 Maghi or 1800 A. De, the taluk had no existence in 1150 Maghi or 1788 A.D., there being no mention of it, though there is mention of certain other lands specified as lakhiraj in the name of Shermast Khan in the survey of 1788, which was the next preceding survey and of which the particulars are given in the proceedings. And it may be noticed that in the survey proceedings of 1162 Maghi (A.D. 1800), a distinction is drawn between noabad lands such as those now in suit, and lakhiraj lands. The interval between 1788 and 1800 was not long, and it is not suggested that there was any survey or settlement between these two dates. It cannot, therefore, be reasonably inferred that taluk Shermast Khan was formed before 1800.
12. Nor can the directions of the Board of Revenue under which Mr. Kerr acted, on settling taluks in 1800, warrant our holding that the settlement of taluk Shermast Khan was a settlement in perpetuity. Those directions which have been copiously referred to on both sides from the abstract given of them in the report of the case of Vakeel of Government v. Rajesree Debea (2 Sel. Rep., S.D.A., New Ed., 199) will be found at pp. 349 and 350 of the Paper Book.
13. These directions, as we gather from the memorandum of Mr. Walters, dated the 5th of November 1837 (Ex. D.) para. 8 and from Mr. Cotton's note, para. 6 (p. 222 of the Paper Book) which were referred to on both sides, were issued in 1796 or 1797; so that the latest measurement before they were issued was the measurement of 1788, and the only lands that could come under the first description referred to in the above extract, would be lands measured in 1788, all lands not covered by the measurement of that year being included in the second description. Now the lands of taluk Shermast Khan were not included in that measurement, for the measurement papers are silent as to them, and so they did not fall under the first description, and the direction for the grant of a perpetual pottah could not apply to them. It was argued for the appellant that the land of taluk Shermast Khan should be taken as coming under the first description as having been permanently settled, and, as being land which 'had been reduced to cultivation since the last measurement,' that is, the measurement of 1788, and that it could not come under the second description because it was settled, not in small portions but as in one large area, and the rent was made payable not after three years but at once, which could not have been the case if the land had been of the second description. The first branch of this argument is, in our opinion, unsound. The only lands that could come under the first description, as being lands which had been reduced to cultivation since the last measurement, are those which had already been included in the measurement of some taluk, but which had not been assessed owing to their not having been brought under cultivation, and the land settled as taluk Shermast Khan in 1800 was not of this class. As to the second branch of the argument, if the fact of the land being a large area of 41 drones, and being assessed with the rent of Rs. 659 odd payable at once, militates somewhat against the view of its being temporarily settled as land of the second description, the fact of its being re-measured and re-assessed in 1176 Maghi, that is in 1814, as a smaller area of 29 drones for a smaller rent of. Rs. 460 odd (as appears from the settlement proceeding of 1836, Ex. I, p. 15), and the fact again of the rent being changed from Rs. 1,311-3-5 to Rs. 1,101-8-6 (see Ex. I, para. 16 and the plaint, para. 4) and of the rate being changed from Rs. 15-14-16 sicca to Rs. 16 Company's coin (see kabuliat Ex. III and Ex. I, para. 13), are wholly inconsistent with the theory of a perpetual settlement of the taluk in 1800.
14. The first contention of the appellant must, therefore, fail; in other words the plaintiff has failed to establish a perpetual settlement in 1800.
15. The second contention of the appellant, namely, that the kabuliat of the 9th of November 1836 conferred on the holder of taluk Shermast Khan a permanent talukdari right in respect of certain lands, would be well founded, if the kabuliat amounted to a binding contract between the talukdar and the Government. The kabuliat doubtless provides that the talukdar will hold the land of the taluk, generation after generation, on payment of the stipulated rent, and of such additional rent, at the fixed rate, as may be payable on account of any additional land that may be subsequently found by measurement to have been brought under cultivation. But how does this kabuliat amount to a contract binding on the Government? It was no doubt executed by the holder of taluk Shermast Khan for the time being, and it was executed in the office of the Collector, Mr. Harvey, as the note at the top of the document shows; but there was no execution or acceptance by the Government of the terms of this kabuliat or by any duly authorized officer of the Government. It was an offer on the part of the owner for the time being of the taluk in question, and nothing more. No doubt Mr. Harvey recommended the grant of permanent pottahs to all noabad talakdars (see Mr. Walters' Memorandum, Exhibit D, p. 45), but it is amply clear that this view not only did not find favour with the Government, but was distinctly repudiated by it. It is equally clear Mr. Harvey had no authority to bind the Government in the matter. The settlement by Mr. Harvey was made under Regulation VII of 1822, which had been extended to the whole of the Bengal Presidency by Regulation IX of 1825; and both by general law (see Regulation III of 1822, Section 5, Clause 1 and Regulation VII of 1822 Section 7, Clause 1), and by the special instructions issued for the guidance of Settlement Officers (see Exhibit H, para. 1) no settlement could be binding on the Government unless confirmed by the Governor-General in Council. The proceedings of Mr. Harvey were in the ordinary course submitted to Government, along with a Memorandum by Mr. Walters (see Exhibit I and Exhibit D), but the Government by its letter, dated the 19th April 1838, Exhibit C, refused to sanction any perpetual settlement, and assented to the granting of pottahs for 30 years only. The kabuliat cannot be regarded as conferring any permanent rights on the talukdar, it does not represent any contract between the talukdar and the Government.
16. Then it is contended, and this contention was accepted as well founded by Mr. Justice Henderson, that though the kabuliat standing alone, might not be sufficient to confer any permanent rights on the talukdar, yet, by reason of ratification or acquiescence on the part of the Government, as evidenced by the acts and conduct of its officers, the talukdar must beheld to have acquired the permanent rights referred to in the kabuliat. Ratification is one thing, acquiescence is another, and though they have been much intermingled in the argument, it will be preferable to deal with them separately.
17. What then are the acts and conduct of the officers of the Government, which are relied upon as constituting ratification of the kabuliat on behalf of the Government? In dealing with this question, it must be borne in mind that 'the acts of a Government officer,' as was pointed out by the Privy Council in The Collector of Mamuliipatam v. Cavaly Vencata Narrainapah (1860) 8 Moore's I.A., 500 (554), 'bind the Government only when he is acting in the discharge of a certain duty within the limits of his authority, or if he exceed that authority, when the Government, in fact or in law directly or by implication, ratifies the excess.'
18. We are invited to infer this ratification from the following circumstances: (1) The omission of the officers of the Government to issue the istahar or proclamation which the Collector of Chittagong was, by the Commissioner's letter of the 16th June 1838, Exhibit E, (ante p. 797) directed to publish, intimating that the settlement of Thana Ramu (which included taluk Shermast Khan) had been confirmed only for thirty years, and their omission to give any intimation to the holder of taluk Shermast Khan that his kabuliat was not accepted by the Government; (2) their strong expressions of opinion in favour of the permanent rights of noabad talukdars, as expressed in their official correspondence.
19. With regard to the alleged omission to issue the istahar or proclamation, which the Commissioner directed the Collector to publish, it is contended for the appellant, that, as the publication of the istahar is not proved, its publication ought not to be presumed, seeing there was great disinclination on the part of the Collectorate officers, including the Collector himself, to intimate to the talukdars the refusal of Government to sanction a perpetual settlement as is shown by Mr. Scott's letter of April 1842 to the Commissioner (see ante, p. 797). It is further urged that, if the publication of the istahar was thus purposely omitted by the officers of Government, the holder of taluk Shermast Khan was led to believe, and to act upon the belief, that the permanent settlement embodied in the kabuliat of the 9th November 1836 was sanctioned, and the Government ought to be held precluded from questioning the existence of the permanent right referred to in the kabuliat.
20. We are of opinion that this argument cannot prevail. The direction of the Commissioner to publish the istahar or proclamation was conveyed in his letter of the 16th June 1838 (ante p. 797) to Mr. Raikes, the Collector of Chittagong, and there is absolutely nothing to show that Mr. Raikes evinced any disinclination to publish the proclamation, or that it was not duly published. We are invited to say that the officer in charge in 1838 neglected to do his duty, in publishing the proclamation, because his successor in 1842 four years afterwards expressed to his superior officer an opinion adverse to the policy of sending for the talukdars to execute revised engagements. Having regard to the presumption in favour of the due performance of official acts, we are of opinion that in the absence of evidence to the contrary the publication of the istahar in question must be and ought to be presumed. Moreover, though, perhaps, it is unnecessary to follow this up, the disinclination of Mr. Scott related to sending for the talukdats to execute revised engagements, and when he was in reply directed by the Commissioner, Sir Henry Ricketts, to give due intimation to the talukdars, as 'it would be wrong to allow a talukdar to remain quietly in possession, and spend his money under the impression that his lease was in perpetuity' (see ante, pp. 797, 798), Mr. Scott replied (see ante, p. 798) 'as to the people being under the impression that the assessment is in perpetuity, I have never heard it advanced by any one, and it is opposed to all their past experience.' This indicates that, in Mr. Scott's opinion at any rate, no impression had been created in the mind of the people that permanent rights had been created. It is extremely improbable that the talukdars were not aware that their kabuliats and assessments had to be submitted for the sanction of the Government, and that being so, that they would not inquire whether such sanction had or had not been granted. There is nothing to indicate that the officers of the Government did anything to lead the holder of taluk Shermast Khan to believe that the kabuliat of the 9th November 1836 had been accepted by the Government, or that a permanent settlement had been sanctioned by the Government. Even if the officers of the Government had induced any such belief, their conduct was in violation, and not in discharge, of their duty as such officers, and being in direct contravention of the express orders of Government, could not bind the Government in any way.
21. There are no doubt strong expressions of opinion by certain local officer of the Government, especially Mr. Lowis and Mr. Cotton (see pages 264 and 277 of the Paper Book) in favour of the creation of permanent rights in noabad talukdars generally, and criticising adversely the policy of the Government in this matter; but these views were never accepted by the Government, and can have no real effect upon the question whether or not permanent rights were created.
22. We now pass to the last question, that of acquiescence. We are asked to say that the Government has acquiesced in the terms of the kabiliat, by accepting the rent thereby reserved after the expiration of the 30 years running from 1836. In the first place the rent was paid, not according to the terms of the kabuliat, which fixed the amount at Rs. 65.9-6-2 sicca and Company's Rs. 607-14-0, but at the rate of Rs. 1,101-8-6. This is admitted in the plaint (paragraph 4). There was then no acceptance of rent according to the terms of the kabuliat.
23. But in dealing with this question, one must bear in mind that, when the lease of a particular taluk determines it is not the practice of the Government to, at once, make a fresh or revised settlement of that particular taluk, but to deal with the district generally, and until the re-settlement of the district can be dealt with, to continue to accept the rent previously paid in respect of any particular taluk. It often takes, as if this case--the case of a large and wild district in Chittagong--many years before the Government can be sufficiently advised by its executive officers as 6o the terms of a re-settlement, and in the meantime it accepts the old rent. To say that this is tantamount to an acquiescence on the part of the Government that a previous settlement is to be regarded as creating permanent rights, does not strike us as a well founded conclusion. In our opinion no case of ratification or acquiescence has been established against the Government, such as to preclude it from saying that no permanent rights have been created under the kabuliat of the 9th November 1836.
24. The contentions urged for the appellant, therefore, all fail, and this appeal must consequently be dismissed, and the decree of the District Judge dismissing the plaintiff's suit affirmed with costs.
25. We cannot, however, part with this case without expressing our deep regret, without desiring to impugn his impartiality, that the District Judge of Chittagong should have thought fit, after the plaint had been filed in the Court of the Subordinate Judge, to transfer the case to himself to be tried, and then to try it. In 1884, as an executive officer of the Government, he had enquired into and reported upon these very noabad settlements, and in his report had expressed an opinion distinctly adverse to the asserted rights of the plaintiffs; and notwithstanding this, and the urgent objection of the plaintiffs, he elected at the instance of the Government to try the case, which, we understand, is a test case, and involving a very large amount of money. His judgment under such circumstances can be of but little value, and we express our surprise, equally with our regret, that such a course should have been adopted.
26. I concur.
27. I am of the same opinion.