1. In this case the Revenue Authorities assessed to revenue certain lands within the ambit of the estate of which the respondents are the proprietors. The respondents have succeeded below in a suit brought by them to contest the validity of the assessment and to recover possession of the lands, and an appeal has been preferred on behalf of the Secretary of State.
2. The lands in question were, at the lime of the Thak and Revenue surveys of 1859 and 1860, the bed of a done or river known in one part as the Lakshipura and in other parts, apparently, by the names of the villages by or through which it flowed. The river was part of a net work of rivers and channels connected ultimately with the main stream of the Ganges, Whatever else may be said about this river, it is a fundamental fact in the case that it never was a public navigable river. The fast is asserted in the plaint and is not denied in the written statement. There is no express issue on the subject and the Subordinate Judge finds on the evidence that the done was 'small and shallow.' The evidence is that it was in the habit of drying up during the hot season.
3. The river, owing to natural causes, silted up and the former bed became suitable for cultivation. According to the evidence, the change occurred some time in the eighties of the last century. By proceedings under Act IX of 1847 commenced in 1903, these lands on the site of the river were assessed to revenue, and the assessment was confirmed by an order of the Board of Revenue, dated the 25th February 1913. The Revenue Officers took possession of the lands on the 1st April 1913, but the circumstances under which they did so are not before us. The present suit was instituted on the 17th April 1914.
4. The learned Subordinate Judge found on the first issue framed by him that the suit was not barred by limitation; on the second Issue that the lands were assessed to revenue at the time of the Permanent Settlement, and on the third issue that the Revenue Authorities had no jurisdiction to proceed under Act IX of 1847. By his decree he declared that the assessment was invalid and restored the respondents to possession.
5. On the second issue, the important issue on the merits, whether the lands were assessed to revenue at the time of the Permanent Settlement, the respondents examined a number of witnesses of advanced age who all speak to the done coming first into existence a few years before the that and revenue surveys. The Subordinate Judge has accepted the evidence of these witnesses, and, if it is accepted, it is conceded that the appeal must fail. The evidence would go some length at least to show that the lands were dry at the Permanent Settlement and, if so, they must have been assessed to revenue and cannot now be re-assessed.
6. Two answers are made on behalf of the appellant, the Secretary of State. The first is that the respondents had no right to make the case that the lands were dry at the Permanent Settlement and no right to give evidence in support of that case. I shall deal with that when I come to the question of limitation.
7. The second answer is that the evidence is unreliable, It does seem that the locality must be a healthy one to produce so many old men with memories so clear, but their account of the matter is by no means impossible or improbable.
8. But, if this body of evidence be rejected, and if it be assumed that this river existed at the Permanent Settlement, the result is the same.
9. On that hypothesis it is argued for the appellant, that the harden lies on the respondents to show that the lands were included within the limits of the estate permanently settled with the respondents' predecessor. That may be so, but the harden is discharged or shifted as soon as it is shown or admitted that this river, which is within the ambit of the estate, was not a navigable river.
10. We were referred to Jagadinda Nath Roy v. Secretary of State 30 I.A. 44 : 7 C.W.N. 193 : 30 C. 291 (P.C.) : 5 Bom. L.R. 1 : 8 Sar. P.C.J. 412 and to some of the cases in which it has been followed and applied. But in all those cades the subject of dispute was the bad or the former bad of a public navigable river. The question is always one of fact and the law has to be applied to the facts of each case as it arises Cf. Haradas Acharjya chowdhuri v. Secretary of State 43 Ind. Cas 361 : 26 C.L.J. 590 at pp. 596. 599 : 600 : 22 M.L.T. 438 : (1918) M.W.N. 28 : 20 Bom. L.R. 49 (P.C.). A public navigable river is opposed to a private non-navigable river. The distinction represents in more precise language the distinction which the Regulations draw between the principal rivers or rivers spoken of in association with the sea on the one hand, and the small and shallow rivers on the other, the test being whether a river is navigable for boats at all seasons of the year Maharaja of Burdwan v. Secretary of State; Secretary of State v. Bijoy Chand Mahatap 46 Ind. Cas. 305 : 46 C. 390 at pp. 398, 408 : 22 C.W.N. 872. The Question of size may not be without importance but, sneaking' generally, the presumption in the one case is that the bed belongs to the public or is public domain and in the other that the bed belongs to a private proprietor. In the absence of any other evidence to the contrary than that afforded by a thak or survey map, these natural presumptions may be sufficient to displace the contrary evidence of the map. In the present case the thak and survey maps support the prima facie presumption that this river with its bed was included in the estate permanently settled which now belongs to the respondents, and the burden of proving the contrary rests on the appellant. As apart from the map, there is no evidence one way or the other, the appellant fails.
11. This view is supported by the language of the fourth Clause of Section 4 of Regulation XI of 1825 which speaks of 'small and shallow rivers, the beds of which with the jalkar right of fishery may have been heretofore recognised as the property of individuals.' It is also supported by the cases sited in Maharaja of Burdwan v. Secretary of State; Secretary of State v. Bijoy chand Mahatap 46 Ind. Cas. 305 : 46 C. 390 at pp. 398, 408 : 22 C.W.N. 872 as to the proprietary right in the beds of non-navigable rivers which run between two estates Maharaja of Burdwan v. Secretary of State; Secretary of State v. Bijoy Chand Mahatap 46 Ind. Cas. 305 : 46 C. 390 at pp. 398, 408 : 22 C.W.N. 872.
12. But then, it is said, that even if, in the language of Regulation 11 of 1819, this river was included within the limits of the estate for which a Permanent Settlement was concluded, the Revenue Authorities are now entitled to assess revenue on the dry bed. The contrary, however, has been decided by the Privy Council with reference to the provisions of Regulation II of 1819, and those of Act IX of 1847. Secretary of State v. Fohamidannissa Begum 17 I.A. 40 : 17 C. 590 at pp. 597, 599 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933; Jagadindra Nath Roy v. Secretary of State 30 I.A. 44 : 7 C.W.N. 193 : 30 C. 291 (P.C.) : 5 Bom. L.R. 1 : 8 Sar. P.C.J. 412 and tee Maharaja of Burdwan v. Secretary of State; Secretary of State v. Bijoy Chand Mahatap 46 Ind. Cas. 305 : 46 C. 390 at pp. 398, 408 : 22 C.W.N. 872.
13. From the argument addressed to us, it seems to be thought that there is something in the fourth clause of Section 4 of Regulation XI of 1825, read with the second proviso to the first clause, which justified the assessment made in the present case.
14. The first Clause of the section applies to land 'gained' by accession from a river or the sea, the word 'gained' being that used in the second Clause of Section 3 of Regulation II of 1819 and interpreted in the decisions of the Privy Council. Such land is to be considered an increment to the estate to which it is annexed subject to two provisos, firstly, that the proprietor is not to have a larger Interest in such land than he has in the parent estate, and secondly, that She land is not to be exempted from 'any assessment for the public revenue to which it may be liable under the provisions of Regulation II of 1819, or of any other Regulation enforce.'
15. The fourth Clause enacts that sand banks or churs thrown up in small and shallow rives ''shall as hitherto belong to the proprietor of the bed of the river, subject to the provisions stated in the first Clause of the present section.''
16. There is no dispute that the' first proviso is operative both in oases which arise under the first Clause and in oases which arise under the fourth clause. As to the second proviso it neither adds to nor subtracts from the rights and liabilities of the proprietor under preceding Regulations, including II of 1819. It introduces, therefore, no new element which takes the case out of the Privy COUNCIL decisions.
17. In Fahamidannissa's case 17 I.A. 40 : 17 C. 590 at pp. 597, 599 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933, the question arose as to lands dry in 1793 which afterwards became covered with water and then again reformed. If, as would appear from the facts stated in the report, the lands had been dileviated by the action of navigable rivers, the case was, if anything, a stronger one than the present, because the lands had, temporarily at least, during the period of submergence, become a part of the public domain. The lands in the present case, whether or not they were covered, with flowing water at the Permanent Settlement, were never a part of the public domain.
18. It is abundantly clear, therefore, that neither Regulation II of 1819, nor Act IX of 1847, empowers the Revenue Authorities to assess the lands now in question. If they were river bed at the Permanent Settlement, they were nonetheless, in the circumstances lands presumably within the estate settled. That being so, they are in no respect different from other waste lands included in the estate, As the Privy Council said in Lopez v. Muddon Mohan Thakore 13 M.I.A. 467 at p. 473 : 14 W.R.P.C. 11 : 5 B.L.R. 521 : 2 Suth. P.C.J. 336 : 2 Sar. P.C.J. 594 : 20 E.R. 625. 'The site is the property.' Whatever changes may have occurred, from natural or artificial onuses, however the land may have improved in value, Government are not entitled to additional revenue for such lands Kandukuri Balasurya v. Secretary of State 41 Ind. Cas. 93 : 41 I.A. 166 at p. 185 : 40 M. 836 at p. 907 : 33 M.L.J. 144 : 22 M.L.T. 76 : 15 A.L.J. 697 : 21 C.W.N. 1089 : (1917) M.W.N. 536 : 19 Bom. L.R. 751 : 6 L.W. 340 : 2 P.L.W. 260 : 26 C.L.J. 290 (P.C.).
19. There remains the question of limitation. In the Court below, Article 14 of the present Limitation Act seems to have been applied. It was held that, with the deduction allowed by Section 15(2) of the Act, the suit was in time. It was argued before us that the procedure applicable to the ease was that provided by Sections 22, 23 and 21 of Regulation II of 1819, as modified by Section 10 of Regulation III of 1828 and that the suit was barred by limitation under Section 24 of the former Regulation. If that be so, Section 15 of the Limitation Act is inapplicable Kalimuddi Mollah v. Sahibuddin Mollah 54 Ind. Cas. 705 : 30 C.L.J. 455 : 24 C.W.N. 4 : 47 C. 300.
20. It was further argued on the same basis that the respondents were not at liberty to tender evidence that these lands were dry lands at the Permanent Settlement (Regulation III of 1828, Section 10, third clause).
21. The effect of Act IX of 1847 on the procedure provided by the Regulation cited was considered by the Privy Council in Fahamidunnissa's case 30 I.A. 44 : 7 C.W.N. 193 : 30 C. 291 (P.C.) : 5 Bom. L.R. 1 : 8 Sar. P.C.J. 412. Their Lordships held (page 47) that Act IX of 1847 only dealt with machinery and (page 51) that it only applied to lands 'already liable to be assessed under existing legislation.' They further held, on the terms of the first section, that it was only in relation to such lands 'that the previous Regulations are to cease to have effect.'
22. In my opinion, therefore, there is considerable force in the argument that, in cases where the Revenue Authorities properly take action under Act IX of 1347, the procedure provided by the Regulations is swept away by section I of the Act, but where the action taken is unauthorised and invalid, the statutory remedy is still the remedy which the Regulations provide.
23. It is unnecessary, however, in the present case to express a final opinion on this topic.
24. As regards the pleadings, even if the question whether the lands were dry at the Permanent Settlement is anything more than a question of the evidence admissible under the general issue whether the lands are liable to assessment, the result, in the view I take, is the same whether the lands were dry at the Permanent Settlement or were covered with water.
25. As to limitation, under Section 24 of Regulation II 'persons whose lands may be assessed' are entitled to sue 'any time within one year from the date of their being informed of the Board's decision.'
26. The Court below was not asked to apply this provision and, as Greaves, J., pointed out during the argument, there is no evidence on the record showing the precise date on which the respondents were informed of the Board's decision. It is stated in the plaint that the local officers took possession of the estate on the 1st April 1913, but there is no admission by the respondents that the Board's decision was communicated to them before that date. I am unable to say, therefore, that, supposing action 24, applies the gait is out of time.
27. In my opinion the appeal should be dismissed with costs.
28. I agree.