1. This second appeal arises out of a suit brought by the plaintiff to have it declared that certain resumed chakran lands were chowkidari chakran lands of Mauza Bonpass of which he is the palnidar, and not the chakran lands of Mauza Haribati of which defendants Nos. 2 and 3 are the patnidars. The question stated in its simplest form would appear to be one of parcel or no parcel, and as such should be purely a question of fact; but the learned Doctor who appeared for the appellant raised points of law upon the construction of certain sections and upon the question of necessity for notice under Section 21 of Regulation VII of 1822.
2. It appears that in the year 1899 there was an enquiry made by a Commissioner, Mr. C.C. Mitra, with regard to the chowkidari chakran lands of Mauza Haribati. He found that the Roll Book of 1836 shows that there were 24 bighas 9 cottas and 8 chattaks of chakran lands in that mauza. But at the time of his enquiry the ckowkidars of Haribati were in enjoyment of 26 highas 4 cottas of chakran land. He accounted for it by saying that it was due to variation of standard measurement. He declared under Section 61 of the Chowkidari Act that this quantity of chakran lands appertained to Haribati; they were assessed at an annual rent of Rs. 58-5-3 and the zemindar who is also the zemindar of Mouza Bonpass had agreed by silent acquiescence to take settlement at half of that rent. The matter went before the Collector. He accepted the declaration of the Commissioner and handed over the lands to the Maharaja of Burdwan, who in due course settled them with the patnidar of Haribati. In 1907 a second Commission was issued by the Government of Bengal, and from the original papers before us it would appear, though the matter is not quite clear, that the scope of this. Commission was for the purpose of determining the status of certain chakran lands which had been left out in the previous enquiry, that in the course of this enquiry the second Commissioner examined the thak survey and found that it was there clearly stated that some of the plots which had been given by the first Commissioner to Haribati were actually in the ambit of Mauza Bonpass, and not only were in the ambit of Mauza Bonpass but that they were in the chowkidari chakran chaks of that mauza. He, however, declined to make any statutory declaration with regard to these plots, because the Collector had already dealt with them upon the report of the first Commissioner and he appears to have thought and rightly thought that they were outside the scope of his Commission.
3. The questions raised on behalf of appellant seem to us to be negatived by the facts which we have just set out. The first ground of appeal was that the first declaration of Mr. C.C. Mitra could not be used as evidence against the plaintiff because he had no notice of those proceedings. Section 60 of the Chowkidari Chakran Act, VI of 1870, B.C. lays down that in these chowkidari chakran enquiries the procedure shall be in accordance with Regulation VII of 1822, and it has been held in more than one case in this Court, of which we need only refer, to the case of Hiralal Mookerji v. Premamoyee Debi (1), where all the authorities are collected, that the absence of such notice would render the proceedings of the Commissioner of no effect against a person who was entitled to such notice and that the Civil Court would interfere, although but for such defect the order of the Commissioner would be final and conclusive. Now turning to Section 21 of the Regulation we find that the notice which is required is to secure the attendance of the defendant or the party otherwise impleaded and, as we have seen, in this enquiry before the first Commissioner the patnidars of Bonpass were in no way impleaded. It is quite possible that the lands in suit were at the time of the thak survey included in Mauza Bonpass and yet they may have been subsequently enjoyed by the chowkidars of Haribati. They were at the time of the first enquiry in the enjoyment of the chowkidars of Haribati and the Commissioner had no duty imposed upon him to give any notice to other patnidars who were in no way impleaded, so that we think that the report of the first Commissioner was really final and conclusive under Section 61.
4. The next, ground taken was that it must be assumed that the proceedings of the first Commissioner had been quashed inasmuch as the Local Government issued the second Commission in the year 1907. But as we have already seen, the proceedings seem to indicate that the second Commission was only issued to supply the omission in the first Commission and not to supersede anything which had been finally decided by that Commission aud by the orders of the Collector based upon that Commission.
5. A third point which was raised was as to the effect of the words 'final and conclusive', whether they mean incapable of revision by the executive authorities only or not open to question in a Court of Law, There is some conflict of judicial opinion upon this point, and we need only say that the remarks in the case we have cited are obiter, as has been pointed out by the learned Munsif. There have been more recent decisions in which the contrary has been held and in the view we have already taken of the proceedings the question does not really arise. No question of notice arises and as we have seen the second report in no way affected the first report, the question is purely an academical one.
6. The result is that the appeal must be dismissed with costs.