1. This Rule was granted at the instance of the second party in Section 145 proceedings on three grounds, first, that the provisions of the Bengal Alluvial Lands Act (Act V of 1920) governed the matter and that there was no jurisdiction in the Sub-divisional Magistrate to deal with the matter under Section 145; secondly, on the ground that the Magistrate, having discarded as unreliable the only evidence on the record, erred in making the order which he did finding possession with the first party only on surmise, and on the allegation of the first party which was not supported by reliable evidence; thirdly, on the ground that the Magistrate erred in law in examining the Amin as a Court witness after the close of both parties' case and after arguments had been submitted to him. The dispute in question was with regard to a char, char Kashim, to the south of which lay another chat', char Umed, which was submerged-both chars lying in the Meghna river. It appears that there has been a dispute between the Government and the Sukul Babus with regard to the ownership of char Kashim which was settled by half of the char Kashim namely, the western half, being relinquished by the Government to Sukul Babus; the eastern portion being retained by the Government as Government Khasmahal and settled with the Sakul Babus. I will deal with the third ground first. It does not appear that either party asked the Magistrate after the Amin had given his evidence to allow further argument. This being so, it is too late at this stage to raise the question which is raised by the fifth ground of the petition.
2. So far as the first point is concerned, that is to say, ground No. 1 of the petition, in our view notwithstanding the argument addressed to us, it is open to the Magistrate, in the case of alluvial lands recently reformed where questions of breach of the peace arise, to deal with the matter either under Act V of 1920 or under the provisions of Section 145. It was urged before us by the learned Vakil who appears for the second party that in the case of alluvial lands recently formed the provisions of Section 145 are impliedly repealed by Act V of 1920, and the learned Vakil relied on various authorities where this principle is laid down. Amongst them are Re : William Baker  2 Hurlstone and Norman 219 and another case reported in 6 Hurlstone and Norman at page 653 and the case reported in 28 Law Journal, (Magistrate's cases) at page 53 and two recent cases, Fortescue v. The Vestry of St. Mathew Bethnal Green  2 Q.B. 612 and Summers v. Holborn District Board of Works  1 Q.B. 612. Nobody disputes the proposition for which the learned Vakil was contending that where you have an earlier Act with certain penalties and a subsequent Act with other penalties as general proposition the earlier statute is repealed by the later statute even if there are no express words in the latter statute repealing the former. But I think it is clear if you look at Section 10 of Act V of 1920 that this negatives any idea of the implied repeal of Section 145 so far as recently formed alluvial lands are concerned. It is contended that the first part of this section is a mere surplus age, but it seems clear when one reads the words of the section that it does contemplate proceedings under Section 145 even after the institution of Act V of 1920. Moreover, I can well conceive that having regard to the provisions of Clause 3 of Act V of 1920 there may well be cases, which are somewhat doubtful as to whether they fall within the provisions of Section 3, and it may be necessary in view of the doubt, if a breach of the peace is apprehended, that the matter should be dealt with under the provisions of Section 145. The learned Vakil for the second party suggests that so far as Clause 3 is concerned the opinion of the Collector is decisive as to whether they are recently formed lands or not. The section does not make his opinion conclusive and I am not certain that it would not be open to argument that he may have formed a wrong opinion as to whether the provisions of Section 3 are applicable or not. In any case looking at the provisions of Act V of 1920 and specially Clause 10, we think it is clear that there was no implied repeal of Section 145, so far as alluvial lands recently formed are concerned by Act V of 1920.
3. The remaining point is ground 4. Apparently, the second party and the first party are tenants of lands in Char Kashim. Char Umed, as I have stated, had disappeared and there was some accretion of land to Char Kashim. This was claimed by the tenants of Char Kashim as accretion to their land. Three, however, of the tenants went behind the back of the others to the Government it being Government Khas mahal land and suggested that the accreted land was really Char Umed and. that this land should be settled with them. As a result of this a survey was held on behalf of the Government; and the other tenants of Char Kashim in disgust apparently have since these proceedings kept the second party out of Char Kashim. What is said is that the learned Sub-Divisional Magistrate, having suggested that in cases of this kind it was difficult to get any impartial evidence and having impliedly rejected the evidence of the first and second parties and further suggested that the three witnesses whom he named were reliable, has subsequently rejected the evidence of these witnesses and arrived at his decision as to possession of the first party upon surmises which he has formed or arrived at. I do not think that the judgment really bears the interpretation sought to be put upon it. It is true that the Magistrate suggests, as must be the case, that the evidence of both the first and second parties is biased evidence but it does not mean that he necessarily rejected that evidence; and it seems to me that he has arrived at his decision after rejecting the evidence of the three witnesses whom he considers impartial witnesses, and rejected that evidence for the reasons which he has stated and that having done so he has accepted the evidence as to the possession of the first party. This being so there is no ground for our interference on this point.
4. Under the circumstances the Rule must be discharged.
5. I agree.