1. The litigations which have culminated in these two appeals were commenced by the appellants against the Secretary of State for India in Council, for declaration that the disputed lands in each suit were included in permanently settled estates held by them, that they were not liable to be assessed, as they have been assessed, with revenue by the Collector under the Bengal Alluvion and Diluvion Act, 1847, and for consequential reliefs. The defence of the Secretary of State in substance was that the disputed lands were not settled with the predecessors of the plaintiffs at the time of the Permanent Settlement and that they lay, at that time, in the bed of public tidal navigable rivers. The Subordinate Judge has dismissed the suits on the ground that the plaintiffs had failed to prove that the lands were included in the permanently settled estates held by them, and that consequently the proceedings for assessment of revenue could not be deemed illegal and without jurisdiction. The conclusion has been assailed before us as opposed to the facts established by the evidence and to well-recognised principles of law.
2. The lands in Suit No. 5 of 1915 and Appeal No. 12 of 1918 are claimed as part of the permanently settled estate No. 2699; they have been formed by the recession of the rivers Kaliganga and Dhulia and are situated in Mouzas Bhatsala, Nailtala and Chota Buiohakati. The lands in Suit No. 6 of 1915 and Appeal No. 127 of 1918 are alleged to appertain to the permanently settled estate No. 2694; they have emerged out of the bed of the river Charamuddi and are situated in Mouzas Char Hijaltala, South Char Hijaltala and Chandpura. It will be convenient to refer to the facts of the two suits separately.
3. As regards the first suit, there can be no doubt that the disputed lands did in recent times form part of the beds of the rivers Kaliganga and Dhulia and are now dry lands because the rivers have receded from their former beds. The substantial question in controversy is whether at the time of the Permanent Settlement, these river beds were settled with the predecessors of the plaintiffs as part and parcel of the estate granted to them. The plaintiffs can succeed, only if they can establish the affirmative of this proposition. The burden of proof lies on them, on the elementary principle that if their allegation is not made out, the decision of the Revenue Authorities is not displaced and remains unaffected. The Permanent Settlement papers have not been produced in this suit. The plaintiffs have consequently been constrained to rely upon the Thak and survey maps, made in 1859 and 1860. On a scrutiny of these maps, two cardinal fasts are discovered, which have an important bearing upon the solution of the controversy between the parties.
4. In the first place, it is clear that the river Dhulia which adjoins Bhatsala as also the river Kaliganga (sometimes called Adajuri) which pisses by Mouzas Nailtala and Chota Buiohakati, were both large tidal navigable rivers at the time of the surveys. The Kaliganga was 405 feet wide, while the breadth of the Dhulia at different places was 8:0, 960 and 1,200 feet respectively. The plaintiffs have endeavoured to negative the effect of this evidence, by an assertion that at the time of the Permanent Settlement these rivers were narrow channel; no evidence has been adduced in support of this allegation, The oral evidence, as might have been anticipated, is of no value. On the other hand, Runnell's map which is based on surveys made between 1764 and 1773, and has been produced on behalf of the Secretary of State, indicates the existence of Kaliganga and Dhulia as large navigable rivers in those days. The map of 'Alexander Hodges prepared in 1831, in so far as any conclusion can be drawn therefrom regarding the general outlines of the locality, indicates that at that time Dhulia was a large navigable river. The conclusion may, consequently, be drawn, with approach to such certainty as may reasonably be expected in this class of cases, that Dhulia and Kaliganga were large tidal navigable rivers at the time of the Permanent Settlement. In this connection. it is important to bear in mind that when the matter was under consideration by the Revenue Authorities, the Collector overruled the contention that the Kaliganga river was not a public navigable channel at the time of the Permanent Settlement, on the ground that the present plaintiffs had produced no evidence to suport their allegation. When the case was taken on appeal to the Board of Revenue, the view of the Collector was not seriously challenged; it was indeed explicitly stated in the order of the 25th December 1913 that 'there is not a shadow of a doubt, and this point has not been questioned at the hearing before the Board, that the Kaliganga river was a large navigable one at the time of the Permanent Settlement.' In the face of this order, it was of vital importance for the plaintiffs to produce evidence, as nearly as possible conclusive in character, that the Dhulia and the Kaliganga were not at the date of the Decennial or the Permanent Settlement (1789-93)--as they undoubtedly were at the time of the Thak and revenue surveys (1859-60)--public tidal navigable rivers. This the plaintiffs have completely failed to establish; it is clearly not sufficient for them to reiterate, without the support of tangible evidence, a contention which was found untenable by the Collector and was practically abandoned before the Board of Revenue. We must accordingly proceed on the basis that the Dhulia and the Kaliganga were, at the time of the Permanent Settlement, public tidal navigable rivers. This necessarily carries the implication that the river beds were then the property of the Crown, and, it must be deemed prima facie improbable, unless there is satisfactory evidence to the contrary, that they were settled with a private individual. We must now investigate whether such evidence has been produced, and this brings us to the consideration of the second fact alleged by the plaintiffs to be deducible from an inspection of the Thak and survey maps.
5. In the second place, the Thak and survey maps show that the rivers Kaliganga and Dhulia were included within the boundary of estate No. 2699. On this, the plaintiffs base their contention that the river beds must have been settled with their predecessors as part of their permanently settled estate, as the Thak and revenue survey maps furnish prema facie reliable evidence of the condition of things at the time of the Permanent Settlement. This, indeed, is the sheet anchor of the claim put forward by the plaintiffs in these litigation?. The identical argument had been pressed without success before the Revenue Authorities and proved equally unavailing before the Subordinate Judge. The Settlement Officer stated in his order of the 10th November 1911 that 'for convenience of measurement, most of the tidal navigable rivers were included in the Mouzas through which they passed,' and added that 'assuming that the revenue and Thak maps show that this navigable river was included in the Mouzis as surveyed in the Thak and revenue surveys, it does not follow that the river was settled as part of the estate at the time of the Permanent Settlement;' When the question was ultimately mooted before the Board of Revenue, Mr. D.J. Maopherson, Member of the Board, with his large experience of revenue matters, made the following observations:
The main objection pressed before the Board is that river Kaliganga was inoluded in the above Mouzis at the time of the Thak and revenue surveys, as the maps of these surveys show. These Mouzis lie only on one bank of the river and it is true that the maps show lines taken across the river at the extremities of the Mouzis. This was not an unusual practice at these surveys in various parts of Bengal and Bihar, and if one thing is more certain than another, it is that it was not due to any idea that the bed of the river really formed part of the riparian Mouzis. The lines were taken across the large rivers simply to connect up the survey stations on both banks. It is absurd to suppose that at the time of the revenue survey the whole land of this wide navigable river was included within the ambit of these Mouzas situated only on one bank of it. Had the lines been intended to mark the real boundaries of Mouzis, they would have shown part of the bed of the river as included also in the Mouzis on the other side of the river. The Deoennial Settlement papers do not show that the bed of the river was included within the estate of the objector.
6. It is remarkable that the plaintiffs have made no attempt whatsoever to minimise, mush less to neutralise, the effect of this weighty pronouncement. The burden rested upon them to establish that the conclusion of the Revenue Authorities was vitiated by a fundamental error; this burden has clearly not been discharged by the mere repetition of a contention 'which was rejected as groundless by the Revenue Authorities. On the other band, the decision of the Judicial Committee in Jagadindranath Roy v. Secretary of State 30 I.A. 44 : 30 C. 291 : 7 C.W.N. 193 : 5 Bom. L.R. 1 (P.C), as we shall presently see, supports the view adopted by the Revenue Authorities and by the Subordinate Judge.
7. In the case just mentioned, the plaintiff contended before the primary Court that as the survey maps showed that the entire bed of the river Brahmaputra was within his estate, the lands in the bed of the river must be taken to have been settled with his predecessors at the time of the Permanent Settlement. The Subordinate Judge gave effect to this contention on the ground that according to the decisions in Ram Jewun Singh v. Collector of Shahabad 19 W.R. 127, Saratsunderi v. Secretary of State 11 C. 784 : 5 Ind. Dec. (N.S.) 1282, Syama Sundari v. Jogobundhu 16 C. 186 : 8 Ind. Dec. (N.S.) 124 and Satcowri Ghosh v. Secretary of State 22 C. 252 : 11 Ind. Dec. (N.S.) 170, the Thak and survey boundaries show the boundaries of permanently settled estates. The District Judge on appeal dissented from this view and in reversing the decision of the trial Judge observed as follows:
The facts that the river passed through some of those estates in 1852 and that the area of the water was calculated and the whole shown in the one survey map of the village, are not, as far as I am aware, any admission by the appellant (the Secretary of State) that the river was part of the estate : it was shown together with the estate, and the two areas were calculated together or rather in the same map, purely for statistical purposes and for convenience.
8. On second appeal to this Court, it was urged that the District Judge had committed an error of law in misconstruing the maps and in refusing to give them their legal effect. Macpherson and Hill, JJ., overruled this contention and held that the District Judge had not committed any error of law in refusing to hold 'that the Thak and survey maps furnish in themselves sufficient proof of the plaintiff's case, because they show that the river then flowed through or alongside the villages in question and that it was included in the Mouza both according to the map and the surveyed area as stated in it.' The Court' added that the District Judge was right in saying that the statments in the map did not amount to an admission, on the part of the Government, of the fact which it was necessary for the plaintiff to prove. The maps might be evidence against the Government to the same extent that they would be evidence against the proprietor of an adjoining estate; and assuming them to be so and that they showed that the large navigable, river was included in the Mouzas as surveyed, it did not follow that the river was settled as a part of the estate at the time of the Permanent Settlement. The maps were evidence of possession at the time when they were made and as such might be evidence of title, but they were not in themselves necessarily sufficient to prove the plaintiff's case. The second appeal to this Court was consequently dismissed The case was ultimately taken before the Judicial Committee, where Lord Lindley observed that when the question arises whether lands shown on a particular Thak or survey map made since 1793 were or were not included in the lands charged with the assessment permanently fixed in 4793,, the Judge of first instance cannot in point of law be directed that he ought in all cases to act on the last Thak or survey map and to treat it as decisive in the absence of evidence to the contrary. It could not certainly be assumed that the disputed lands were dry lands in l793 or that the land forming the bed of a public navigable river was included in the assessment then permanently fixed. In this view the Judicial Committee held that on the evidence as it stood, the decision of the District Judge was right and was not vitiated by an error in point of law. It is manifest that the case before us presents in many respects a singular family likeness to the case before the Judicial Committee.
9. Our attention has been invited to the decision in Noto Coomar Dass v. Gobind Chunder Roy 9 C.L.R. 305, to show that a survey map is good evidence of possession according to the boundary demarcated thereupon. This is not disputed, and a survey map may be presumed to be correct when made and to furnish valuable evidence of the state of things at that time. But this does not necessarily enable a party, who asserts that a particular parcel of land was assessed with revenue in 1793, to discharge the burden which lies upon him to establish the affirmative of this proposition. The decisions in Kali Krishna Tagore v. Secretary of State 16 C. 173 : 15 I.A. l86 : 15 Ind. Jur. 413 : 5 Sar. P.C.J. 237 : 8 Ind. Dec. (N.S.) 115, Abdul Hamid v. Kiran Chandra Roy 7 C.W.N. 849, Moizuddi Biswas v. Ishan Chandra Das 7 Ind. Cas. 849 : 13 C.L.J. 293 : 15 C.W.N. 706, Gokul Chandra Das v. Hira Sundari Dasi 9 C.W.N. 383, Ananda Hari Basak v. Secretary of State 3 C.L.J. 316 at p. 326, Dunne v. Dharam Kanta Lahiri 35 C. 621, Fazlar Rahim v. Nabendra Kishore Roy 15 Ind. Cas. 341 : 17 C.W.N. 151, Syam Lal v. Luchman Chowdhry 15 C. 353 : 7 Ind. Dec. (N.S.) 819 and Haradas v. Secretary of State 43 Ind. Cas. 361 : 26 C.L.J. 590 (P.C.) : 22 M.L.T. 488 : (1918) M.W.N. 28 : 20 Bom. L.R.40, do not lay down any general inflexible rule of law that the facts stated in a Thak or survey map must be presumed to have been in existence at the time of the Permanent Settlement. The question is essentially one of fact and must be determined on the facts and circumstances of each case. Where, as here, the plaintiffs sue the Government for wrongful assessment of lands alleged to be part of their permanently settled estate, it cannot be laid down a priori that the relevant survey maps are or are not sufficient to shift the onus on to the defendant. The decision in Maharaja of Burdwan v. Secretary of State 46 Ind. Cas 395 : 22 C.W.N. 872 : 46 C. 300, is of no real assistance in this connection, as the river in that case was not navigable, and there were indications that the revenue derived from the river (such as water duties and ferry income) entered into the calculation when the Government revenue was settled.
10. We hold accordingly that the Subordinate Judge has correctly held that the plaintiff] have failed to prove that the disputed lands formed an integral part of their permanently settled estate.
11. We have next to consider the lands in dispute in Suit No. 6. The Mouzas in that litigation are on the bank of the river Charamuddi. That river was 660 feet broad at the time of the revenue survey and was doubtless a large navigable tidal river. Indeed, it was not seriously denied before the Revenue Authorities that the river had been tidal and navigable from the time of the Permanent Settlement, as is amply indicated by the maps of Rennell and Hodges. Here also the question arises, whether the delineation of the boundary in the Thak and survey maps justifies the inference that the river bed was included in the permanently settled estate held by the plaintiffs. The only distinction between the two cases is that here the boundary line of the Mouzas does not include the whole of the river bed but passes through it. This, in our opinion, makes no substantial difference, as there is no indication that what formed the bed of a large public tidal navigable river at the time of the Permanent Settlement was settled with the private individuals who became proprietors of the dry lands on the two banks. Consequently, here also, as in the case of the rivers Kaliganga and Dhulia, we must hold that the plaintiffs have failed to prove that the disputed lands were in 1793 included in their permanently settled estate.
12. There is only one other point which requires mention. The plaintiffs have argued that even on the assumption that their main contention has failed, they have proved that the Revenue Authorities have assessed revenue on what was dry land in 1793, We have carefully examined the maps and have arrived at the conclusion that there is no foundation for this contention. The report of the Commissioner and the facts elicited in his examination in Court do not inspire absolute confidence in his proceedings, and we are not prepared to hold that they throw any doubt upon the accuracy of the work of the Revenue Authorities. Nor are we prepared, in view of what took place in the Court below, to direct a fresh enquiry and reconsideration of the whole case.
13. The result is that these appeals fail and are dismissed with costs. The hearing fee in No. 127 is assessed at three gold mohurs.