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Raja Kritanand Singh Bahadur and ors. Vs. Secretary of State and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1940Cal506
AppellantRaja Kritanand Singh Bahadur and ors.
RespondentSecretary of State and ors.
Cases ReferredGobinda Narayan Singh v. Sham Lal Singh
Excerpt:
- 1. this appeal is by defendants 1 to 3 in a suit instituted by the secretary of state for india in council on 27th march 1929, for recovery of nine jalkars or fisheries. they are known as (1) patalchandi (2) nimajole (3) chandmari (4) gangaprosad (5) mayamari (6) goaltuli (7) laldhubri (8) tulsiganga. the ninth jalkar is over a portion of the river bhagirathi which for brevity's sake will hereafter be called by the name of ganga bhagirathi or bhagirathi simply. at the trial the plaintiff gave up his claim to goaltuli and laldhubri on the admission that they are no longer fisheries, being now dry lands. tulsiganga is a long narrow channel, but the remaining five jalkars are in beels or almost land locked waters connected by narrow channels or daras with the river bhagirathi, except.....
Judgment:

1. This appeal is by defendants 1 to 3 in a suit instituted by the Secretary of State for India in Council on 27th March 1929, for recovery of nine Jalkars or Fisheries. They are known as (1) Patalchandi (2) Nimajole (3) Chandmari (4) Gangaprosad (5) Mayamari (6) Goaltuli (7) Laldhubri (8) Tulsiganga. The ninth Jalkar is over a portion of the river Bhagirathi which for brevity's sake will hereafter be called by the name of Ganga Bhagirathi or Bhagirathi simply. At the trial the plaintiff gave up his claim to Goaltuli and Laldhubri on the admission that they are no longer fisheries, being now dry lands. Tulsiganga is a long narrow channel, but the remaining five jalkars are in beels or almost land locked waters connected by narrow channels or daras with the river Bhagirathi, except Mayamari which is connected with another river called Pagla. The plaintiff claims the exclusive right to fish not only in those beels but also in some of those connecting channels or daras.

2. There were five defendants to the suit. The first three are the proprietors of eight annas share and the last two of the remaining eight annas share in a zemindary known as pergunah Ekbarabad formerly touzi No. 1937 of the Purneah Collectorate, now No. 65 of the Maldah Collectorate, which was permanently settled with their predecessor-in-interest Raja Vedananda Singha Bahadur on 16th June 1819, under Regulation, I of 1793. Before the said permanent settlement the said pergunah appears to have been settled successively for terms of five years with Maharaja Radha Nath of Dinajpore and others till 1809 when the decennial settlement was concluded with Dular Singh Choudhury under Regulation, 8 of 1793. The sites of the aforesaid five beels, Patalchandi etc. are within the geographical limits of the zemindary Pergunah Ekbarabad and the channel Tulsiganga and the material portion of the river Bhagirathi, which is not navigable at all seasons of the year, also flow through their zemindary. The learned Subordinate Judge passed a decree in favour of the plaintiff in respect of the seven jalkars, the claim to Goaltuli and Laldhubri having been, as we have already stated, abandoned by the plaintiff. Defendants 4 and 5 have not appealed.

3. A several fishery known as 'Pergunah Gangapat Islampore' was granted by Nawab Alivardi Khan, a Mahomedan ruler of Bengal in pre-British times, to the grandmother of one Hoolaus Chand. This grant was confirmed by Nawab Mohabat Jung in favour of Hoolaus Chand's father Bhagmal. Before 1789 the Government gave talooki settlements to Hoolaus Chand, i.e., settlement on the basis that he was the proprietor. When the question of decennial settlement under Regulation, 8 of 1793 was being considered, the Collector wrote a letter on 2nd October 1789 to the president and members of the board of revenue (Ex. Q B 1) We have marked the paper books thus : Part I as A Part II Vol. I as B and Part II Vol. 2 as C. to the effect that Hoolaus Chand was not really a talookdar but subordinate tenure holder under the zemindars of Conkjole. The Board of Revenue, however, directed the Collector to conclude the decennial settlement with him with the reservation that in case the zemindars of Conkjole established their claim within six months the settlement to Hoolaus Chand would be nullified and settlement would be made with the former. By a document dated 15th November 1790, the decennial settlement of the Jalkar 'Pergunah Gangapat Islam-pore,' was concluded with Hoolaus Chand, (Ex. C (1) B 4) from 1197 to 1206 B.S. and the zemindars of Conkjole not having preferred thereafter any claim to have settlement of the said mehal, the permanent settlement under Regulation 1 of 1793 was concluded with Hoolaus Chand from 1207, at an annual revenue of Rs. 3048-7-8.1 (sicca). On 1st January 1800 Hoolaus Chand executed the permanent settlement kabuliat (Ex. C; B42). In the decennial and permanent settlement kabuliats no detailed specification of the jalkar was given, save and except that it was described by the name 'Jalkar Pergunah Gangapat Islampore.' It is admitted in the case that an exclusive right of fishery was granted by the Crown to Hoolaus Chand over waters which then went by the name of Pergunah Gangapat Islampore. There is also no controversy that the said right was conferred on him on the waters of the navigable stream of the Ganges from the up stream limit at Pointy to the down (sic) am limit at Sooty. Both these villages are shown in the map prepared by Major Rennel between 1767 to 1772 (Ex. 6(C); Map No. 8). The controversy is as to whether the said jalkar covers waters claimed in the suit which are not in the bed of the navigable river Ganges.

4. There can be no doubt that fisheries situated within the geographical limits of Pergunah Bkbarabad which had been granted by the Crown to others as incorporeal rights before the decennial settlement of that Pergunah, had not been included in the assets of zemindary of Pergunah Ekbarabad at the time of the permanent settlement. The decennial and the permanent settlement kabuliats (Ex. C13 (a); B60 and Ex. C4(a); B64) exclude all sairats from the settlement. The word sairat includes profits from fisheries (Wilson's Glossary p. 454). The zemindar of pergunah Ekbarabad had therefore the right to fish only in those lands covered with water within the limits of his pergunah, and that only as an incident to his ownership of those lands, the incorporeal right to fish in which had not been granted before by the Crown to others. The fisheries mentioned in the returns, called Tahut Milani papers, (Ex. B; B 6-21) made by the zemindar of Pergunah Ekbarabad in the year 1793-94 cannot be taken to include any of the extensive fisheries in suit. The two jalkar mahals mentioned in those returns are very small, the assets of one being Rs. 29-8-0 and of the other Rs. 37-8-0. The jalkars in suit cannot be taken to have been included in the defendants' zemindary as the assets thereof were not taken into jaccount in settling pergunah Ekbarabad 'with their predecessor Forbes v. meer Mahomed Hossein (1874) 12 Beng. L.R. 210. Still, plaintiff cannot succeed unless he can establish his right in them by showing that they are included in jalkar pargunah Gangapat Islampore. Before we take up this question the nature of the waters in which the right to fish is claimed by the plaintiff and the history of jalkar pergunah Gangapat Islampore must be noticed.

5. In 1767-72 the river Bhagirathi (called Bagrutty river in Rennel's map) branched off from the river Ganges from a point near the village Sumdah below Pointy and again joined the river Ganges at a point near Sooty. Its course is shown in Rennell's map (Ex. 6(c); Map No. 8). The revenue survey maps of 1847-48 have not been produced, but in sheets Nos. 6 and 7 of the revenue survey map of 1880 (Ex. 6 (a) and Ex. 6 (b); Maps 6 and 7) the position of the river Bhagirathi and of the old bed of the river Ganges in 1847-48 are indicated. These maps show that the river Bhagirathi branched off in 1847-48 from the river Ganges at a point just below Ganga Govindapore, joined another branch of river Ganges called Pagla, which joined the river Ganges again below Chandpur. Both Rennel's map and these revenue survey maps indicate that both the ends of the river Bhagirathi were open in 1767-72 and also in 1847-48. The nature and position of the river Bhagirathi with reference to the river Ganges about the year 1880 can be reasonably ascertained by placing together the revenue survey map sheets Nos. 1, 6 and 7 (Exs. H(62), Ex. 6 (a) and Ex. 6(b); Maps 60, 6 and 7). A channel, (which is named Morganga (dead channel of river) in sheet No. 6) issued out of the river Ganges from a point a little to the south of Rahimpur (near figure 6) marked in sheet No. 1. The northern end of the river Bhagirathi issued from this dead channel at a place south of Ganga Govindpur marked in sheet No. 6. It joined the river Pagla at a place near Lalbazar Silk Factory. From that place it and the Pagla flowed through a common bed up to Chandpore, where it separated again. It flowed in a westerly course and again joined the river Ganges at Jagarnathpur Kidder-pore, the Pagla taking the easterly channel and joining the Ganges further east near Turtipore Indigo Factory marked in sheet No. 7. Prom these maps it appears that about 1880 its northern mouth was closed except during the rainy season, but the southern mouth was connected with the river Ganges at all seasons of the year. The evidence on the record establishes that its condition is similar now. At the north waters of the river Ganges enters Bhagirathi only for about three months during the rainy season, but the southern end is connected with the river Ganges all the year round. It is not navigable for nine months of the year but during the rainy season boats of moderate sizes can pass. Portion of the river Bhagirathi from Sadullapore to Belbari Ghat is the subject-matter of the suit (Plaint Map - Map No. 2).

6. Tulsiganga is a narrow and shallow channel issuing out of the Pagla river and falling into the Bhagirathi river. The flow is perennial. The other five waters, Patalchandi, Nimagole, Chandmari, Ganga Pro-sad and Mayamari are large sheets of inland waters in the nature of beels which do not completely dry up at any part of the year. The first four are connected by small channels or daras with the Bhagirathi river and the last with the Pagla river. These daras are not artificial channels excavated by human agency. An attempt was made by the defendants to establish that they were artificial channels, but the evidence on the point is insufficient to establish that fact. They are natural channels existing for a 'long time, as far as memory goes. They are, however, narrow and shallow channels. They dry up for nine months or so in the year and during those nine months there is no flow of the waters of Bhagirathi or the Pagla river into those beels. During the rainy season, however, the daras are filled up with water and through them the beels receive the waters of the Bhagirathi or the Pagla river' as the case may be. The Commissioner has noted the details in his report which we accept, as representing the true state of things. The beels and the connecting daras are shown in the Commissioner's map (Map No. 3).

7. The jalkar under the designation of 'pergunah Gangapat Islampore' was permanently settled, as we have already stated, with Hoolaus Chand in the year 1800. It was sold at a revenue sale in the year 1805 or 1806 and purchased by the Government. It thus became a Government Khas Mehal from that year. Government granted short-term ijaras upto 1823 or so at rents which were less than the amount of the revenue assessed upon it at the time of the permanent settlement. The reduction is explained in the letter of the Commissioner of the Rajshahye Division dated 14th September 1855 (Ex. O2-B 91.) The reason given was that neighbouring zemindars had appropriated parts of the jalkar. In 1870 the jalkar was divided into two portions by the Board of Revenue in its proceedings dated 9th August of that year. The northern portion, called Part I, was from Pointy upto the north of the Maldah-Rajmehal Road, and the southern portion, called Part II, was from the south of that road up to Shibgunj, Turtipore and Sooty. The southern portion was made into an in. dependent estate, No. 557 of the Maldah Collectorate with an annual revenue of Rs. 1700 and cess Rs. 17. It was advertised for sale in the Calcutta Gazette of 28th September 1870, (Exs. I and I (1)-B 126 to 129). At the sale held on 5th November 1870, Paresh Nath, Bhagaban Chandra and Doman Chandra Shaha Choudhury purchased it, their purchase taking effect from 1st April 1871, (Ex. E, B 131). They continued as proprietors till about 1888 (there is no definite evidence about the exact date). The estate was then put up to sale for arrears of revenue and the Raja of Pakur purchased it. He however continued to be the proprietor for a short period, for he defaulted in paying revenue in 1892, with the result that the mahal was again put up to sale under Act 11 of 1859 and was purchased by the Government on 4th November 1892 (Ex. 2, B. 157). In this suit the Secretary of State claims exclusive jalkar rights in the waters mentioned above as proprietor of estate No. 557 of the Maldah Collectorate, basing his title on the aforesaid purchase at the revenue sale.

8. In his plaint he admits that the defendants are in possession for the last 40 years. He states that Jalkar Gangapat-Islampore (southern portion) comprises the main stream of the Ganges from Bajmehal to Turtipore together with all inlets and outlets, dhapa (expanse of low land) damo-shes (pools of water in depressions), koles (remnants of river channel closed at one end), sota (small nature channel or water course), margangas (bed of dead river), etc. situate within the two high banks of the Ganges as well as jalas (waters) beyond the two banks of the river Ganges which are connected with the river Ganges during the substantial part of the year (para. 2). In para. 3 he expressly states that the waters described in the schedule to the plaint are component parts of Jalkar Gangapat Islam-pore. In paras. 4 and 5 he describes the nature of the waters described in the schedule by stating that the river Bhagirathi is connected at one end with the river Ganges throughout the year and at the other end only during the rainy season and the other waters are connected with it (the Bhagirathi) only during the rainy seasons. He makes the statement that the waters and fish of those jalas are waters and fish of the river Ganges. He winds up these two paragraphs by again repeating that those waters are component parts of the jalkar Gangapat Islampore. The statement in the plaint that the waters and fish of the jalkars or jalas in suit are the waters and fish of the main river Ganges have given the opportunity to the defendants-appellants to raise interesting arguments.

9. Mr. Banerjee appearing for them urges that the case of the plaintiff as made in the plaint, is that he has exclusive right to fish in the channel of the navigable stream Ganges from Rajmehal to Turtipore, and that he has also the exclusive right to fish in the waters described in the schedule to the plaint only because those waters are supplied with waters and fish by the river Ganges. He says, accordingly, that the plaintiff can only succeed if those waters can be considered as adjuncts of the river Ganges; but they cannot be considered as adjuncts because the connexion directly or indirectly with the Ganges is not throughout the year. We do not however construe the plaint in that manner. The plaintiff made the definite case that those waters are component parts of the Jalkar Gangapat Islam-pore. He also pleaded further facts which in his opinion would support his case on the basis that the waters in question were parts of the same river system. It is not also his case that he had the exclusive right of fishing only in the river Ganges between Rajmehal and Turtipore and that the river has now or in the past had made the waters claimed in the suit as its own. These facts must in our judgment be kept clearly in sight in this case, and on them many of the decisions cited before us by both parties must be distinguished. Most of those decisions are noticed in the judgment of Lord Sumner in Streenath Roy v. Dinabandhu Sen (1914) 1 A.I.R. P.C. 48. The cases cited before us are of five types:

(1) Cases which define the bed of a river. A channel between two high banks may be very wide. Most part of it may be dry with narrow flows only or in the channel there may be isolated depressions covered with water during most part of the year, but during the rainy season the whole of the space may be covered with a mass of flowing water. Ahmadi Begum v. Tarak Nath Ghose (1913) 17 C.W.N. 1173 and possibly Jogendra narain Roy v. Crawford (1905) 32 Cal. 1141 and Hurreehur Mookerjee v. Chundee Churn Dutt (1858) S.D. 644 are cases of this type. The whole channel between the two high banks which are covered with moving water during the rainy season would be regarded as the river bed and the person entitled to fish in the river would have the right to fish in all the waters stagnant or flowing left within these limits of the two high banks during the dry seasons as also in the whole of the moving waters from bank to bank at the time of the floods in the rainy season. (2) Oases where a navigable river changes its course either gradually or suddenly and flows over a new bed which is also navigable. The grantee from the Grown who has the exclusive right to fish in the river would have the same right in the new channel though it may be over the lands of a private proprietor. Tarini Churn Sinha v. Watson & Co. (1890) 17 Cal. 963 and Streenath Roy v. Dinabandhu Sen (1914) 1 A.I.R. P.C. 48 are cases of this type. The last mentioned case settled in favour of the grantee of jalkar rights the conflict of decisions in Bengal when the change in the course of the river was sudden. (3) Oases where the river overflowed its bank at times of flood and formed beels outside its banks. Gopi Nath Rai v. Ram Chunder Turkelunkar 1 Mac. Select Rep 304 and Nub Kishen Roy v. Uchchootenund Gosein (1856) S.D. 878 are cases of this type. The right of the grantee who has the several fishery in the river does not extend to such beels unless they are perennially connected with the river channel. (4) Oases where the river had left its old bed, flowed over a new bed for a time and then shifted again leaving beels or damoshes in its last bed. Krishendro Roy Chowdhury v. Maharanee Surna Moyee 21 W.R. 27, Indu Bhusan Bose v. Saraju Bala Debi : AIR1927Cal741 and Janendra Mohan Bhaduri v. Ranjit Pal (1936) 63 Cal. 351, and possibly Jogendra narain Roy v. Crawford (1905) 32 Cal. 1141, are cases of this type. Three conflicting views have been taken. The first is that grantee having the right to fish in the river would have right to fish in such beels or damoshes (a) if the connexion with the flowing river channel is maintained throughout the year, (b) even if the connexion be only during the floods of the rainy season. The extreme view is expressed in Indu Bhusan Bose v. Saraju Bala Debi : AIR1927Cal741 , that he would not have the right even if the connexion be at all seasons of the year. (5) Oases where the river at the time of changing its course leaves in its original bed beels or sheets of water. Grey v. Anund Mohan (1864) W.R. 108 and Bahaba Prosad v. jagadindra Nath Rai (1906) 33 Cal 15 are of this type. It was held that such a beel must be connected at all seasons of the year with the flowing channel of the river in order to entitle the person having the right to fish in the river the right to fish therein. This type really falls within the fourth type, but we have placed it under a different head because in Indu Bhusan Bose v. Saraju Bala Debi : AIR1927Cal741 such a distinction was made and Bahaba Prosad v. jagadindra Nath Rai (1906) 33 Cal 15 was distinguished on the ground that it was a case of a beel left in the original or first channel, the channel over which the river flowed at the time of the grant of the several fishery.

10. The cases falling within the five types are of no help in the case before us, because the plaintiff does not claim the right to fish in the jalkars in suit on the basis that they were formed either by the overflow of the waters of the river Ganges, or that over their sites the Ganges flowed at some time or other and they are the remnants left of the abandoned river beds of the Ganges or they are to be deemed as part of the present river bed of the Ganges. In our judgment this case would depend upon two questions, namely (1) the nature and extent of the right of the Crown to grant a several fishery to a private individual, and (2) the extent of the grant actually made by it in this case. In England the right of the Crown to make such grants is restricted in a twofold manner. The river must be both tidal and navigable and the grant must be proved or presumed to have been made not later than the reign of King Henry II, for the Magna Charta took away the King's prerogative to make such grants. In India there is no limitation in respect of time and the river need not be tidal. It is enough if it is navigable. This position is now settled by the decision in Streenath Roy v. Dinabandhu Sen (1914) 1 A.I.R. P.C. 48. The further question, namely whether the Crown in India can grant a several fishery to a private individual in non-navigable rivers or in beels and landlocked waters is a question of importance in this case. Whatever may have been the theory of proprietorship of the sovereign power in lands during the Mahomedan times, the English in India started with the assumption

that all the soil belonged in absolute property to the sovereign and that all private property existed by its sufferance. The conquest had made all lands the property of the sovereign and private individuals had to derive proprietary rights in land from the sovereign by virtue of grants made by it.

11. This was the basic idea of the permanent settlement of 1793 according to some authorities. On this basic idea the Government transferred in perpetuity in 1793 and thereafter a vast quantity of land to men who were and are known as zemindars and the property in the soil was formally declared to be vested in those with whom permanent settlements were concluded (Land Laws of Bengal by late Sarada Churn Mitter J., page 30, original edition). In any event the Government proceeded upon the view that it had the sole right to settle lands of whatever description to a private individual which it had not already alienated. This right to make settlements extended to all lands, whether it was firm land or land covered with water. There is in our judgment no principle on the basis of which the prown can be prevented from dividing the rights in land and in making a grant of the right to fish as an incorporeal right, apart from the right to the subjacent soil, in the waters covering the land to one, and either reserving to itself or granting to another the subjacent soil. The case in Kooroona Moye Chowdrain v. Joy Sunker Chowdhury (1864) W.R. 267 affords an illustration of this principle. That was the case of a grant of jalkar right, the right to fish only, in a pergunah. The grant was upheld and it was ruled that such a grant entitled the grantee to fish in all natural water-courses, daras (small non-navigable channels), jheels (long and narrow strips of land-locked water) and beels (ponds) not made by human agency. In Horidas Mal v. Mahomed Jaki (1885) 11 Cal. 434 (F.B.) Garth C.J. with whom Mitter and Tottenham, JJ., concurred, without expressing any opinion on the question as to whether the actual proprietary right in the soil of British India was vested in the Crown or not, observed that the Crown had the power of making settlements or grants for the purpose of revenue of all unsettled and unappropriated lands, and there was no good reason why the Grown should not have the power o making settlements of jalkar rights and of lands covered by water, as of lands not covered by water.

12. Such being the extensive right of the Crown in India we are now to see what in fact was granted to Hoolaus Ohand. (Their Lordships then examined certain documents and proceeded further.) The next document is Ex. 11 (B-45), dehabandi return in respect of pergunah Gangapat Islampore made to the Collector by Pratima Chowdhurani who described herself as zemindar. This document has been printed in a misleading form. The first part up to line 22 of p. 45 is a separate slip in the nature of a docket made by some officer of the Collector whose Persian signature (wrongly printed as Hulas Chand) cannot be deciphered. The succeeding portion beginning from 'Sri Sri Ram' is the return made in the Bengalee language.

13. Mr. Banerjee appearing for the appellants has urged that (1) this document is not admissible in evidence and (2) that at any rate no reliance ought to be placed on it. His argument on the first point is that this is not a return filed in pursuance of Regn. 48 of 1793; and that it can only be admitted in evidence under Section 13, Evidence Act, if it can be proved that the rights of Hoolaus Chand in Gangapat Islampore had then devolved upon Pratima Chaudhurani. He further says that she could not have been the widow of Hoolaus Chand for from another ancient document (Ex. 5, B-75), it appears that Parbati Chowdhurani was Hoolaus Chand's widow. The only basis on which he says that this document was not a return mentioned in Section 25 of Regn. 48 of 1793 is that the document does not contain specification of boundaries. We do not attach much importance to these arguments. As the property was a jalkar mahal such details as would or could be given of a village cannot be expected in the compulsory returns required from zemindars under that Regulation. The identity of the jalkar would ordinarily be furnished by mentioning the names by which they went and the place or local area in which they were located. This has been done in Ex. 11. The fact that the document was filed with the Collector would indicate that it was not a voluntary return. At this distance of time it would be difficult to prove how Pratima Choudhurani became the zemindar or whether she was the widow of Hoolaus Chand or not but the fact remains that she described herself in the return as the zemindar of that mahal and that the return was filed by Kashi Nath Dasa who described himself as naib, that is the principal officer of the zemindar. We accordingly hold that this document is admissible in evidence. It is valuable evidence, for it is a return made by the then proprietor, not voluntary but under an obligation.

14. The second point has been rested by Mr. Banerjee on two grounds. Firstly, he says that the document was introduced into the case in an irregular manner at a very late stage of the case, and, secondly, that the said return was made at a time when there were disputes between the proprietor of Gangapat Islampore and other adjoining proprietors and that the former was obviously creating evidence in his favour for laying claim to what in fact did not belong to him. There is no evidence to that effect in this case, but in support of his last mentioned argument Mr. Banerjee relies only on the findings in Shama Soonduree Debia v. Collector of Maldah (1869) 12 W.R. 164. That is not an inter partes judgment and the findings are accordingly not admissible in evidence Gobinda Narayan Singh v. Sham Lal Singh . This document was not in the list of documents filed by the Secretary of State. His case was closed on 12th July 1935. On that date the defendants called upon him to produce some documents including the dehabandi papers of pergunah Ekbarabad (A 125). On 15th July the Secretary of State produced four documents in Court, one of them being this dehabandi paper of Gangapur Islampore and stated that that had been called for from him by the defendants (A 129). The defendants filed a re-joinder that they had not done so (A 128). The position taken by the Secretary of State was untenable and was so held by the Court: Order No. 125 (A 15).

15. The Secretary of State, however, made an application on 16th July for permission to adduce the said paper in evidence. This was opposed by the defendants but the Court granted him leave to adduce the same in evidence, giving the defendants the opportunity to adduce rebutting evidence. Mohamed Ismail, the record keeper of the Maldah Collectorate was recalled and examined on 17th July. He proved the custody of the document and the document was marked an exhibit. As the genuineness of the document has not been and cannot be questioned and having regard to the fact that the defendants had the opportunity to lead rebutting evidence we do not think that we would be justified in revoking the leave granted by the learned Subordinate Judge and rule the document out. We have already expressed our opinion on the value of the document. This document mentions all the jalkars now in suit as within 'Pergunah Gangapat Islampore. (Their Lordships examined a few more documents and concluded.) The documentary evidence on the record which we have noticed above lead to the conclusion that Pergunah Gangapat Islampore comprises the jalkars now in suit. They have not changed their sites; at least there is no evidence to the contrary.

16. The evidence of possession also points to the same conclusion. In 1838 it was found that all the jalkars in suit except Ganga Prosad were in the possession of the Government. The letter Exa. O and O(1) speak of the Government's dispossession from portions of Gangapat Islampore. They do not show from what parts there was dispossession. The jalkar mehal was an extensive one. The admission made in these letters would not necessarily imply dispossession of Government from any of the jalkars now in suit. We have on the other hand evidence furnished by the kabuliats executed by fishermen which prove that Poresh Nath and his cosharers were in possession of all the jalkars in suit including Ganga Prosad from 1867 to 1882 or so (Exs. 7 to 7(4) series tabulated at B. 101-106). Defendants were admittedly in possession from about 1889 or so, but there is not a single piece of documentary evidence prior to that period to prove their possession. They are very big zamindars having regular zamindary offices and a well kept record room. If they were in possession, kabuliats and collection papers would have been forthcoming. We hold that the jalkars in suit now are parts of Pergunah Gangapat Islampore. This disposes of the main question in the appeal, namely as to the extent of Jalkar Pergunah Gangapat Islampore. Two subordinate points have been urged by the appellants. One relates to Ganga Prosad and the other two Nimajole. They say that even if Ganga Prosad was included in Pergunah Gangapat Islampore it has been lost to its owners from 1836 as it was out of their possession. The kabuliats Ex. 7 series show that Poresh Nath Shaha Choudhury and his cosharers were in possession of Ganga Prosad from 1867 at least up to 1879. Even if they were dispossessed later on, the Secretary of State for India being the purchaser at the sale held on 4th November 1892 for arrears of revenue is entitled to recover possession of the whole estate as created at the Permanent Settlement, and this he can do within 60 years of the said sale by the combined effect of Article 121 and of Article 149, Lim. Act.

17. With regard to Nimajole the contention is that whole of it has dried up. To support this contention, reliance is placed on Ex. J(1) and J(2)(B-86-87). These are two robakarys of the Deputy Collector of the year 1845. Assessment proceedings in respect of 4251 bighas of Nimajole were dropped on the objection of Raja Vidyananda Singha (apparently the same person as Raja Vedanand Singh, with whom Pergunah Ekbarabad was permanently settled in 1819) on the ground that the said area was then dry land. Nimajole is an extensive piece of water and a good portion of it is still covered with water, as the Commissioner's inspection notes would show. We accordingly hold that the learned Subordinate Judge was right in upholding the claim of the Secretary of State for India to the jalkars in suit, except Goaltuli and Laldhubri, the claim to which was abandoned by him. The result is that this appeal is dismissed with costs to the plaintiff-respondent.


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