1. This appeal arises out of a suit for declaration of title to, and recovery of possession of, the lands in dispute, which are alleged to have formed a noabad taluk purchased by the plaintiff at a sale held under the provisions of Act XI of 1859, The defendants did not deny the plaintiff's title to the six plots of land originally claimed in the plaint, but denied his title to the additional plots which were subsequently included in the plaint by way of amendment.
2. The Court of first instance gave a decree to the plaintiff for all the plots. On appeal that decree was reversed and the suit was entirely dismissed, the Court of Appeal below having held that the plaintiff had no cause of action with respect to the six plots as to which the plaintiff's title was not denied. The plaintiff has appealed to this Court.
3. The Court of Appeal below held that the plaint which was amended at a late stage is at variance with the notice served under Section 80 of the Civil Procedure Code upon the defendant No 1 and that either the amendment ought not to have been allowed or the suit should have been dismissed on the ground of the variance between the notice and the plaint.
4. It appears that the two Maghi Survey Dags Nos. 440 and 539, which constituted the taluk were mentioned in the notice but in describing the lands in the plaint, only six cadastral survey plots were mentioned and there was an omission to mention the other plots which, the plaintiff alleged were also included in the said two Maghi Survey Dags constituting the taluk.
5. Having regard to the fact that the Maghi Survey Dags (which it is alleged comprised all the plots) were mentioned in the notice, we do not think that there was such a variance between the notice and the plaint as should lead to the dismissal of the suit.
6. Then as regards the amendment of the plaint it appears that defendants did not raise any objection to the amendment in their additional written statements filed after the amendment or at the trial. Under these circumstances, the defendants must be taken to have waived the objection on the point.
7. The next question for consideration is whether the plaintiff as purchaser of the noabad taluk is entitle to all the lands forming the taluk at its creation or only such lands as were included in it in the year 1898 when, according to the defendants, there was a re-settlement of the taluk It is contended on behalf of the plaintiff that the taluk purchased by him is an estate and not a tenure, and it is a permanent one. It appears, however, that the Government is the proprietor of the lands (it being a khas mahal) and the taluk, therefore, cannot be an estate but is a tenure.
8. As to the question whether the taluk is permanent or not, the Court of first instance found that it is permanent, but that finding has been reversed by the Court of Appeal below. A good deal of argument was addressed to us upon the question. It is unnecessary to consider the precise nature of naobad taluks generally, as we are bound in the present case by the finding arrived at by the Court below upon the evidence that it is not a permanent taluk. The taluk being a tenure and not being a permanent tenure, the plaintiff by his purchase acquired it in the same state in which it was at the time of the last settlement as provided by Section 12 of Bengal Act VII of 1868, although the sale was held under the provisions of Act XI of 1850.
9. It appears that the term of the settlement of the taluk, which was for 30 years and which was subsequently extended to 50 years, terminated in the year 1898, and a fresh settlement was made in that year. It is contended on behalf of the appellant that there was no fresh settlement in the year 1898, but only a fresh assessment or adjustment of rent. But it appears from Exhibit C that not only there was a fresh assessment, but there was an alteration of the area also. The Court of first instance also found that some lands of the original taluk were left out, and some other lands not forming part of the taluk were included in it in order to make up the shortage, although that Court was of opinion that there was no fresh settlement. The Court of Appeal, however, has come to a distinct finding upon the evidence that there was a re-settlement and that a new taluk was created in 1898. That being so, the plaintiff cannot having regard to the provisions of Section 12 of Act VII of 1868, B.C. referred to above, claim anything more than what was included in the taluk as it was at the time of the last settlement in 1898.
10. We do not, however, see any reason why the plaintiff should not get in this suit such of the lands covered by the last settlement as are claimed by him in the present suit. The learned Subordinate Judge says that as the defendants did not deny the plaintiff's title he had no cause of action for six plots originally claimed in the plaint. But the plaintiff gave notice to the defendants claiming the lands of the taluk and it does not appear that the defendants admitted the plaintiff's title at any time before the institution of the suit.
11. The fact that the defendants did not deny the plaintiff's title in their written statement does not show that the plaintiff had no cause of action.
12. The learned Subordinate Judge held that no portion of the lands of the, taluk (as resettled) falls within the compound of the defendant No. 2. In so holding he rejected the measurements made by the Commissioner and the Munsif as unsatisfactory. We are of opinion that the matter has not been properly enquired into by the Court of Appeal below, and that under the circumstances of the case it should have directed a fresh investigation in the matter, when it rejected the Commissioner's measurements and map.
13. We accordingly remand the case to the Court of Appeal below, in order that it may ascertain the lands which constituted the taluk at the last settlement (in the year 1898) and whether any portion of the lands of the taluk so constituted and claimed in this suit falls within the compound of the defendant No. 2 and pass a decree in favour of the plaintiff for such lands as may be found to have been included in the taluk as it was constituted in 1898, as the result of Such enquiry in so far as such lands have been, claimed in the present suit. The claim of the plaintiff in respect of any lands not covered by the last settlement (of 1898 will be disallowed.
14. The appellant must pay 1/3rd of the costs of the defendants in all the Courts up to this stage, and future costs will abide the result.