1. The plaintiffs Nos. 1 to 84 and the plaintiff No. 35 are proprietors of the permanently settled revenue paying estates Nos, 1763 and 1764 respactively on the revenue roll of the Bakarganj C(sic)torate. The plaintiffs Nos. 1 to 34 are also lessees of the estate No. 1764 under a patta from the thirty-fifth plaintiff. The two estates together constitute the Zamindari of Pargana Dakhin Sahabazpur, Estate No. 1763 and the lease-hold are, in the management of a Manager under the Court of Wards and this suit is brought by him on behalf of the plaintiff,? Nos, I to 34 and by the plaintiff No. 35. The subject-matter of this suit are two island churs at present known by the names of Char Botham and Chur Harikishore and certain lands described in schedule A to the plaint. The question is, are these lands re-formations of, the plaintiff's permanently settled estates as the plaintiffs allege, or are the two churs new formations in a navigable river and the; other lands ascretions to the permanently, settled estate assessable to additional revenue. The land settled was, a-j we have said, Pargana Dakhin Sahabazpur. As regards the northern and the southern boundaries of the Pargana there is no dispute. As regards the west, the plaintiffs say that the Pargana was bordered by the Batua River. The respondent says that it was bounded by other settled estates.
2. The question in dispute is, where is the eastern boundary of this parmanently eastern, estate. It is undisputed that the eastern boundary of the settled Pargana was the western bank of the river Sahabazpur. The question is, whether the a western bank of Sahabazpur river as it was at the time of Permanent Settlement and as depicted in Rennell's map forma the eastern boundary of the Pargana. It is both parties' case that the western bank of the Sahabazpur river is the eastern boundary and the point to be decided is, where was that war tern bank at the, time of the Permanent Settlement. We have to deicide whether the lands in suit fall within the boundaries of the estate in respect of which the plaintiffs hays been paying revenue to Government.
3. It is necessary, particularly with reference to the issue of res judicata, to give a short resume of the previous history on the subject, and with reference to the objection that there has been an abatement or remission of the original revenue consequent on the reduction of the area, to give a abort previous history of the Pargana.
4. In the year 1847, two churs, named Bhasan Tezamaddi and Dampier, formed in the Sahabazpur river. In the year 1880-81 there was a Dears Survey and the Deara Superintendent of Surveys took possession of there two islands on behalf of Government. Ha disallowed the respondents' contention that these churs were re-formations on the Rites of their diluviated permanently settled lands and that the sites were dry lands according to Rennell's map of 1764-73 at the time of the Permanent Settlement. He relied on Kelso's map whish was prepared in 1847 48 and held that the churs were new formations on the bed of a navigable river and belonged to Government. The respondents who objected to the decision claimed them as being within their eastern boundary. The decision of the Deara Superintendent was in 1888 and was, as we have said, based upon Kelso's map which he held showed that the lands in question lay outside the boundary of the permanently settled estate. An appeal was made to the Commissioner by the respondents and the Commissioner in his order of the 26th Marsh 1884, after stating that Rennell's map showed that shortly before the Permanent Settlement where the lands had re-formed was part of Sahabazpur and, that subsequent to the Permanent Settlement the Pargana suffered severely from diluvion all along its eastern face as was shown by a comparison of Kelso's and Tasin's map with that of Rennell, expressed his opinion that the lands were clearly re-formations of the appellant's permanently settled estate and reversed the order of the Deara Superintendent assessing them with revenue and ordered the islands to be released. From that decision of the Commissioner, the Government appealed to the Board of Revenue and, in their grounds of appeal, amongst other matters, they alleged that Rennell's map was incorrect and contended that a comparison of Kelso's map with the locality showed that the chur was thrown rip in a big navigable river and was not deluded within the Pargana. The Board of Revenue rejected the appeal of the Government arid referred them to their remedies by a civil suit. On the 6th of October 1893, a Civil Suit (No. 76 of 1893) was filed by Government for declaration of title and possession of Char Dam pier, ft is to be observed that no civil proceedings were taken with respect to the other chur, namely, Bhasan Tazumaddi, and accordingly the plaintiffs in this suit allege that the Government acquiesed in the decision of the Commissioner of Revenue and the Board of Revenue in respect of that chur. That gait was subsequently transferred to another Court and re-numbered as No. 90 of 1895. The Secretary of State in his plaint in that suit alleged that estates Nos. 1763 and 1764 were owned by the defendants in the first paragraph of the plaint mentioned and that together they constituted the Pargana Dakhin Sahabazpur and that a wide channel, an arm of the sea locally known as Dakhin Sahabazpur river, lay to the east of the Pargana Dakhin Sahabazpur and formed the eastern boundary of that Pargana. Then the plaint set forth the proceedings to which we have referred and alleged that the chur was formed in a wide navigable river and was not a reformation on the original site of any lands of Pargana Dekhin Sahabazpur, that the map of Major, Rennell did not represent the state of things existing at the time of the Permanent Settlement that it was drawn on too small a scale to admit of any satisfactory comparison and that there were reasons for holding that it was not accurate. The plaintiff accordingly prayed for a decree declaring that the lands in dispute being an island formation in the bed of a big navigable river belonged to him and that the claim of the defendants that they were re formations in situ was without foundation. The respondents filed a written statement in which they alleged that the disputed chur having formed on the original site of diluviated lands permanently settled with the proprietors of Pargana Dikhin Sahabazpur, the plaintiff had no right, title or interest in such newly formed lands. They contended that, though the map of Major Rennell was prepared some years before the Permanent Settlement, yet in the absence of evidence of change the position of the land and water ought to have been presumed to continue. They alleged that this map had been anted upon by the Government in several instances and, on the basis of that map, the Revenue Authorities had released newly formed lands to private parties and private parties had also in several instances obtained decrees against Government for newly formed lands in the Civil Court on the basis of this map. They denied that it was inaccurate. Then, in paragraph 11, a statement was made which is important upon the issue of abatement of revenue now sought to be railed. Paragraph 11 of the written statement alleged that after the Permanent Settlement the river lying to the east of Pargana Dakhin Sahabazpur gradually encroached upon it and diluviated its land to the extent of nearly eight miles in breadth for which the present Zamindars or their predecessors-in-interest obtained no reduction of revenue and, as the present chur was a, re-formation on the site of the diluviated lands, the plaintiff had no right thereto, This statement that there had been no reduction of revenue was not, we may here observe, contested in the suit, and no issue was raised with reference thereto. The suit was heard by the Subordinate Judge of Barisal who gave his judgment on the 12th of December 1895. A number of issues were raised of which the most important were the 4th and the 5th, namely, 13 M. I. A. 467 : 14 W. R. P. C. 11 : 5 B. L. R. 521 : 2 Suth. P. C. J. 336 : 2 Sar. P. C. J. 594 : 20 E. R. 625. 'Has the land in dispute been formed in a large and navigable river or an arm of the sea existing at the time of the Permanent Settlement?' and (5) 'Whether the land in dispute is a reformation on the original site of the defendants' Pargana Dakhin Sahabazpur and whether it is an accretion to the same?'
5. We shall refer later when dealing with the issue of res judicata to the findings of the Subordinate Judge in that suit. The conclusion, however, to which he came was that Rennell's map should be fallowed and that the eastern boundary of the Pargana as it existed at the time of the Permanent Settlement was shown by that map. He found that the map could be re-laid and that the correct starting point was the south west angle of Fort William. He, however, also found that a portion of Char Dumpier fell beyond that line and was an accretion to the Pargana for which the defendants were liable to pay additional revenue That portion is marked by the letters A, B, C on the map. He accordingly dismissed the suit except as regards the small triangular portion to which we have referred which was declared to lie outside the boundary line of the Pargana and was, therefore, liable to assessment. In the present suit, the same question has some up again with respect to the property now in dispute and the two issues which have been, framed are (5) 'Are the plaintiffs entitled to all lands and churs to the west of the eastern boundary of Pargana Dikhin Sahabazpur as shown in the map annexed to the decree in Suit No. 90 of 1-95?' and (6) 'Is the defendant entitled to dispute the said eastern boundary?'
6. Touching the issue of abatement, the following fasts mint be noted. From an early date the Salt Department occupied lands belonging to the Zamindari. At first the Salt Department appear to have paid Rs. 12,208 (Sicca) for their use and occupation and the Zemindars paid the full revenue of Rs. 57,435 13-4. After that, the sum was not paid but was tailed 'suspended.' That is, it was deducted from the total revenue. The Zamindars paid Rs. 44,413 15 5 only. In other words a bonk transfer was made of the amount due to the Zamindar as rent by the Salt Department. In 1831 the manufacture of salt was discontinued. The Government offered to give bask the lands held by the Salt Department on the Zemindars agreeing to pay in future the sum previously deducted from the revenue payable, in other words, the revenue originally fixed. The respondents did not agree to go back to the old state of affairs alleging that the 'suspension' of jama was allowed not only on account of rent but also in consideration of sundry cases of which the Zemindars had been deprived. They pointed out what appears to be the fait, viz., that a large portion of the lands relinquished by the Salt Department had been resumed by Government and separately assessed. In Exhibit KK Mr. H. Ricketts' (the Commissioner of Chittagong) letter, it is stated that some Salt Mokams bad been wholly washed away. A survey of the lands was made in 1843 by Mr. Kelso to ascertain the extent and locality of the resumed lands, whether lands held by the Salt Department were in possession of the Zamindars and, to quote Mr. Ricketts' letter, 'to ascertain the extent of the Zamindari which pays the reduced jama of Rs. 44,413 15 5.'
7. Mr. Ricketts points out that the Government had resumed lands of the area there stated---the aggregate area of resumptions actually exceeding the area of the estate held by the Zamindars. He states that the assessment of the resumed lands was already Rs. 33,513 and would in a few years equal the sadar jama of the original estate, The jama then paid by the estate was stated to be Rs. 44,4 3 on 102,095 acres culturable. This, he observes, was a high jama for an estate settled in perpetuity, especially when it was considered that mush of the land was held by Talukdar under the Zamindars at a very low rate. The Collector had proposed that the question of re-imposition of the suspended Rs. 13,621 should be adjusted by composition on the terms mentioned in the letter which it is not necessary to recapitulate. Mr. Ricketts, however, states that these terms were not acceptable to the Zamindars who represented that the jama then paid (Rs. 44, 413) was a heavy burden on the lands remaining to them and that to re-impose the suspended jam t without restoring all the privileges they possessed previous to the introduction of the salt manufacture would be unjust. He points out that the Zamindari could show that the Government had by means of 35 resumption suits separately resumed 151,862 acres assessed at Rs.33,513, that portion of the land resumed was certainly the land held by the Salt Department, that some Salt Mokams had been destroyed by diluvion, and that the land whish then comprised their Zamindari was not in extent and produce disproportionate to the lama already paid, namely, Rs. 44,43. On the whole, he concluded as follows: 'Assuredly, the long array of resumptions would induce a bias in favour of the Zamindars and I by no means feel so assured of our equitable right to re-impose the suspended jama as to recommend that the extreme measures of re-imposition and sale by Court of the estate for arrears should be reported to.' He recomended, therefore, as an alternative, that all intentions of re-imposing the suspended Rs. 13,021-13-11 should be abandoned. After this, on the 11th September 1850, the Revenue Secretary to the Government of Bengal wrote to the Sadar Board of Revenue stating that the plea of the Zemindars again a 1 re imposition of the sum deducted on account of the salt manufacture had been proved to a great extent to the satisfaction of Mr. Ricketts and that, 'taking into consideration the great extent of the resumptions that have been made in this estate and the vast increase of actual jama derived therefrom, His Honour is pleased, in accordance with the recommendation of Mr. Ricketts, to authorize the abandonment of the suspended amount and the proposed reduction in the sadar jama of the estate.' We may here observe that it would seem that from the year 1802, if not from 1793, the actual amount of revenue which had been paid by the Zamindars was the sum of Rs. 44,413.15 5 pies, which represents the sadar jama as originally fixed lees the deduction made on amount of occupation of land by the Salt Department. From this letter it would seem clear that the Mason for a reduction of the revenue paid by the estate was that a portion of the estate had been resumed by Government.
8. A preliminary objection was taken in the written statement on the ground that the Manager of the Court of Wards had no power to bring a nit for khas possession in an attached estate. This objection, we may observe at the outset, is relevant only be far as the plaintiffs Nos. 1 to 34 are concerned who are described as 'Wards of Court by the General Manager, Court of Wards.' It does not apply to the 35th plaintiff. But it is contended that if the objection is good against the Court of Wards representing the plaintiffs Nos. 1 to 34 the suit fails as regards the plaintiff No. 35 also on the ground that the plaintiffs Nos. 1 to 34 are subordinate holders under him and that he has no present right to sue. The facts as regards this are that the District Judge exercised the jurisdiction vested in him under the Bengal Tenancy Act and acted under the provisions of Section 95 A of that Act which provides in Section 97 that 'in any case in which the Court of Wards undertakes under Section 95 the management of an estate or tenure, so much of the provisions of the Court of Wards Act as relates to the management of immoveable property shall apply to the management' In the case of the appointment of a Manager by the District Judge under Section 95, Section 98 contains the provisions applicable to the Manager and, amongst other such provisions, the Manager has 'the same powers as the co-owners jointly might but for his appointment have exercised.' The contention on behalf of the appellant is that the word management' in Section 97 relates to Part VI of the Court of Wards Act which is so entitled, and that that part of the Act does not give powers for the institution of a suit. There is no reference in Section 97 to Part VI of the Court of Wards Act, but the argument is based on the fact that Part VI of the Court of Wards Act deals with management and on the contention that that part contains the whole of the powers of management which are conferred in the case of the Court of Wards taking over a property under the provisions of Section 95 (a) of the Bengal Tenancy Act. It is argued on behalf of the respondents that, though it cannot be said that the plaintiffs are disqualified proprietors, the case must be treated in the same way as if they were such and that, under the provisions: of Section 97 of the Bengal Tenancy Act, it is not merely Chapter VI of the Court of Wards Act which is made applicable but all sections of the said Act which have any reference to management and there are provisions relating to management which are not included in that part; that the effect of taking over a property by the Court of Wards is to prevent , the proprietor from managing it; that it is not the intention of the Legislature that the Court of Wards managing; a property which has been made over to it under the provisions of Section 95 (a) of the Bengal Tenancy Act should have any less powers than a Manager appointed by the judge under the provisions of Section 98 of the Bengal Tenancy Act, and that, as in a case which comes directly under the provisions of the Court of Wards Act, the Manager has the power of suit, it must reasonably be held that the same power of suit exists as a part of the general management in the case where the management of an estate has been made over to it under the provisions of Section 95 A of the Bengal Tenancy Act.
9. It must, we think, be taken to be a reasonable interpretation that when the Bengal Tenancy Act gives the District Judge the power to direct that an estate be managed by the Court of Wards in gush case that body bas the same powers as it has in regard to other estates directly coming within the provisions' of the Court of Wards Act. In the latter case, there would be a power of suit in the Court of Wards. Should we say then that, because an estate comes to the Court of Wards not directly but through the mechanism of the Bengal Tenancy Act, the manager has no such power P As regards the manager appointed under Section 95 (6), it has been held that he is competent to one to recover possession of land: Sibo Sundari v. Rai Mohun S. C. W. N. 214. In our opinion there is no ground or reason for holding this and at the same time holding that there is no power bf suit in the case of an estate taken under Section 95 (a). We are of ooinion that Section 97 gives the Court of Wards power to sue in the one of an estate which comes to it under the provisions of Section 95 (a) of the Bengal Tenancy Act. It is argued that under Section 95 (a) the estate to be managed is that which is handed over and was handed over before the churn in suit formed. But the word 'estate' there means we think all that the holder is entitled to by way of re formation or accretion. The lands which ware handed over to the Manager were the whole estate in which subsequently the lands in suit are said to have reformed. If there had been no dispute between the parties as to the title to these lands, it could not, we think, be contended that the Court of Wards had no power to take steps to manage these lands as churs which had formed within the ambits of the estate made over, to their management. It is not contested that where an estate directly comes to the Court of Wards, it has power to sue, and this appears to us to be part of its powers of management. In our opinion, it has the same power when the estate comes to it indirectly through the mechanism of the Bengal Tenancy Act. Possibly, the Legislature in enacting Section 97 of the Bengal Tenancy Act intended to draw a distinction between the management of the property of the co-owners and the care of their person?. It is admitted that there ii no decision to the contrary effect and we hold, therefore, that this objection fails.
10. Passing from this preliminary objection we will deal, first, with the contention that there has been an abatement or reduction of revenue in respect of the estate and that, therefore, the plaintiffs must show not merely what were their lands at the time of tae Permanent Settlement but that the lands in suit are re-formations of lands of which they have been paying revenue since such alleged abatement. No such case was made in the written statement, though the materials upon which it is based were in the possession of the Government. It was put forward for the first time after the evidence had been closed on both sides. The learned Judge refused at that stage and under the circumstances of the case to allow this issue to be raised. He, however, permitted the defendant to argue the point on the plaintiff's evidence and held that there had been in fast no abatement. It is objected that the Court should have allowed the issue. For the purpose of this judgment we may assume (without so deciding) that the Court should have allowed the issue to be raised. It is, however, a different question whether the appellant is entitled to a remand to obtain evidence on this point. Dr. Dwarka Nath Matter who appeared for the Government in the lower Court and before us admitted that he did not ask to give evidence on this issue in the lower Court and that he was then willing to have the point determined on the record as it then stood. Before us, however, the learned Advocate General asks for a remand. But it is quite clear that he has not in mind any definite evidence, which is known and can be produced. He stated that he wished to have an opportunity to examine the resumption records in order to see how matters stood as regards the lands resumed and whether they or any other lands had diluviated. He spoke of 'being in the dark' as regards these matters. It; is obvious that, whilst it might have been a matter of doubt whether when a particular piece of evidence was put forward as available, the Court should allow a remand seeing that no evidence was offered in the lower Court, it is also clear that such a remand should not be allowed at the present time after so long a trial merely for the purpose of making an enquiry whether there is any evidence to be produced. The judgment was given in November 1918, and, if there were any evidence, steps should have been taken meanwhile to ascertain what it was. Had the appellant then come to Court and said: 'Here is the evidence I want to prove. I ask for a remand in order that I may prove it,' there would at least have been a matter for consideration, Bat here all the evidence that than may be is in the Government's possession and has been so all along. Notwithstanding that the point was not taken in the pleadings till after the close of the evidence and since then nothing has been apparently done to ascertain the fasts. It is, to our minds, quite clear that no remand should be allowed and we refuse the same. We will, for the purpose of this judgment, (and without so deciding), assume that the objection may be raised notwithstanding that it was not taken until after all the evidence had been given and the case closed, and will consider the question on the evidence as it is now before us. The fasts of this question of abatement have been already fully stated. If an abatement were established, then undoubtedly the plaintiffs would have to show that the land in suit was not merely a re-formation of the lands settled with them in 1793 but of lands other than those in respect of whish abatement was made and of lands for whish they have been and are now paying revenue. It has been contented by the appellant that there had been an abatement of some Rs. 13,000, that is, that the revenue is paid at the rate of Rs. 44,413-15-5 instead of Rs. 57,465-13-4 and that this abatement was allowed not only as regards the lands resumed but in respect of diluviated lands also. For the respondents it is argued that they never asked for an abatement and that all that happened was that they refused to absent to the arrangement proposed by the Government as set out in Mr. Ricketts' letter whish we have mentioned and that it mast in consequence be assumed that the state of things as it existed prior thereto continued op till the present date, namely, that the revenue was Rs. 57,485 Rs. 4, a deduction being made in respect of lands taken possession of by Government and whish the respondents refused to take bask on the terms offered to them by Mr. Ricketts. It is further contended that abatement is only evidence of relinquishment of lands and that there has been none, There was, it is said, no request to deduct or agreement to deduct. For the Grown it is argued that, after this length of time, it must be taken that, though the respondents may have refused to accept Mr. Ricketts' offer, there has been an acquiesence in the Government resolution allowing a deduction of revenue.
11. It is not necessary to decide whether there has been an abatement of revenue or not because in this case we may assume (without deciding it) that there has been such an abatement without such conclusion affecting the decree whish the plaintiffs have got, for, we are of opinion that, as is clearly shown by the letter from the Secretary to the Bengal Government to the Board of Revenue, tie alleged abatement was given, as was expressly stated, not in respect of any diluviation but in respect of resumption of lands, though it is a fact that the diluviation was mentioned in Mr. Ricketts' letter. The lands so resumed in respect of which the alleged abatement was given are shown to the west of Kelso's line. It is suggested that there may have been some diluviated land to the east of Kelso's line whish had been lost previous to the making of his map. This hypothesis seems to be unfounded on the facts, for, if abatement had been given for diluvion as well as resumption that would have been stated in the final order of the Government of Bengal. The letter to the Board doss not so state but explicitly says that the abatement was given for the resumed lands. If this be so, as we find it to be, it is immaterial whether there were any diluviations. What it important and relevant is to ascertain the position of the resumed lands in respect of which, according to the letter we have mentioned, a reduction of revenue it alleged to have been given. These laid s are shown to the west of Kelso's line and as the lands in suit are to the east of that line and to the west of the line of Rennell's map whish (as later held) shows the eastern boundary of the Pargana, it follows that the lands in suit cannot be the lands in respect of whish abatement, if there was any, was allowed, but are, if Rennell's line be the true eastern boundary, re formations of land for whish the plaintiffs have paid and are paying revenue. The question then whether there was or was not an abatement is in this view of the case immaterial, Whether Rennell's line is the eastern boundary of the Pargana depends on our finding as to whether the preceding decision of 1895 on this point is res judicata, and, if not, whether the lice of Rennell should be accepted as established on the evidence given in this suit.
12. Passing to the issue as to res judicata it is the case that the subject-matter of the suits is different but the identity of the property in the two suits is not necessary. What is contended is that the eastern boundary in 1793 of the Pargana in which the lands formerly and now in suit were and are is the eastern boundary as shown in Rennell's map. It is not contended that there is a ret judicata upon the question whether Rennell's map was correctly laid in the map in the former suit all along the eastern boundary, that is, beyond Chur Dampier. A distinction must be drawn between the question whether the eastern boundary is that depicted in Rennell's map and whether that map was correctly laid in the previous suit beyond the actual boundary then in question. The eastern boundary had to be ascertained before it could be found whether Chur Dampier was in the Pargana or not. It was necessary to decide the eastern boundary of the Pargana in the previous suit and the same has been found, it is said, to be necessary in the present case on the issue dealing with the merit?, the bulk of the evidence dealing with the question whether Rennell's or Kelso's map should betaken to depict the eastern boundary. We think this contention is sound as also the argument that even if it were not necessary (which we think it was) the question of the eastern boundary was submitted for decision and decided. We have in the statement of facts fully set out those which bear on this point. It is the case that there was no formal issue as to the eastern boundary of the Pargana but the whole history of the proceedings prior to the suit of 1895, the pleadings in that suit, the judgment and decree show that the question which was agitated between the parties was whether the eastern boundary of the Pargana was the line of Rennell or of Kelso. This was the groundwork of the judgment. In the latter it was stated that it was necessary for the purpose of the issues to find out what was the state of things at the time of the Permanent Settlement, that is, whether the spot on which Chur Dampier formed was land or water at the time of the Permanent Settlement. Haw was the Judge (we refer to the particular circumstances of this case) to arrive at this conclusion but by ascertaining the eastern boundary of the Pargana P The judgment further stated as follows:---'Both parties ask the Court to presume that the eastern boundary of Pargana Dakhin Sahabazpur as found in the maps upon which they respectively rely (that is Rennell and Kelso) existed at the time of the Permanent Settlement. It was also stated that at the request of the plaintiff and with the consent of the defendant the Amin was directed not to go to the spot but to draw the lines of the several map on the cadastral survey map so that the limits of Pargana Dakhin Sahabazpur may be easily ascertained,' His report refers to the line of the Sahabazpur river according to the maps prepared by Rennell and Kelso and the testing of the correctness of Rennell's map. The Judge then fully examined the question whether Rennell's or Kelso's map should be accepted and the conclusion was 'Rennell's map should be but guide in deciding the dispute.' The decree, of course, is given directly only as regards the lands then in dispute but reference is there made to the boundary of Pargana Dakhin Sahabazpur. As regards this decision there was no appeal. From the order sheet it appears that in the petition of the defendant a map of the disputed land was directed to be kept with the record as part of the decree. In our opinion the only way whereby either in the past or present suit it was or is possible to decide whether the property in suit belongs to one party or the other is by settling the eastern boundary.
13. And, clearly, the eastern boundary could not be settled until the Judge had determined which boundary line he should accept that of Rennell's or that of Kelso's. Until this point had been determined not an inch of the boundary line could be ascertained.
14. The Subordinate Judge has held that from the extracts of the former judgment the finding of what was the eastern boundary of the Pargana---whether according to Rennell or Kelso---was the very first necessary step: then that line had to be relaid; and the third step was to ascertain the position of the land then in dispute in order to find out what portion of it, if any, was the Pargana land and what portion was navigable river at the time of the Permanant Settlement. He holds that the determination of whether Rennell's map shows the eastern boundary of the Pargana at the Permanent Settlement was really the foundation or the groundwork of the former judgment. In his opinion, it was impossible to find nut the boundary line of Char Dampier without, first of all, determining whether Rennell's or Kelso's was the eastern boundary of the Pargana at the Permanent Settlement: that was the only means of finding this out; the eastern boundary had long been washed away and there was no landmark either in Cher Dampier or else where from which it could be ascertained and that in short, if the finding that Rennell's western boundary was the eastern boundary of the Pargana at the time of the Permanent Settlement is eliminated from the judgment, there is nothing to sustain it. He accordingly finds that the decision of the former suit as regards the eastern boundary is res judicata and that that boundary was shown by Rennell's map. With this eon-elusion we agree.
15. It is further contended and denied that the question of abatement is res judicata; that is, the Government cannot raise the question that there has been an abatement of revenue, seeing that in the Suit of 1895 it was expressly alleged by the respondents and not denied by the Secretary of State that the lands had been held without deduction of revenue. The question, therefore, it is said, is constructive ret judicata. This raises several questions of difficulty. It is not, however, necessary to decide them because, even if this question of abatement is not res judicata as the appellant contends and even if there had been an abatement of rent in fast as he also contends, the question is not of practical importance seeing that the lands in respect of which abatement is alleged to have been given are, in our opinion, resumed lands shown in Kelso's map and these lie to the west of his line with the result that the lands in suit cannot be reformations of lands in respect of which the plaintiffs have been allowed the alleged abatement.
16. Assuming, then, that the eastern boundary of the Pargana is shown by Rennell's line, a question is raised whether Rennell's map was correctly plotted is the former suit. Is the Suit of 1895, the Amin prepared a map. In that suit, the Court deputed the Amin to compare Rennell's map, Kelso's map and others on the spot; but, at the request of the plaintiff, namely, the Government, and with the consent of the defendant's Vakil, the Amin was directed not to go to the spot but to draw the lines of the several maps (one of which was Rennell's) on the Cadastral Survey map so that the limits of the Pargana Sahabazpur might be easily ascertained. The Amin accordingly prepared a map allowing the limits, amongst others, according to Rennell. The learned Subordinate Judge has pointed out that this map was prepared in the presence of the representatives of the parties and was signed by the Kanungo deputed by the Government for the purpose. When this map was filed in Court, neither party objected that it was incorrect in any respect. The suit was disposed of accepting the map as correct and the whole line of Rennell was, without objection on the part of the Government, demareated upon the map annexed to the decree. In the plaint in the present suit reference is made in paragraph 13 to Rennell's map as being correctly drawn and in paragraph 22 it is alleged not only that the map was accurate, that is, represented the eastern line of the Pargana but that it had been correctly plotted in the previous Suit of 1895. Now, the Government in their written statement, whilst denying that Rennell's map was accurate, did not deny the allegation that, whether accurate or not, it had been correctly plotted in the suit of 1805. Then, the 5th issue raised in this suit is: 'Are the plaintiffs entitled to all lands and churs to the west of the eastern boundary of Pargana Dakhin Sahabazpur as shown in the map annexed to the decree in Suit No. 90 of 1895?' The form of this issue, as the learned Subordinate Judge has pointed out, also indicates that up to the time when the issues were framed the defense did not dispute the correct plotting of the eastern boundary. No objection, he says, was taken to the form of this issue when the issues were recon(sic)cedered and a new issue was framed at the beginning of the trial. The question of the plotting of the map is further discussed in Order No. 104 of the order-sheet dated the 9th September 1918 where the arguments of both parties have been given. We agree with the learned Subordinate Judge who has held that thin is not a mere matter of evidence but is an essential and material fact touching the title. He has held that the correctness of the plotting must be taken to be admitted by the defence, though at the trial an attempt was made to dispute it, It is true, as we have paid, that the accuracy of Rennell's map was contested but not the question whether it was correctly plotted and we think that the argument raised in the suit on behalf of the Grown and also repeated before us that Rennell's map was incorrect implies also that it was incorrectly plotted is not sound, for, the two matters are entirely different. We are of opinion that there is no ground for reversing the judgment of the Subordinate Judge upon this point. We would add further that if there were any substance in this contention, one would have expected that the Government would have, during the two years which have elapsed since the date of the decree, had a map prepared which would have shown whether or not Rennell's map had been correctly plotted or been prepared to show by expert evidence that it could not be repaid. This could have been produced or slated and the Court might have been asked to allow evidence to be given to prove what the map be prepared showed or the evidence would prove. We do not say that such an application would necessarily have been, successful but, at day rate, it would have made the position of the appellant, stronger than it now is; for, he is asking for a remand upon a fact which the learned Judge has held must be taken to have been admitted and he is not even now in a position to show to us by a map prepared by an expert in what respect the previous plotting was erroneous. As it is thus established that the line of Rennell is the eastern boundary of the Pargana by virtue of the previous decision in the Suit of 1895 and as it must be taken slat that boundary was correctly plotted in the map in the Suit of 1895, and as it is an admitted fact that the lands in suit lie to the west of that eastern boundary and to the east of Kelso's line, it follows that the lands in suit must be taken to be re-formations of land in respect of which the plaintiffs have been and are now paying Government in venue.
17. These findings dispose of the at peal bet having regard to the fact that possibly our judgment may be the subject of appeal we propose to deal also with the issue of the eastern boundary as a question of fact independent of the findings in the previous suit which we have held to be res judicata.
18. The preceding portion of the judgment was delivered on the 23rd May 1921, to which date the case was adjourned in order that we might determine whether we should go into the facts of the case in the event of its being found that the issue as to the eastern boundary was res judicata. On that day and about a month after, the appeal was first opened, a new objection was taken to the suit by the learned Advocate-General on the ground that as regards a portion of its subject matter it was barred by a special law of limitation, namely, Section 24 of Regulation 11 of 1819. The portion of the suit said to be barred is that for land other than the two it laud churs taken possession of by Government to which a period of twelve years is applicable and as regards which, therefore, no question of limitation arises. In paragraph No 18 of the plaint it is stated that the proprietors appealed to the Board of Revenue and the Board by its order dated the 9th March 1915 confirmed the proceedings of the Collector and rejected the appeal. Paragraph No. 3 A of the written statement runs as follows.
19. 'The suit id barred by limitation.' In the issues framed on the 1st November 1917, the fourth issue is: 'Is the suit barred by limitation?' New issues were framed on the 9th January 1917 and those issues did not contain any issue raising the ground of limitation. It is suggested on behalf of the appellant that this was doe to the absence of the Government Pleader, a suggestion which it is said is supported by Order No. 13, in the order sheet, dated the 10th January 1917. However this may be, new issues were Fettled in lien of those framed on the 1st November 1916; and amongst those issues there is co issue raising the ground if limitation. Now, when the bearing of the appeal is well through it is argued that the suit is hatred as regards the land, other than the two island chum, because it was not brought within one year of the date of the communication of the Board's order. The order of the Board is dated the 9th March 1915. It is alleged to have been communication to the respondents on the 12th April 1915 and the suit was brought more than a year after that; date, that is, on the 17th May 1915. For it has been held that in the sane of a Bait alleged to be barred under a special law of limitation, the party is not entitled to deduct, as the plaintiffs have attempted to do in this ease, the period of two months for service of notice under Section 80 of the Civil Procedure Code. This ground, as we have stated, is raided for the first time almost at the conclusion of the litigation. It is necessary that limitation should be pleaded in all cases. Bat particularly this is so where the bar is alleged under some special law. The general rule, we think, is that points of limitation should not be allowed to be raised for the first time in appeal where they involve a decision upon questions of fast, In this case a question of fact is involved, namely, whether or not the Board's order was communicated, if so, on what date and whether the persons who are alleged by Government to have received notice were authorised agents if the respondents for that purpose. In our opinion this objection which is not contained in the grounds of appeal should not be allowed to be taken at this stage, it is said that the fast that the case is barred sufficiently appears without necessity for remand on the evidence, though that evidence was not given on this issue. We do not thick that points of limitation should be decided against the parties unless attention has been drawn to the question of limitation and an opportunity given them to meet it on the evidence. Even if the objection could be taken, the evidence is not sufficient to support it. The evidence upon which the appellant relies is to be found in the record of the Deara Settlement proceedings from which it appears that notices were served on one Nabin Chandra Grab a an am mukhtear on behalf of Ananda Chandra Roy on the Ilea April 1915 and on Shyama Charan Chakravarty, Manager of the Court of Wards estate on the 12th April 19 5 Beyond these facts no others are given bearing upon this question of limitation, They are obviously insufficient. In ere wan, for instanes, no proof of the signatures of Nabin Chandra Guha or S. C. Chakravarty and it is cot shown that the receipts which these persons are said to have signed are for a letter communicating notice of the Board's decision. Possibly this may be t ha fact, but we' cannot, where limitation has not been pleaded and where no issue has been raised, make any assumptions. If. limitation is urged as bar, the facts on which it is barred must be proved after an issue has been framed. As stated, there is no question as regards the two island churs to which admittedly limitation for the period of twelve years applies. The objection fails. Under the circumstances, it is not necessary to consider whether, if the point could? be taken, Section 21 of the Regulation has applicability to the present case.
20. We proceed now to determine on the facts and irrespective of the decision in the suit of 1894 what was the line of the eastern boundary of the plaintiffs' property at the time of the Permanent Settlement which includes the question whether Rennell's map may betaken as showing this. The question before us in its most simple form is this. The plaintiffs, have a permanently settled estate. There is no dispute as to the northern and southern boundaries and only in a secondary way as to the west. Far, according to the plaintiffs, the western boundary at the time of the Permanent Settlement was water-according to the appellant it was dry land' The primary question is as to eastern boundary, it is admitted that the western burk of river Sahabazaur was the eastern boundary of the respondents' estate The question teen is, what was the position of the river in 1789, the date of the Decennial Settlement for the Permanent Settlement of 1793 is based upon the prior one. If the lands m suit are on the west of the river, they fail within the plaintiff's estate. The plaintiff contends that this is shown by Rennell's map, if it is to be accepted as admissible and accurate.
21. The onus is of course, on the plaintiffs though once they have started their case so as to sufficiently raise an inference in their favour they may (as in fact they do) rely on the fact that evidence which if it is in the possession of any one in the possession of the Government, is not produced.
22. The onus is sought to be discharged by means of Rennell's map and some Settlement reports and books of reference The case in the main rests on the map. Bat we will first deal with objections taken to the reports.
23. The Settlement Reports are, it is argued, not evidence, and reliance is placed upon the decision in Garuradhwoja Prasad v. Superundhwaja Prasad 23 A. 37 at pp. 48, 49: 10 M. L. J. 267 : 5 C. W. N. 33 : 27 I. A. 238 : 2 Bom. L. R. 831 : 7 Sar. P. C. J. 724 (P.C.). As regards Mr. Beveridge's history of the District of Bakarganj, it was not referred to in the lower Court, and its use here is objected to on this ground. The mere fact that the book was not referred to, might not be, of itself, a good objection. If, how ever, the book was used to establish the existence of fasts which the appellant had no opportunity of meeting and which he desired to rebut, the admission of the book now might involve a remand. Accordingly, the claim to refer to this history was not pressed. As regards the Settlement Report', it is to be observed that the appellants' map (AA) was prepared (according to the evidence) on reference to Mr. Jack's Calendar. The case to which reference has been made 'does not support the exclusion of the reports here referred to and we think that they are evidence. If evidence, the appellant desires to make use of them. As stated, the respondent does claim the support of other evidence, but even if he did not the question whether the map is sufficient must depend on the facts of the particular case. Here they are peculiar in that the whole case is bound up in the decision of the eastern boundary of the estate and that eastern boundary is a river the position of which was one of the purposes of Rennell's map to locate. So that when we know that the eastern boundary of the permanently settled estate was the western bank of the river and when we know what the position of that river was at the date of the Permanent Settlement we are in a position to decide the issue before us.
24. For the appellant it is next contended that the onus cannot be discharged by conclusions drawn from, practically, the map alone.
25. Major Rennell, the Director of Survey, made his celebrated maps between the years 1754 and 1773. It is stated that the map which is used in this case was made sometime after 1707. There is no need to discuss the value of Rennell's map in respect of boundaries, location of villages and the like. Here Rennell's map is used for the purpose of ascertaining the position of a river. Whatever else may have been the purpose of their preparation that purpose undoubtedly included the delineation of roads and waterways, and, so their Lordships of the Privy, Council in Haradas Achariya v. Secretary of State 43 Ind. Cas. 361 : 26 C. L. J. 590 : 22 M. L. T. 438; (1918) M. W. N. 28 : 20 Bom. L. R. 49 (P. C.), adopted the position of the river therein question as shown in Rennell's map.
26. Rennell's map, however, was not contemporaneous with the Permanent Settlement. It was made some 22 years or so before the Decennial Settlement on which the Permanent Settlement proceeded. On this ground, therefore, the appellants object that it cannot le evidence of a state of things a considerable number of years after its date. If they are right on this then the suit on the facts must fail for the only evidence is Rennell's map. There is no contemporaneous map and subsequent maps are no evidence of the previously existing state of things. The respondents in reply invoke the presumption of continuity. This is a presumption which varies with the circumstances of the case and is applicable to things which are continuous in their nature. If they are that, then the Court may presume that they continue in the state in which they were last known in the absence of evidence to the contrary. It may be said (as it is in fact argued here) that a river such as the Meghna is not continuous in its nature but continually variable. Reliance is placed in this connection on the observations in the order of Mr. Strong, the Collector, in a proceeding under Section 76 of Act IX of 1847 that the Island Dakhin Sahabazpur is notoriously subject to diluvion and alluvion and that in the period which elapsed between Rennell's Survey and the Permanent Settlement half the Island might have been diluviated and have re-formed id the shape of new inland churs. And in the order of the Board of Revenue it is stated that: Bennett's survey was made more than 20 years before the Decennial Settlement and in a tract such as ibis, which is situated on the Bakarganj littoral and is subject to violent fluvial and tidal action it furnishes no safe indication of the actual position of Mouzahs at the time of the Decennial Settlement.' In the judgment in the 1895 suit, the learned Judge stated, that from time immemorial the Meghna has been continually diluviating its right bank along the eastern boundary of, Dakhin Sahabazpur Pargana and that a considerable portion of it is now under water.'
27. In a petition filed by the manager of the Court of Wards to the Deputy Collector it is stated that the petitioner was surprised and alarmed that the Revenue Authorities were making attempts to assess all the lands outside the Revenue Survey lines although up till then it had been admitted by the Government that a considerable portion of the Zamindaris Nos. 1763 and 1764 permanently settled in 1793 had been washed away by the Dakhin Sahabazpur river before the Revenue Survey was made. With the exception of the last-mentioned petition the other statements are strictly not evidence in, the case on this point. As regards the judgment in the 1895 suit it is either res judicata as we have held, in which case the present question need not any longer be discussed, or if it was not res judicata the observations of the learned Judge are not evidence. No attempt was made in the lower Court to sail evidence on the subject of the variability of this river. We have, however, the fast that resumption proceedings did take place in the years 1840 to 1847, with reference to diluvions referred to in Mr. Rickett's letter dated the 30th November 1848. Further, there are the proceedings as regards Hassan Tajuddin and Dampier Churs.
28. The respondents admitted that there was diluviation on the east of the Pargana, after the date of the Permanent, Settlement and some changes on the western side of the Paragana prior to that date. On the other band, it is submitted that, so far as the evidence before us shows, no claim was made or proceedings taken as a conseguence of changes in the river prior to the resumptions commenced in 1840 and continued until 1847 after which in the year I48, survey of such resumptions was ordered Part of the land was in possession of the Salt Department, and if there had been loss of land by fluvial nation the Salt Department might have claimed an abatement of rent; but they did not do so. Moreover, it is said that if there be any evidence of what occurred between the date of Rennell's map and the Permanent Settlement, such evidence must be in the possession of Government but it has not been produced and that, therefore, we are entitled to assume that Rennell's map in a sufficient and sub-stantial way indicate the position of things at the date of the Permanent Settlement.
29. The question is one which is not without difficulty. The facts establish that between the date of Rennell's map and the Permanent Settlement there were considerable changes on the western side of the Pargana in the form of silting up. In fact, such silting Up is relied on by the respondents to explain certain facts which the appellants put forward to show the inaccuracy of Rennell's map. It is also common ground that there has been extensive diluvion on the east after the date of the Permanent Settlement if we are to consider both these facts it may be argued that they dispose of any presumption of continuity. Bat the question here is a narrower one, namely, the position of the eastern boundary line. Are we to presume that that remained unchanged from the date of Rennell's map until that of the Permanent Settlement? The only evidence on this point is as to a period subsequent to the Permanent Settlement. In the absence of any evidence to the contrary as to the state of affairs bet been the dale of Rennell's map and the Permanent Settlement, we think we should assume that on the eastern side Bennett's map may be taken to represent the state of things there at the time of the Permanent Settlement. In fact it seems established that it is since that time that a strong drift of the river towards the west with diluvion of the eastern boundary has been observed. Whether Rennell's map is otherwise good evidence and accurate is of Bourse another question with which we deal later. All that we now hold on this point is that the map is not excluded on the ground that it is not contemporanecus with the Permanent Settlement because, as regards the eastern side of the Pargana, with which we are almost directly concerned, the state of things appearing in Rennell's map may be deemed to have continued until the Permanent Settlement. Whilst it appears to be the fast that changes did meanwhile take place on the western side this is not inconsistent with the eastern boundary having remained daring the same period substantially unchanged. There is perhaps the leas change of error in this case that is of giving the plaintiffs more land than that to which they are entitled became it is admitted that the river has been diluviacing his estate on the east since the Permanent Settlement, and as to the anterior period as to the date, of Rennell's map either we must assume that things remained as they ware, or if not it is natural to suppose that the admitted and eons ant nature of the diluvion after the Permanent Settlement is an index of the nature of the diluvion in the anterior period mentioned. If, then, we may refer to Rennell's map as evidence, there is a presumption of its accuracy under Section 83 of the Evidence Act in respect of such matters as to which it is admissible evidence. Under that section the Court shall presume that maps or plans purporting to be made by the authority of Government were so made, and are accurate.' It is thus not necessary to refer to or to rely upon statements made in this suit or in the Suit of 1895 as to the value, and, therefore, accuracy of Rennell's maps for the purposes for which they ware, prepared, namely, amongst others, the delineation of rivers and other waterways. It is for the appellant in this case to rebut the presumption of accuracy of the map in relation to the fasts of this particular case, and this he has, in fast, attempted to do.
30. It is for the plaintiffs to show that Rennell's map is admissible in evidence of the state of things at the Permanent battlement. But if this is done, it will be assumed to be accurate unless the contrary is shown by the respondents. Before dealing with his criticism on the accuracy of Rennell's map we will first refer to another matter.
31. An objection was taken that the map on which the Amin worked in the previous case as Rennell's map has not been produced and that it is not shown to be Rennell's map. There does not appear to be any ground of appeal on this head. Paragraph 60 of the memorandum of appeal to which we have been referred, deals with another matter, namely, 'that id decree Should have been granted to the plaintiffs on the basis of Rennell's map alone seeing that Rennell's map was never compared with local conditions and never checked by measurement in the locality by any surveyor whether of experience or otherwise.' That is not the point raised by this objection. The point here is that the map (Exhibit No. 23) is inadmissible, and indeed irrelevant, because it has not been shown that it was made with reference to Renell's map. It is true that objection was taken to the admission of this map in the lower Court but not on the ground which is here urged. No such ground can, in our opinion, be urged now; for if such objection had been taken in the lower Court, the plaintiffs might have met it by re-plotting the boundaries with reference to a copy of Rennell's map as to which there could be no dispute. It is true that the plaintiffs contended that the correctness of the plotting in the previous suit was admitted and should not be gone into again. But if the objection had been taken then, which is taken before us now, to the admission of the map (Exhibit 23) and such objection had been decided against the plaintiffs, then the plaintiffs might have asked to re plot the boundaries with reference to some admitted copy of Rennell's map. Moreover, the admission that the plotting in the previous unit was correct, assumes that Exhibit No, 23 which shows such plotting, was made with reference to Rennell's map. Otherwise, the plotting would not be correct. In fact, this objection is only another form of that with which we have already dealt, vie., the correctness of the plotting of Rennell's line in the map of the previous suit. The Amin also says that he was given a copy of Rennell's map, There does, not appear, therefore, to be any substance in the contention that the Amin in the previous suit proceeded upon the basis of come map other than Rennell's or that, at any rate, it had not been shown that the map on which he did proceed was Rennell's map. We hold that the Amin did work with reference to Rennell's map.
32. We next deal with the grounds which have been put forward to rebut the presumption of accuracy of Rennell's map assuming it to be admissible.
33. The appellant contends, in the first place, that Rennell nude a mistake of some 5 feet 45 inches in the longitude of Fort William Semaphore Station, Calcutta, the starting point of his survey, and hence argues that the map as re-laid by the Amin in 1895 must be some 6 miles too far to the east. It is, however, quite immaterial in the present maps whether Rennell did or did not know the correct longitude of the Semaphore Station for Rennell has taken the Semaphore Station as zero and has calculated his longitudes from the Semaphore Station treating the station as zero. If we want to discover the longitude of any point on Rennell's map when referred to Greenwich all we have to do is to add the correct longitude of the Semaphore Station, to the longitude given by Rennell's.
34. What the Amin did was to enlarge Rennell's map to the same stale as the survey map.
35. He then superimposed the map on the Survey Map. This is quite easy as he knew what was the correct longitude of Rennell's starting, point.
36. The main difficulty in re laying Rennell's map has been the determination of The starting point. This has been determined by the Survey Department to be Semaphore Station.
37. It is quite easy to find the corresponding longitude of any place given in Rennell's map on the survey map by adding to the longitude of the plane on Rennell's map the correct longitude of the Semaphore Station. The Amin who re-laid the map knew the correct longitude of the Semaphore Station as given in the survey map. What was important and absolutely necessary was to know the point from which Rennell started and the longitude of the point. It is immaterial once the point has been discovered that Rennell gave it an incorrect longitude for Rennell treated it as his zero. Rennell's error in the longitude of his starting point (the Semaphore Station) would only ha of importance in determining what the starting point was.
38. Secondly, the appellants contend that Rennell himself never surveyed the island of Dakhin Sahabazpur but that it was surveyed by Richie. His contention is based on the fact that no mention is made of the survey of Dakhin Sahabazpur in Rennell's diary and also on the opinion of Major Hirst. But we have only got Rennell's diary up to 1767. It is possible that either he discontinued writing his diary or it has been lost, for his survey was continued up to 1773.
39. Moreover, it is really immaterial whether Rennell or Richie made the survey, for the presumption of accuracy under Section 83 arises from the fact that the maps are made under the orders of Government and not that they were made by Rennell. Further, Rennell apparently supervised and corrected Richie's work.
40. We pass to Dr. Mitter's third argument to show that Rennell's map is inaccurate.
41. Rennell's map shows the western boundary of Dakhin Sahabazpur to be water. If we re-lay Rennell's map on the present survey map we shall find that the western boundary is dry land and that there ate permanently settled estates to the west of Dakhin Sahabazpur and immediately contiguous to it. These permanently settled estates must have been, therefore, part bf the original island of Dakhin Sahabazpur at the time of the Permanent Settlement. Therefore, the island of Sahabazpur must be placed further to the west so that the western boundary coincides with what is the western boundary of the island of Sahabazpur. Rennell had placed the island too far to the east.
42. The respondent contends, on the other hand, that the island was correctly placed by Rennell. That there are a number of islands shown by Rennell on west of Dakhin Sahabazpur and that by accretion these islands have been joined together and now form solid land contiguous to Dakhin Sahabazpur island and the river Betua which is the western boundary of Dakhin Sahabazpur has been growing smaller and smaller through silting up. He shows from Kelso's maps that even is 1840 the Betua was a big river perhaps two or three miles broad while now it is a narrow stream. That all the lands immediately to the west of the Betua as it now is are new formations since the time of Rennell and that they were not permanently settled estate at the time of the Permanent Settlement. Even if at the time of the Permanent Settlement the western boundary of Pargana Sahabazpur was dry land that would not prove it was dry land when Rennell made his survey. The appellant, to show that the western boundary of the Pargana at the time of the Permanent Settlement was land and not water contends that two permanently settled estates were then actually contiguous to Dakhin Sahabazpur, viz., North Sahabazpur and Kristodaspur.
43. To prove that these two estates North Sahabazpur and Kristodaspur were contiguous to South Sahabazpur at the time of the Permanent Settlement he has relied on certain quinquennial returns filed by the Zamindar in 1802 which give, according to him, the list of the Kismats, etc., which formed the permanently settled estate in 1793 and more specially on the entries of Kismats Deguti, Gurmani and Kathali to show that North Sahabazpur was contiguous in 1793.
44. The eastern boundary of one of these, viz., of Chur Gurmani, alone is given as Dakhin Sahabazpur. The importance of the others is to show the position of Chur Gurmani. This Gurmani is shown as a Chur and no revenue is assessed on it.
45. But this evidence does not put the case very high. At the highest, it would show that the Zamindar of North Sahabazpur claimed in 1802 as part of their permanently settled estate this Chur Gurmani. It would not prove necessarily that Chur Gurmani was in existence in 1793. That would only be proved by the papers of 1793. In 9 years many chart may have formed or disappeared.
46. Moreover even assuming that Chur Gurmani was in existence in 1793 and so that there was dry land contiguous to South Sahabazpur on its western boundary, that would not prove that Rennell in 1767 had not depicted correctly the then state of affairs. It is quite possible that sub sequent to Rennell's Survey the islands Shown by him on the west of Dakhin Sahabazpur became joined up together and joined up with Dakhin Sahabzpur. Thus it is quite possible that at the time of the Permanent Settlement the western boundary of Dakhin Sahabzpur was no longer water but land. Bit there is nothing to show how mush was water and how mush land. Chur Garmani might be merely a small chur which temporarily connected Dakhin Sahabazpur with other estates That obviously would not of itself show that Rennell had incorrectly placed the island of Sahabazpur in 1757 or that the eastern boundary of the island hid changed between the time that Rennell depicted it and the Permanent Settlement. We are not entitled to assume that because land has formed on the western boundary between Rennell's survey and the Permanent Settlement that land had diluvated from the eastern boundary. The same arguments apply to Court Pata, Bedarulla, Subhi and Khalifa which plaintiffs included in their estate of Dekhin Sahabazpur at the time of the Permanent Settlement and which the appellant alleges are we it of Rennell's line. They are possibly accretion to the island and may well have formed between Rennell's Survey and the Permanent Settlement.
47. A glance at the map would show that most of the land west of Rennell's western line is chur. Soma lands which appear to be of a more or leas permanent nature correspond roughly with some of Rennell's islands which fast would go to show the correctness of his survey.
48. The appellant then argues that certain four Churs Sihpur, Bedar, Madaphar and Sibsankar were resumed by Government in 1840, that these churs lie well to the west of, the present line which the plaintiff claims as his boundary and so the appellant argues that the plaintiff by that admitted that the boundary line was Kelso's line. He would seam to contend that the plaintiff knew then where the boundary line really was as witnesses who had been alive at the time of the Permanent Settlement were then available.
49. It appears that in two cases Madaphar and Sibsankar the plaintiff did appeal to the Commissioner unsuccessfully. In the other two oases he did not contest them. No suit was brought to set aside the decision.
50. Bat the conduct of the plaintiff proves little or nothing. It may well be that he had no material at his command then to prove where the boundary was. As far as can be seen Rennell's map, were not discovered till many years later. Moreover, these lands apparently formed part of the land that had been in the occupation of the Salt Department. It is quite possible that the Zemindar did not think it worth while to spend any money fighting the point with Government. Then it is to be remembered that, with regard to these resumed lands as they were galled and revenue payable, the Zemindar wag in communication with the Revenue Authorities and withheld payment of the Bum of Rs. 13,000 formerly debited to the Salt department with the result that the Government took action as stated in the letter of Mr. Rickett by subsequent correspondence to which we have referred. At this distance of time it is not possible to determine exactly what were the facts. We do not think that those above stated san be construed into an admission by the Zemindar that he knew quite well that the boundary line lay to the west of these churs. Furthermore, it must be remembered that until the decision of the Privy Council in the case of Lopez v. Muddun Mohun Thakoor 13 M. I. A. 467 : 14 W. R. P. C. 11 : 5 B. L. R. 521 : 2 Suth. P. C. J. 336 : 2 Sar. P. C. J. 594 : 20 E. R. 625, it bad always been held that land reformed in situ belongs net to the Zemindar but the Government. It was Lopez's case 13 M. I. A. 467 : 14 W. R. P. C. 11 : 5 B. L. R. 521 : 2 Suth. P. C. J. 336 : 2 Sar. P. C. J. 594 : 20 E. R. 625, which set the point at rest.
51. Fifthly, the appellant has contended that certain villages, for instance, Colya, Govindapur, Mendigunge, are shown in Rennell's map and are now found to be at some miles distance. This we do not think is of much importance. In the first place, the object of Rennell's Survey was not the villages but the rivers and waterways, and he would not be very particular as to the exact site of the villages, Secondly, the villages from the nature of the country often shift. Thirdly, these villages are often long straggling villages and it is not possible to say what part of the village Rennell took for the dot which represents the village.
52. To sum up, we do not think that the appellant has succeeded in proving that Rennell's map incorrectly depicted the position of the island of Dakhin Sahabazpur in 1767 or that in 1763 there was any change in the eastern boundary of the island from what it was in 1767.
53. We are of opinion that the appellant has not established sufficient grounds for a reversal of the decision now under appeal and We accordingly dismiss his appeal with costs.