1. Touzi No. 523 of the Murshidabad Collectorate, which comprised pergunah Goas, was permanently settled in 1793 on the basis of the decennial settlement of 1789. It consisted of twelve huddas, each hudda being sub-divided into several tarafs of collection of villages. We are in this appeal concerned with village Udaynagore in taraf Udaynagore which is in hudda Ikuri. In 1799 Raja Debi Singh purchased the said touzi or zemindary at a sale for recovery of arrears of revenue. The zemindary ultimately devolved by succession on his descendant Raja Gopal Singh, Krishna Chandra Singh and Earn Chandra Singh. At a partition in or about the year 1830, Earn Chandra Singh got in his eight annas odd share six out of the twelve huddas, including hudda Ikuri. On 8th April 1836 he granted patni taluks of two mehals, to one Radhabullav Mukho-padhya (ex. 6 b(1), B 148). The first mehal, which comprised taraf Udaynagore with. some exceptions, was let out at an annual patni rent of Rs. 1852-0-11 (sicca = = Rs. 1975-8-1 in company's coin) and the second mehal called Hat Jelangi at an annual patni rent of Rs. 1201 (sicca - Rs. 1281-1-0 in company's coin). Radhabullav Mukhopadhya sold his patni interest on 22nd November 1839 to John & Robert Watson (Messrs. Robert Watson & Co.) (Ex.7-B 144). Robert Watson & Co. in turn sold the same along with other -properties to Messrs. Robert Watson & Co. Ltd., on 20th May 1890 (Ex. 27, B 272.) The latter conveyed the same to one Crawford on 29th November 1902 (Ex. 27 (a), B 379) who in turn sold the same to the Midnapore Zemindary Co. Ltd., the plaintiff in the suit, on 3rd December 1906 (Ex. 27 (b), B 408). The zemindary interest in the aforesaid six huddas of touzi No. 523 devolved in the following, manner. From Ram Chandra Singh it passed to Robert Watson, James Dalrymple and John Watson Laidley and then to James Dalrymple and John Watson Laidley (Ex. 26, c 838). The successors-in-interest of James Dalrymple and John Watson Laidley sold the same to Rai Bishunchand and Rai Budh Singh Dhudhuria, the predecessors of the contesting defendants, on 22nd June 1893 (Ex. 27 (c); B 285). For the purpose of deciding some of the controversies we will have to consider in some detail some of the aforesaid conveyances. In 1850-54 there was a. revenue survey of villages Udaynagore and the other adjoining villages. The revenue survey map is Ex. 28 (19) (Map No. 22, M (1).) The position of the following river Padma is shown in that map. In 1867-68 the revenue authorities again surveyed the locality and prepared a map, Ex. 28 (12) (Map No. 15 M (1) ). This map and other maps prepared at this survey will hereafter be called the Diara maps of 1867-68 and the proceedings for assessment of revenue based on the said survey of 1867-68 as the Diara proceedings of 1869.
2. The Diara maps of 1867-68 indicated that a good portion of what had been shown in the revenue survey of 1850-54 to be dry lands and appertaining to touzi No. 523 had gone under the river bed, and a large block of land had emerged out of bed of the river as it flowed in 1850-54, the river having since then moved further east at the place. Proceedings were accordingly taken by the Government to assess to revenue what appeared to be 'added lands' on a comparison of the diara survey of 1867-68 with revenue survey maps of 1850-54. Objections were filed by Messrs. Robert Watson & Co., as patnidars and by Sreenarayan and Hari-mohan Bagchis, patnidars of two other mouzas, Poreshpore and Ramnarayanpore also appertaining to touzi No. 523. It is unnecessary to detail the nature of those objections which mainly related to the correctness of the boundaries between the different mouzas of the said estate as laid down by the Diara survey amin. Those objections were considered by the Survey Deputy Collector, Mr. Bhagaban Chandra Sen, who recorded his findings in his Robokari of 26th August 1869 (Ex. F; B 191). He gave effect to some of the objections, and directed sketch maps to be prepared of the lands which had been found by him to be an increase of area to the mouzas of touzi No. 523 by the action of the river. He further directed, if the Superintendent of Survey agreed with his views, those maps to be sent to the survey office for calculating the areas.
3. This was done and in the thakbust statement, which has embodied the modifications made in the said robokary, the details about the increase and the decrease of area of the several mouzas on account of fluvial action since the revenue survey of 1850-54 are noted (Ex.P; B 158-163; Ex.P 5; B164-183). The diluvion was to the extent of 21,087 bighas, 8 cottas, 14 chittaks in villages Atarpara, Chowmadia, Temada, Udaynagore Diara (villages appertaining to taraf Udaynagore) and other villages. Ex.L(1); P2009-2011 and what was treated as accretion came up to 28,388 bighas, 7 cottas, 10 chittaks. Out of this area, an area of 22,111 bighas 19 cottas was treated as accretion to mouza Udaynagore as shown in the revenue survey map of 1850-54 (Ex.28(19) map No. 22 m(i)) and marked therein as 'Oodaynagore 378'. We will hereafter call this Udaynagore either as revenue survey Udaynagore or asli Udaynagore and the aforesaid area of 22,111 bighas, 19 cottas which was treated by the Diara Officers as accretion either as char Udaynagore or Udaynagore, chak No. 1, the latter being the designation given to it in the Diara survey map, Ex.28(l2) (Map No. 15 M (1)). The said area of 28,388 bighas, 7 cottas, 10 chittaks was assessed to a revenue of Rs. 3177-10-0 (ex. l(2); F2014-2018) from the year 1870. It was formed into a touzi No. 512 of the Murshidabad Collectorate, and settled permanently with James Dalrymple and John Watson Laidley under the provisions of Act 9 of 1847, (Ex.M(1), kabuliat dated 16th August 1870; B197-200).
4. We may however point out, though the matter is not of great importance, that the whole of the area, which was treated by the Diara Officers as accretion to asli Udaynagore on the basis of the revenue survey map of 1850-54 was not so, for a good slice of land on the eastern portion of Udaynagore, chak No. 1 represented the reformation in situ of the western portion of villages Atarpara, Chowmadia and Temadia as depicted in the revenue survey maps of 1850-1854. This is made dear by Mr. R. C. Sen's, map (Ex. 28 (25), map No. 28 M (1)) where the position of the revenue survey river of 1850-54 of the diara survey river of 1867-68 and the limits of Udaynagore chak No. 1, which was included in touzi No. 512, are shown, James Dalrymple and John Watson Laidley obtained on their application an abatement of revenue to the extent of Rs. 4030-2-3 on account of diluvion of the aforesaid area of land of 21,087 odd bighas (Ex. L (1); F 2009 and Ex. L (3) F 2010). In 1915-16 the survey and settlement proceedings under ohap.10, Ben. Ten. Act, were commenced and the Records of Rights were finally published, some in 1920 and some in 1921. The lands which were found as accreted lands in the Diara proceedings of 1869 and which were then above water were recorded under touzi No. 512 and the plaintiffs-appellants re-corded as being in possession as patnidar under the principal defendants-respondents, the Dhudhurias. Just after the final publication of the Record of Rights, probably in the season 1921-22, the lands in suit together with other lands emerged out of the river. Some time after their formation, proceedings under Section 145, Criminal P. C, were started on 6th May 1926 with Raja Bejoy Singh Dhudhuria (one of the defendants' predecessor-in-interest) as first party and the Midnapore Zemindary Co. Ltd., as the second party.
5. The subject-matter of those proceedings was a block of 5000 bighas of land marked with the letters ka, kha, ga, gha, uma, cha and chha in a map prepared by Mr. O'Donel in the season 1924-25 (ex.13,C 604). This map is a part of the plaint and has been printed in the volume which we have marked as M. Those proceedings terminated in favour of the first party, the Raja, on 12th September 1927, (Ex.12; C 617). On 8th September 1928, the Midnapore Zemindary Co., Ltd., filed the suit against Raja Bejoy Singh Dhudhuria and his cosharers and their tenants for recovery of possession of the said block of 5000 bighas of land on declaration of its patni right and for mesne profits. The said block of land occupies a portion of the bed of the flowing river Padma as at the time of the revenue survey of the year 1850-54. The Subordinate Judge by his judgment and decree dated 23rd October 1933 has dismissed the suit. The Midnapore Zemindary Co., Ltd., have accordingly filed this appeal.
6. As, in our judgment, the learned Subordinate Judge has gone beyond the pleadings and has dismissed the plaintiff's case on a defence not taken in the written statement and, as the learned advocate for the appellants made persistent attempts to go beyond the ease made in the plaint, it is necessary here to summarise the cases of the parties as made in the pleadings. Three cases are made in the plaint. The first is that the lands in suit are reformations in situ of village Udaynagore as it had been permanently settled in 1793 along with the other villages of the 12 huddas of pergunnah Goas. This case which is definitely made in para. 21 of the plaint is rested on the broad foundation laid in the preceding paragraphs of the plaint. Therein it is stated that touzi No. 523, the permanently settled estate, comprised twelve huddas which comprised several compact blocks of land called tarafs, each taraf being made up of several coterminous villages, para. 2. Taraf Udaynagore in hudda Ikuri was a taraf which included co-terminous villages, Udaynagore, Temadia, Chow-madia, etc., para. 6, from before the permanent settlement, para. 8. At the time of the Decennial Settlement and Permanent Settlement the flowing river Padma was not within touzi No. 523 at all (para. 4) but some time before the revenue survey of 1850-54, the river came inside the touzi, passed through the villages of taraf Udaynagore and separated them on both its banks, para. 8. Soon thereafter the river Padma receded and large tracts of land reformed in situ of the villages Udaynagore, etc. Those lands were assessed to revenue by the Diara authorities in 1867-68 on an erroneous view of law and formed into a separate estate. Touzi No. 512 thus illegally and erroneously created was settled with the then proprietors of touzi No. 523. In fact the whole of touzi. No. 512 represented the reformations in situ of the lands of touzi No. 523.
7. The second case made in the plaint is the case of estoppel that the principal defendants cannot say that the lands of touzi No. 512 are not the reformed lands of touzi No. 523 or question the patni right of the plaintiff over the so called lands of touzi No. 512. This plea is taken in paras. 13 and 14 of the plaint, though not in the precise form in which estoppel ought to be pleaded. The third case is an alternative case pleaded in para. 24. The plaintiff company claims the right to recover khas possession on the ground that the lands of touzi No. 512 were accretions to the lands of touzi No. 523, meaning thereby that portion of touzi No. 523 in which it had patni rights. As we read the plaint it is not the plaintiff's case that the flowing river Padma was within the ambit of touzi No. 528 and that its bed had been assessed to revenue and so included in the said touzi at the time of the Decennial and Permanent settlements. The reference to assessment of revenue made in the last part of para. 4, cannot, in view of what has been stated before and after, in our judgment, be construed to mean assessment to revenue and inclusion of the bed of flowing river Padma, which was a big public navigable river, within the zamindary, touzi No. 528. The property in the river bed of such: a river is in the Crown, and it would require more specific pleading to raise such a case. The word 'damosh' means a beel or inland pool of shallow water being a part of the deserted bed of a river, the words 'Koha Padma' mean the bank of the river and the words, etc. which follow the phrase cannot, in view of the preceding sentence of the said paragraph, include the bed of a! large flowing navigable river.
8. In their written statement the contesting defendants deny all the material allegations in the plaint on which the case of reformation in situ of the lands of touzi No. 523 had been rested. They deny the fact that taraf Udaynagore at the time of the Decennial and Permanent settlements consisted of co-terminous villages and that the flowing river Padma was outside touzi No. 523. They further state that the lands in suit were outside the said estate, being then in the bed of the flowing river Padma. They further aver that they are not estopped from asserting that touzi No. 512 represented accreted lands or from questioning the plaintiff's patni. right in the lands in suit. They however admit that the lands of touzi No. 512 were accretions to touzi No. 528 but attempt to meet the plaintiff's alternative case based on the right of accretion by the defence set out in para. 10, a defence which we will have to consider in detail when dealing with the merits. In para. 21 they state that the plaintiff did not purchase the patni right, if any, in the lands of touzi No. 512, which were entirely distinct and separate from the lands of touzi No. 523. By an application for amendment of the written statement made on 12th May 1930 and granted on 31st May 1930 (O.No. 34, A-8), para. 10 of the original written statement as also some other paragraphs were amended. An additional defence was also taken, namely of adverse possession. In this state of the pleadings we can at once state that the learned Subordinate Judge was not right in dismissing from consideration the plaintiff's case of accretion on the footing that the lands which were formed into touzi No. 512 in 1869 had risen in the river bed as an island chur with unfordable channels all round. Similarly during the course of the hearing before us we stopped the learned advocate of the appellant from urging in an alternative form that the flowing river Padma was inside touzi No. 523 at the time of the Decennial and Permanent settlements and that its bed had been assessed to revenue and so made a part of touzi No. 523, on the ground that not only such a case has not been made in the plaint but that it is a case inconsistent with and contradictory to the case made therein.
9. We would now proceed to consider the arguments advanced before us and record our findings thereon. To establish his case that the lands in suit are reformations in situ of asli Udaynagore, Mr. Sen Gupta, the learned advocate for the appellant, has addressed us on three main lines. He says, first, that the villages of taraf Udaynagore formed a compact block of land at the time of the Decennial and Permanent settlements. The revenue survey river of 1850-54 as shown in the revenue survey map (ex. 28 (19) Map 22 M (1)), which shows some villages of the said taraf, namely Udaynagore Diara, Rarmnarayanpur and Udaynagore on the western bank of the river and the remaining villages, namely Atarpara, Chowmadia and Temadia on the eastern bank, was not there at the Decennial or Permanent settlement. To support this contention he relies upon: (a) the meaning of the word taraf; (b) the area of taraf Udaynagore as given in the Kokbabandi (Ex. 1, .B 8) and the area thereof at the time of the revenue survey of the year 1850-54, (c) some entries in the dastur rewaz (ex. 2 to 2 (9); B 52 to 110), (d) the terms of the patni potta of 8th April 1836 (ex. 6 (b) 1; B 148), (e) some the entries in the mahalwari register (Ex. 25; C 750-83G), and (f) the judgment of Morris and Prinsep JJ. in 1880 (Ex. 12 (4) B 260).
10. The second line of argument is directed to show that either the river Padma was entirely outside perganah Goas, that is outside touzi No. 523, at the time of the Decennial and Permanent Settlements, or, if that was not so, the block of land in dispute was firm land then, being a portion of the island of Nipara as shown in Rennel's and Cole-brook's map.
11. To support this contention he relies upon: (a) Rennel's map of 1780 (Ex.Z, Map 50 M (2), (b) Colebrook's map of 1790-97 (Ex. 28 (1), Map 4 M (1), (c) a passage at p. 297, Vol. II of the fifth report on the affairs of the Bast India Company (Reprint in 1917 by E. Cambray p. 337 of the original edition); a passage at p. 21, vol. viii of Hunter's Statistical Accounts of Bengal on the judgment, of Morris and Prinsepp JJ. of the year 1880 (ex. 12 (4), B 260) and on the Map 2 M (1), which was made a part of that judgment, (d) the plaints in the two suits brought respectively by the patnidars of Sagarpara and the mukarari mourasidars of chak Mathuranath against Robert Watson & Co. (ex. 16; B. 244, Ex. A (a) B 248) and the judgment passed in the last mentioned suit (ex. Y, B 250), (e) admissions made by the contesting defendants and their predecessors-in-interest and (f) the Record of Rights prepared and published under Chap. 10, Ben. Ten. Act in 1920 and 1921. In dealing with this part of the case, Mr. Sen Gupta attempted to explain away the robakary of Mr. Bhagban Chandra Sen of 1869 and the act of James Dalrymple and John Watson Laidley in accepting the settlement of touzi No. 512 from, the Government on the footing that it was an accreted estate. The last line of argument is based on the fact of long possession as patnidars by Robert Watson & Co. and their successors-in-interest of the lands which were designated by touzi No. 512.
12. Mr. Sen Gupta contends that the word taraf signifies a collection of co-terminous villages, villages forming a compact block of land. There is nothing to support him. The word means a sub-division of a pergunah including several villages. This is the meaning given in Wilson's Glossary, p. 511 and is the meaning adopted by the Judicial Committee in Rani Hemanta Kumari Debi v. Secretary of State ('06) 3 CLJ 560. A pergunah which usually covers a very large tract and means a large local division of the Mahomedan times, which corresponds in idea, though not in extent, with a district of modern times, does not convey the idea of a compact area of land with no public and navigable river cutting through it. Moreover, in the province of Bengal in many cases such a river cuts through a pergunah. The idea of compactness is not conveyed by the word pergunah and so necessarily not by the word taraf, which is only a sub-division of a pergunah.
13. We do not accordingly see any force or substance in Mr. Sen Gupta's argument. (His Lordship discussed the evidence relating to whether the suit lands were reformations in situ of touzi No. 523 and proceeded.) At one stage of the argument Mr. Sen Gupta referred to the boundaries of taraf Udaynagore as given in the dastur rewaz (B-105-107) and submitted that the entries in the last column indicated that there was no river there. Section 7, fifth of Regulation v of 1816 casts the duty upon the kanungo to compile informations regarding the local boundaries of estates and pergunahs in the district of Katak and Pataspore. Regulation 1 of 1819 authorized the appointment of kanungos throughout the province of Bengal. By Regulation 2 of 1817 the reform of the officer of patwaris was made. Section 16 required them to keep registers and accounts relating to villages and to deliver such accounts to the kamingo every six months. The dastur rewass filed in this case seems to be the statement of account, village by village, furnished by the patwaris to the kanungos. It does not seem clear whether a kanungo or a patwari was required to note the existence of a public river when such a river did not form the boundary either of an estate, pergunah, taraf or village, but went through them. The non-mention of [the river in the remark column, which was only meant to contain a description of the [boundaries, does not necessarily lead to the [Conclusion that the river Padma was not within taraf Udaynagore. It moreover appears to us that the boundaries of Udaynagore as given at B-105-107 cannot be satisfactorily interpreted. The boundary marks mentioned therein can be traced in Smart's map of pergunah Goas prepared in 1853-54 (EX. 28 (43)-Map 46 m (2)). But then according to the dastur rewaz, taraf Udaynagore would occupy the place which looks like South Africa, a position which would be far away, about 10 miles to the south-west of its actual site. It would further appear from the boundaries of taraf Ikuri, which is admittedly to the north and west of taraf Udaynagore that the river Bara Padma (flowing river Padma) was partly on its eastern and partly on its southern boundary. Having regard to relative position of the two tarafs and the case of the appellant that the two tarafs formed also a compact block of land the conclusion would be that the said river was then flowing through taraf Udaynagore (we read as Mr. Sen Gupta suggests the words 'to the west' as 'to the west of' etc.). When we pointed out these things to Mr. Sen Gupta in the course of his argument he admitted that from the entries of the dastur rewaz he cannot say that in 1819-20 the flowing river was not inside taraf Udaynagore. The terms of the patni potta of 8th April 1836 (ex. 6(b) 1; B-148) do not in our judgment support the contentions of Mr. Sen Gupta. Taraf Udaynagore, as we have already pointed out does not signify a compact block of land not intersected by a river. The villages making up the said taraf were known and a grant of the said taraf would only mean a grant of the said villages. In such document the express mention of the river Padma would not be necessary or required. So from the mere non-mention of the river we cannot safely infer that the river was not in the taraf. On the other hand, the mention of and inclusion in the grant of two ferry ghats would indicate that the flowing river was there. It would only help Mr. Sen Gupta if the ferry ghat of Atarpara was on the eastern limits of the said village. If it was on its western limits the river must have been flowing in between Atarpara on the east and the other villages of taraf Udaynagore on the west. Everything indicates that before 1850-54 the river was not so far to the east as to the quite outside of and to the east of village Atarpara. This document is accordingly of no help to Mr. Sen Gupta. (His Lordship further discussed the evidence relating to whether the suit lands were reformations in situ of lands of touzi No. 523 and proceeded.)
14. A reference was made by Mr. Sen Gupta to Rennel's map and Colebrook's map (Ex. Z-Map NO. 50 M (2); EX. 28 (1) Map NO. 4): He contends that the disputed lands were in the island of Nipara as shown therein. He first submitted that the village Surdah is a fixed village which has not undergone any change in site. It has brickbuilt ancient buildings which are still there. (District Gazeteer of Rajshahi, page 185.) The village Harisanker in the south is also a fixed place. For showing this he relies upon the findings of the Judicial Committee of the Privy Council in Naresh Narayan Roy v. Secretary of State ('23) 28 CWN 453 (PC), at p. 456. That is not an inter partes judgment and so that finding cannot be evidence in this case. But assuming that Harisanker is a village that has never undergone any change in site, the appellant's case on the point is not advanced. What he wishes us to do is to superimpose by reference to Harisanker and Surdah, Kennel's and Colebrooke's map on Smart's map of 1853, which practically agrees with the revenue survey map of 1850-54 (Map No. 46). Harisanker is not shown in Smart's map but he asks us to put it on Smart's map by measuring the distance from Surdah and from Jellanghy. He even goes to the length of saying that it would serve his purpose if we superimpose the maps by reference to Surdah only keeping in with the north line. We cannot allow him at this stage to proceed in the fashion. If his case was that the disputed land was a part of the island of Nipara he ought to have asked for a local investigation in the lower Court and to have the relay done by a Commissioner from a satisfactorily established fitting point. When we indicated this view in the course of the argument his reply was that as there were admissions, for instance in Ex.11 (G-l), by the defendants that the lands of touzi No. 512 were reformations in situ of the lands of touzi No. 523, he was relieved of the duty of applying for local investigation and for having the relay done by an expert and it was for his opponent to do so. We do not think that this is the correct position. The plaintiff company is not relieved of producing the best materials in support of its case, as no admission had been made by the defendants either in their written statement or at the hearing : Section 58, Evidence Act. For the purpose of super-imposition copies of the relevant maps have been made in this Court on the same scale. Their superimposition from Surdah would however indicate that a good portion of the disputed land may fall within the island of Nipara, as shown in Kennel's map but the major portion would fall outside that island as shown in Colebrooke's map.
15. We are however of opinion that it would not be safe to come to a conclusion in favour of the appellant on such a comparison. The former map has been prepared on a small scale. In both only the village sites are shown, and then only approximately. For instance the relative positions of Surdah and Jellanghy are different in the two maps. Mahuddypore is shown at different places in the two maps. The extent of the villages are not shown. Whether in view of these factors even a relay of these maps by an expert Commissioner would not have afforded a safe and sure criterion, we are unable to say, but if the appellant company wished to rely on the maps for the purpose of determining with the maximum degree of precision the exact position of the 1789-1793 river in relation to the disputed land it was for it to have enlisted the services of an expert. We accordingly cannot hold that the disputed land was within the island of Nipara as depected in these maps. We are however of opinion that the position of the river at this part in 1793 can, by this method of rough comparison, be determined with sufficient accuracy for us to say that it was not substantially different from its position at the time of the revenue survey in 1850-1854. (His Lordship resumed discussion of appellants' evidence that suit lands were reformations in situ and proceeded.) On the basis of the Diara Survey of 1867, the lands in suit together with other lands were held as accretions to the lands of touzi No. 523. A new touzi was formed and assessed to revenue. James Dairymple and John Watson Laidley who were also partners of Robert Watson & Co., took a permanent settlement of the said touzi on the footing that it was accretion. From the very beginning the lands which formed touzi No. 512 were thus treated not as reformation in situ but as accretions to touzi No. 523.
16. The appellant seeks to explain away the effect of the Diara proceedings of 1869 by saying that the lands were treated in fact as reformation in situ of the lands of touzi No. 523, but on an erroneous 'view of the law then prevailing were held by the Diara authorities to be accretions or 'added lands,' for the law of reformation in situ was only correctly formulated and properly under-stood after the judgment delivered in 1870 in Lopez v. Muddun Mohun Thakoor ('70) 13 MIA 467. The contrary view held the field up to 1870 as is apparent from the Full Bench decision in Katteermonee Dossee v. Ranee Manmohinee Dabee (1865) 3 WR 51 and from the observations of the Judicial Committee in Secretary of State v. Krishnamoni Gupta ('02) 29 IA 104 at p. 117 which implies that Lopez v. Muddun Mohun Thakoor ('70) 13 MIA 467 brought about a change in the view of the law on the subject. There is however nothing to showthat Mr. Bhagaban Chandra Sen proceeded upon that footing (Ex. F-B 191). The kabuliat (Ex.M (1)-B 197) executed by James Dalrymple and John Watson Laidley is sought to be explained on the basis that at that time it was thought that a proprietor was liable to pay additional revenue for the lands which were found on comparison of the revenue survey map and the Diara map to have been inside the river as depicted in the former, though they may have been lands actually included at the Permanent Settlement of 1793. For the purpose of showing what was understood as the law up to 1886, reference was made to Sarat Sundary v. Secy. of State ('85) 11 Cal 784 and to the Full Bench decision in Fahamidannissa Begum v. Secretary of State ('87)14 Cal 67 (FB) affirmed in Secretary of State v. Fahamidannissa Begum ('90) 17 IA 40 (PC), which overruled Sarat Sundary v. Secy. of State ('85) 11 Cal 784. This argument assumes that James Dalrymple and John Watson Laidley knew in 1870 that the lands of touzi No. 512 were in fact parts of the permanently settled estate No. 523. Of this there is no evidence. The evidence furnished by the Diara proceedings and by the conduct of James Dalrymple and John Watson Laidley who were also partners of Robert Watson & Co., the predecessors of the appellant, is accordingly against the contention of the appellant.
17. The patnidars Robert Watson & Co., however, treated their patni with a rental of Rs. 1975 odd as extending over the lands of both the touzi Nos. 523 and 512 (Ex.27, B 272 'at 28l). In the conveyance by which the Dhudhurias purchased from the successors-in-interest of James Dalrymple and John Watson Laidley, the assets were calculated on the basis that the said patni taluk included the lands of both the touzis Ex. 27 (c) B-285 at 297 and 298. In the conveyance, however, the two touzies were dealt with as separate entities, each as an independent item of property, and touzi No. 512 was expressly stated to comprise accreted lands (B-290). The Dhudhurias applied for registration and caused their names to be registered in the Collector's register in respect of both the touzi Nos. 523 and 512 (Ex. 3-B 313, Ex. S (3)-C 849, Ex. S.C 840 and Ex. S (1) C 843). At this time and up to 1903 they did not treat touzi No. 512 to be merely a part of touzi No. 523. On 5th May 1904, however they made an application to the Collector for excusing them from filing a separate road cess return for the lands of touzi No. 512 (Ex. 11-G-l). In that application they stated that touzi No. 512 had been created in 1870 by taking the lands of touzi No. 523, that touzi No. 512 was another appearance of touzi No. 523, and all its lands were really lands of touzi No. 523. This application contains a clear admission by the Dhudhurias that the lands of touzi No. 512 were the reformations in situ of the lands of touzi No. 523. This application was apparently granted and the Dhudhurias filed one cess return for both the touzis on 6th September 1904 (Ex. 10 (a)-C 730). At p. 748 a statement was made that all the lands of both the touzis had been let out in patni. Khem Chand Churiar (there is a misprint of the name at p. 748) who was one of the am-muktears of the Dhudhurias and who verified the return has been examined for the purpose of explaining away the return (A. 112)'. The explanation which he has attempted, that he did not know of the contents of the return, as neither he nor the other am-muktear Joshi could read Bengali is unbelievable, as in cross-examination he admits that he can read Bengali. The return must have been written by the filing muktear on the instructions of a responsible agent of the Dhudhurias.
18. On 5th March 1907 another road cess return was filed by the Dhudhurias (ex. 10-B 428.) In it also an unequivocal admission was made to the same effect as in Ex. 11. These admissions (if they had been the only items of evidence) would have been almost conclusive against the defendants. They would have great weight unless either explained away or shown to be wrong. The purpose of filing one return with a statement that touzi No. 512 had no assets apart from those of touzi No. 523 was to lighten their liability for cess. In our judgment the weight of these admissions has been nullified by the explanation furnished by the full evidence which we have as to the formation of touzi No. 512 in 1870. The Dhudhurias were concerned to avoid assessment to further cess, by pointing out that all the assets of touzi No. 512 were included in those of touzi No. 523. Their further statements are unsupported by the history of the facts and have no foundation. The only way in which it could finally have been determined, if at all, that the lands of touzi No. 512 were actually the lands of touzi No. 528 was by exact ascertainment of the position of the 1789-1793 river (we have already seen that the position cannot be determined on the evidence before us with sufficient precision). To know that it is a nice question as to what would be the final result of an exact determination of it. It is to be remembered too that the Dhudhurias were subsequent purchasers and were not in possession necessarily of the same full information as to this matter as their predecessors or as the appellant for that matter. Even as late as the year 1921 the appellant proceeded upon the basis that the revenue survey map of 1850-54 correctly delineated the villages of taraf Udaynagore of touzi No. 523 (paras. 2, 4 and 6 of the plaint of suit No. 21 of 1921 Ex. U, C-492). The settlement records no doubt record the lands both of touzi Nos. 512 and 523 as within the plaintiff's patni but as the lands thereof were kept separate and distinct and expressly recorded either as within the one or the other touzi we do not think that those records afford any evidence on the question as to whether the lands of touzi No. 512 were reformations in situ of the lands of touzi No. 523. We accordingly overrule this line of argument.
19. There can be no doubt that Robert Watson & Co., were in possession of the lands of tauzi No. 512 since their formation on the assertion of their patni rights. That fact is recorded in the Diara map of Udaynagore of 1868 (Ex. 28 (12), Map No. 15 M (1)). There is no evidence that the said company abandoned its possession subsequently and that the then proprietors, James Dalrymple and John Watson Laidley, took possession. There is no documentary evidence in the shape of kabuliats or other papers to show that the latter settled tenants or possessed any portion in khas. In the conveyance which Robert Watson and Co., executed in favour of Robert Watson & Co. Ltd., on 26th May 1890 (ex. 27, B-272) the vendors' possession of the lands of touzi No. 512 on an assertion that they were within their patni taraf Udaynagore is shown (b 281). In the conveyance by which the Dhudhuriag purchased in 1893 the zamindary interest in touzi Nos. 512 and 523, the assets are calculated on the basis that the said patni covered the lands of both the touzis (Ex. 27 (c), B 285 at 297-298). The income of the zemindars from hudda Ikuri which includes taraf Udaynagore is stated to be Rs. 2171-5-7 1/2 (B 297). The hastabud of the patni comprising the said hudda is stated to be Rupees 8899-11-2. The sudder jama (revenue) payable by the zemindars in respect of the said hudda is calculated at Rs. 6728-5-7 1/2. The figure is not stated in the relevant column at p. 297 but the calculations are in the next two pages. The balance of Rs. 2171-5-7 1/2 was accordingly mentioned as the profits. The calculation at page 298 is significant. The hastabud, i. e. patni rent payable, of the several patnis in hudda Ikuri is mentioned in detail. The total comes to Rs. 8899-11-2. There is a mistake no doubt with regard to the patni rent of Udaynagore. It ought to be Rs. 1975 odd and not Rs. 2055-9-1. The mistake crept in by not converting the patni rent of Rs. 1201 (sicca) of Jelanghy hudda as mentioned in Ex. 6 (b), (b 148) into Company's coin. But that mistake is not material for the point we are considering. The figure, Rupees 6728-5-7, which was mentioned as the revenue of the said hudda Ikuri must have been derived in the following manner:
Rs. 7583-3-9 1/2 (Revenue assessed at the Permanent Settlement, the sum mentioned in Rokba-bandi, that is, Rs. 7111-0-6 1/2(sicca) converted into Com-pany's coin (Ex. 1,B 14-16). Rs. 3177-10-0 Revenue assessed on touzi----------- No. 512 (Ex. M.B. 197).Total Rs. 10760-13-9 1/2less Rs. 4032-2-3/4 Remission of revenue granted in 1870 on account of diluvion of the lands of----------- touzi No. 523 (Ex. L 3-F.,Rs. 6728-9-6 1/2 2009-2011.)
20. The difference is about 4 annas which may, however, have been due to a little miscalculation. This indicates that the patnis were treated as covering the lands not only of hudda Ikuri within touzi No. 523, but also the lands of touzi No. 512 and that the patnidars were in enjoyment of the last mentioned lands. In the cess returns Exs. 10 (a) and 10 (C 730 and B 428) the Dhudhurias admitted that all but 13 bighas, 14 cottas, 8 chittaks of land, were in the possession of the patnidars. The settlement records prepared under chap. 10, Ben. Ten. Act, and finally published in 1920 and 1921 record the possession of the appellant as patnidar in such portions of the lands of touzi No. 512 as were then dry. It has .accordingly been conclusively proved that the appellant and its predecessors were all along in possession as patnidars of the lands of touzi No. 512 'and were paying to the Dhudhurias a patni rent of Rs. 1975-8-1. Whether the appellant Company would be liable to pay additional rent for possessing the lands of touzi No. 512 as part of its patni over asli taraf Udaynagore is a question outside the scope of this suit. We cannot also believe the defendants' case that the lands of touzi No. 512 so far as Udaynagore was concerned went under the river immediately after their formation in 1867-68 and continued to rise up, and go down under the river bed at short intervals. This case is to some extent against para. 10 of their written statement as amended and is moreover not supported by any evidence.
21. The evidence of Kefatulla Sarkar (A. 94) on which the respondents have relied deals not with the diluvion of village Udaynagore but of portions of the village Atarpara in or about 1869 or 1870. From this long possession the appellant's advocate wants us to draw an inference not of fact but of law to the effect that the lands of touzi No. 512 were but lands of touzi No. 523. For this purpose he relies upon Forbes v. Meer Mahamed Hossein ('73) 20 WR 44, Secretary of State v. Durbijoy Singh ('92) 19 Cal 312, Haidar Khan v. Secretary of State ('09) 36 Cal 1 and Secretary of State v. Radha Kisshore Manikya ('16) 3 AIR 1916 PC 141. These cases do not support him. The first case laid down the proposition that long possession is proof of title. There the question was whether the jalkar in question was a part of a tenure which had been created before the Permanent Settlement and so protected from the attacks of the purchaser of the zemindary at a revenue sale. It was held to be so on the ground that the tenure-holder was possessing it as such for a long period. In the second case the question was whether the lands in suit had been included in the previous inter partes decree. The decree had not defined with precision the lands decreed. It was held that possession of the lands in suit given to and taken by the decree-holder and retained for a long time on the basis that it was included in the said decree was relevant for the purpose of defining the lands so decreed. In the third case the question was whether Regn. 3 of 1891 (Assam) could be enforced in respect of the jhum lands in suit. That could be done only if the said lands were at the time of the Permanent Settlement beyond the limits of the estate so settled but its assets had been taken into consideration on account of jhum cultivation. If however the said lands were included within the limits of the estate permanently settled the said Regulation which was exproprietary in nature could not he invoked. The Judicial Committee held that long possession coupled with other important evidence furnished by the proceedings of 1842 and 1843 raised the inference that the said lands had been included within the limits of the respondent's permanently settled zemindary. In the fourth case the question was whether a long strip of land between two hilly spurs had been included in the respondent's permanently settled estate. That portion had not been shown in the revenue survey of 1859 as part of the respondent's estate. On this fact Government contended that it was not part of the respondents' zemindary. It was established in fact that it was not subjected to survey operations at all in 1859, being a strip of jungly land on the borders of the British territory and the territory of an independent Chief. In those circumstances it was held that long possession by the respondent outweighed the negative evidence furnished by the revenue survey map. These cases are of no help to the appellant company. Long possession would raise the inference of its title to possession, but it would afford no basis for the further inference that that title rested on reformation in situ and not on accretion. We overrule all the three lines of argument advanced by the appellant's advocate to establish that the lands in suit are reformations in situ of the lands of touzi No. 523 as permanently settled in 1793.
22. We find that the lands in suit are not reformations in situ of touzi No. 523 (a) because the case made in the plaint that the river was outside taraf Udaynagore at the time of the Decennial and Permanent Settlement has not been proved; (b) because the case that they were within the island of Nipara has not been proved, as the precise position of the river in 1789 has not been established and (c) because the admissions made by the Dhudhurias in Exs. 11 and 10 have been explained by the contest-ins defendants.
23. The case of estoppel has been presented before us by the learned advocate for the appellant under two heads: (1) that defendants cannot be allowed to show that the lands of touzi No. 512 are not the reformed lands of touzi No. 523 and (2) that the defendants cannot be allowed to show that the plaintiff has no patni right in the lands of touzi No. 512 and so in the disputed area.
24. The second head need not be considered in view of what we would hold on the plaintiff's alternative ease based on accretion. We do not think that the defendants are estopped from asserting that the lands of touzi No. 512 are not reformations in situ of the lands of touzi No. 528. Between 1870, when the new touzi was created, and 1890, the zemindars were James Dalryrnple and John Watson Laidley or their successors-in-interest and the patnidars were Messrs. Robert Watson & Co. During this period there is no evidence of any representation made by the zemindars to the effect that touzi No. 512 was created out of the lands of touzi No. 528. Over and above this, Robert Watson & Co., knew that the lands of touzi No. 512 were treated as accretions and were settled with Dalrymple and Laidley on the basis that they were accretions. The zemindars between 1890 and 1893 were the representatives of James Dalrymple and John Watson Laidley who were then dead. In 1890 the patni interest passed from Robert Watson & Co., to Robert Watson & Co., Ltd. There is no evidence of such a representation being made by the zemindars in this period. In 1893 the Dhudhurias became the zemindars and in 1902 Crawford purchased the patni. During this period there was also no representation by the zamindars. A statement to the effect that touzi No. 512 was formed out of the lands of touzi No. 528 was made by the Dhudhurias for the first time on 5th May 1904 in their application (ex. 11) made to the Collector for the purpose of being excused from filing a separate road cess return for touzi No. 512. In the cess return however (ex. 10 (a), C 730) filed by them on 6th September 1904 no such statement was made. The appellant company purchased the patni from Crawford, along with other properties from others by a conveyance dated 3rd December 1906. At that time the other road cess return, Ex. 10 (B. 428), which contained a statement similar to the statement made in Ex. 11 (G 1) had not been filed. Sivadass Dutt (a 75) has deposed that he was an officer of Messrs. Andrew Yule & Co., who were the managing agents of Robert Watson & Co. Ltd., and also became the managing agents of the appellant company. He says that just before the purchase of the appellant company he called from the muffasil road cess returns filed by the Dhudhurias. This story is improbable, because those returns would not be necessary either for the investigation of title or for preparing the conveyance. Even if the story be true, the relevant road cess return then available would be Ex. 10 (a). By that return no representation would be conveyed to the appellant that the lands of touzi No. 512 were reformations in situ of touzi No. 523, because no such statement was made in Ex. 10 (a). There is also no evidence that the appellant company completed its purchase on the faith of anything contained in the road cess return, Ex. 10 (a). The said witness does not say anything with regard to Ex. 11. That the existence of Ex. 11 was unknown to the appellant company at or before its purchase, and so it had not acted upon any representation made therein, is quite apparent from the manner in which Ex. 11 was exhibited in the case. The document was not in the appellant's list of documents. It was not called by the appellant from the Collector. Some other papers were called from the latter by the appellant and in the bundle sent was found the application and it was at once proved : Judgment of the Subordinate Judge-A 138 1.10 to 20. We accordingly hold that no case of estoppel has been made out by the appellant.
25. The defendants admit that touzi No. 51.2 was created for lands which had accreted to touzi No. 523 (para. 9 of the written statement) . They do not plead, as has been supposed by the learned Subordinate Judge, that those lands first formed as an island chur with unfordable channels all round. Under Section 4 of Regn. 11 of 1825 those lands became an increment to the patni tenure of Messrs. Robert Watson & Co., the patnidars at the time, and if the rights of Messrs. Robert Watson & Co., had been ultimately conveyed to the appellant, the latter would have the right to possess those lands and the zemindars, the contesting defendants, would have no right to possess in khas. The right so given by law to Messrs. Robert Watson & Co., is sought to be defeated on the pleas taken in para. 10 of the original written statement as amended and in para. 1. of the supplementary statement. The pleas are: (a) that Messrs. Robert Watson & Co., relinquished the right given to them by Regn. 11 of 1825; (b) that they forfeited those rights by denying the legality of the settlement of touzi No. 512; (c) that their rights under the regulation had been extinguished as the zemindars were in khas possession for more than twelve years during which the lands remained above water after formation in 1867-68.
26. In our judgment none of the pleas have been made out by the defendants. In an earlier part of our judgment, we have considered the question of possession in details and have found that Messrs. Robert Watson & Co., and their successors-in-interest were all along in possession in assertion of their patni right. The absence of an offer by them to pay additional rent for the increment to their tenure cannot, in our judgment, take away the rights conferred on them by Section 4 of Regn. 11 of 1825. There can be no question of forfeiture as Messrs. Robert Watson & Co., never denied the legality of the creation of touzi No. 512 on the basis that the lands thereof were accretions. All the evidence that is on the record shows that they and their successors instead of relinquishing or abandoning their rights were asserting and maintaining the same. The second line of defence is that even if Messrs. Robert Watson & Co., and Messrs. Robert Watson & Co., Ltd., had patni right over the lands of touzi No. 512, the same was not conveyed either to Crawford or the appellant. The contention depends upon the construction of the conveyances [Ex. 27 (a) (B 379) and Ex. 27 (b) (b. 408)]. In the recitals of the former conveyance the vendors Messrs. Robert Watson & Co;, Ltd., declared their intention to convey to the purchaser Crawford the Rajapore concern together with all zemindaris, patnis etc., belonging to the said concern. The vendors actually conveyed to the purchaser all their interest in the 'said Rajapore concern' and in the zemindaris and all other landed immovable property held therewith or belonging thereto all which premises are more particularly described in the schedule annexed...and all other kinds of jotes . . . and all other lands and tenure of every description held or belonging to the said concern.
27. In the schedule the patni mehal is described as 'taraf Udaynagore appertaining to the Murshidabad Collectorate touzi No. 523'. The respondents' advocate bases his argument on the description given in the schedule and says that the patni in touzi No. 512 did not pass to the purchaser. The conveyance however expressly conveys to the purchaser not only what was described in the schedule but all the landed property, zemindaris, patnis and other tenures which were being then held as belonging to the Rajapore concern. The patni over the lands of touzi No. 512 was then undoubtedly held as appertaining to the said concern. This is indicated by the statement made in the schedule to the conveyance executed by Messrs. Robert Watson & Co., in favour of Messrs. Robert Watson & Co., Ltd., (Ex. 17, B. 272 at p. 281). The conveyance Ex. 27 (b), (b. 408) in favour of the appellant substantially takes the same form as the conveyance 27 (a). Several indigo concerns including the Rajapore concern were conveyed to the purchaser
together with all other property whatsoever and wheresoever which the vendors or any of them were entitled in connexion with the said concerns (B. 41 para. 4).
28. Schedule 5 annexed to the conveyance puts the matter beyond doubt. Whatever was conveyed to Crawford by Ex. 27 (a) was being conveyed to the appellant. We accordingly overrule this defence also. The appellant company is accordingly entitled to recover possession of the lands in suit on the basis, and on that basis only, that the lands in suit are accretions to its patni in taraf Udaynagore.
29. The next question is whether the appellant is entitled to mesne profits. In the plaint the appellant claimed mesne profits from 12th September 1927 till re-delivery of possession. No court-fee was however paid on the claim for mesne profits but a statement was made that court-fee on that relief would be paid when ordered by the Court. The plaint ought to have given a tentative valuation for the claim for mesne profits and on that valuation court-fees ought to have been paid. But as the plaint stood the Court could not have dismissed the prayer for mesne profits without giving an opportunity to the plaintiff to value the relief and to pay court-fee thereon. Even if the suit was confined to a claim for mesne profits only, the plaint could not have been rejected without the plaintiff being given an opportunity to put the matter right [O. 7, Rule 11 (c)]. The appellant has made an application before us for valuing the claim for mesne profits separately and has tendered the deficit court-fee. The first technical difficulty in the appellant's way has been now removed by our granting that portion of the prayer made in that application. The reason which led us to grant the prayer was that such an amendment ought to be allowed at any stage of the suit. The second objection of the respondents is that the prayer for mesne profits had been withdrawn by the plaintiff Company in the lower Court by its application dated 18th May 1983. On that day it applied for permission to withdraw the prayer for mesne profits with leave reserved to bring a new suit for the same. The withdrawal of the prayer required an order from the Court as leave to bring a suit was prayed for. The Court did not pass any order on that date . but stated in the order sheet that the petition for withdrawal be kept with the record for orders at the time of the judgment (order No. 112, A. 26). No doubt no order was ultimately necessary on the petition in view of the fact that the suit was entirely dismissed. On our reversal of the decree of the lower Court for possession, it would have become necessary for us to pass an order on that petition, but before we could do so, when the matter was pending judgment the appellant Company filed an application before us for allowing it to withdraw the application made by him in the lower Court on 18th May 1933 and we granted that application. We cannot take away the right of a party to withdraw any application made by him on which no orders had been made at the time. The prayer for mesne profits accordingly stands and the technical defect has now been removed.
30. On 8th May 1933 the lower Court however re-framed the issues and the issue on mesne profits previously framed was left out. In our judgment that issue ought to be. now framed and decided. We accordingly direct the lower Court to start an inquiry for mesne profits but in the course of the inquiry the Court must also consider the question as to whether the contesting defendants ought to be made liable at all for mesne profits. That question was sought to be argued before us by the respondents' advocate, but we intimated that we should have the views of the lower Court on the matter. As an inquiry for mesne profits will have to be started and as proceedings for granting mesne profits are entirely distinct proceedings we thought that was an additional reason why the views of the lower Court on that point ought to be ascertained. We accordingly set aside the judgment and decree of the lower Court and decree possession to the appellant. The Court below is directed to take proceedings for determining whether the defendants are liable for mesne profits, and if it answers that question in the plaintiff's favour, then to start an inquiry for ascertaining the amount.
31. The question of costs will now have to be determined. More than three-fourths of the time that the hearing lasted had been taken by the appellant's advocate in arguing the question of reformation in situ and of estoppel on which he has lost. We think that in these circumstances although the appeal has succeeded, each party ought to bear the costs incurred by it or them at the hearing, that is no hearing fee ought to be allowed to any. The appellant must have the costs of the court-fee stamps affixed on the memorandum of appeal and the fee payable for drawing the memorandum of appeal. As regards the paper book, we are of opinion that it has been unnecessarily increased in volume. Only three maps No. 46,50 and 52 out of Part II, vol. II of the map volumes were referred to at the time of the argument and nearly half the number of maps of Part II, vol. I was not opened. Only a few settlement records were necessary and were referred to at the time of the hearing but three volumes, D, E and F have been padded with them. Only the last few pages of volume F beginning with 2006 were necessary. In these circumstances and having regard to the failure of the appellant Company on the point of reformation in situ we think that ought to have no costs for printing the maps, except of Colebrooke's map (Map No. 4). Thagbust of Udaynagore (Map No. 15), revenue survey map of Goas (Map No. 22), E.C. Sen's map (Map No. 28), Smart's map (Map No. 46), Kennel's map (Map no. 50) and O'Donel's map; and only one fourth of the other printing costs. It would also have the costs of the lower Court from the contesting defendants.