R.C. Mitter, J.
1. In 1907 one Mobarak Ali applied to the Government for settlement of 174 drones 8 kanis lgandaand 2 cottas( = 1138-72acres) of Noabad land belonging to the Government. That area was then covered with jungle. In his application he stated that he was willing to take the settlement 'according to the practice of settlement of such lands.' That meant that he was prepared to take settlement according to usual terms and conditions on which Noabad lands are settled by the Government. That application was granted and a 114/1 was created. There was a jamabandi which fixed the rent at Rs. 175 a year (Ex. 5, II. 6) from 1314 Rule Section He was let into possession. Later on he was asked to execute the kabuliat but he evaded the request with the result that there is no written document which shows the terms and conditions of the settlement. In the jamabandi, Ex. 5, there is a column for entering the date and the terms 'as mentioned in the patta.' There being no patta or kabuliat in this case, the terms and conditions of the settlement were not noted in that column but only the date of commencement of the settlement was mentioned. As the purpose of the jamabandi was to fix the rent, the rent assessed was mentioned in the appropriate column arid the date from which the rent so assessed was to run was also stated.
2. Later on, Mobarak Ali sold 8 annas of his interest to one Nilambar and the remaining 8 annas to Santinidhan. Nilambar in his turn sold his share to one Nritya Ranjan, who could not pay down the whole of the price, for the balance of which (Rupees 3000) both Nritya Ranjan and Santinidhan executed a mortgage in favour of Nilambar charging their interest in the said land. In 1927 Nilambar sued Nritya Ranjan and Santinidhan for his money and ultimately got a final decree for Rs. 7752. (In execution thereof, the mortgaged premises were sold and were purchased by the appellant bank for Rs. 400 only, on 11th March 1936. The said bank took symbolical possession on 18th October 1936, but could not get actual possession in the circumstances to be narrated hereafter. The said bank accordingly brought this suit on 2nd October 1937 for possession of the said area of land included in Jote No. 114/1. There was an alternative prayer, namely for 'compensation and mesne profits,' in case it cannot for any reason get possession.
3. Mobarak Ali and his successors-in-interest, Nilambar, Santinidhan and Nitya Ranjan could not reclaim the whole area of Jote No. 114/1. By the end of 1929 only 437.29 acres had been cleared and brought under cultivation. The remaining area of 701.43 acres was uncleared. A portion of this unreclaimed area of 701.43 acres, namely 464.05 acres was then covered with forest and the remaining portion namely 237.38 acres was the site of forest-clad hillocks. Some time in the year 1924 or 1925, (the exact date or year does not appear from the record nor is the precise date material) a survey and settlement under Chap. 10, Bengal Tenancy Act, was started. This survey and settlement is called the revisional settlement in this suit. In the course of that survey, the area reclaimed and the area not reclaimed were surveyed and mapped separately. We have mentioned above the area that was found to have been cleared and brought under cultivation and the area still unreclaimed. The area unreclaimed portion was classified in the manner indicated above. The area reclaimed namely 437.39 acres and the area of 237.38 acres of unreclaimed lands were recorded in the draft khatian in the name of Santinidhan and Nritya Eanjan and the remaining area of unreclaimed land, namely 464.05 acres was recorded in the khas khatian of the Government. Under Part 2 of Chap. 10, Bengal Tenancy Act, only the reclaimed area of 437.29 acres was assessed at Rs. 252, a year and in the finally published Record of Eights that area of 437.29 acres was recorded as a separate tenure, Jote No. 96 at a rent of Rs. 252 and was recorded in the names of Santinidhan and Nritya Eanjan and the remaining area, namely 701.43 acres, made up of the aforesaid two blocks of unreclaimed land, namely, 237.38 and 464.05 acres, was recorded as the khas lands of the Government. As the Government had a mind to include the said area of 701.43 acres within a reserved forest, the requisite preliminary notification under Section 4, Forest Act, was issued and duly published and a proclamation inviting claims was duly promulgated in accordance with the provisions of that Act.
4. Santinidhan and Nritja Ranjan filed a claim under Section 6, Sub-section (c) of that Act before the Forest Settlement Officer in respect of the said 237.38 acres of land which had been recorded in their possession in the draft khatian but no claim was preferred by them in respect of the other piece of unreclaimed land, namely 464.05 acres which had been recorded in the draft khatian in the name of the Government. This claim was rejected by the Forest Settlement Officer by an order dated 4th August 1930 (Ex. G, II. 14). Against that order the claimants preferred an appeal to the Collector under the provisions of Section 17 of that Act. The claimants urged before the Collector, as they had done before the Forest Settlement Officer, that they held the said area in permanent tenure right. The Collector dismissed the appeal by an order dated 17th January 1981 (Ex. C not printed). He held that the claimants had failed to prove that their tenure, (Jote No. 114/1) was a permanent one, that they having failed to clear the jungle in time the Government had the right to resume the said area of land and that the Government had rightfully resumed the same. He held that they were not entitled to any compensation for the said area of land. Thereafter, on 26th May 1931, the notification under Section 20, Forest Act was published and the whole area of 701.43 acres was included in a reserved forest. Santinidhan and Nritya Ranjan who had taken the settlement of the reclaimed area of 437.29 acres recorded as Jote No. 96 at the settled rent of Rs. 252, fell into arrears and that tenure was put up to sale under the public Demands Recovery Act and the Government purchased the same at the nominal price of three pies on 4th November 1933. The plaintiff having purported to have purchased the lands of the said tenure, Jote No. 114/1 at the mortgage sale has sued the Province of Bengal for the reliefs which we have noticed above. The claim rests upon two grounds No. 114/1 namely, (1) that Jote No. 114/1 was a permanent tenure and the Government had no right to split up and resume a portion thereof and (2) in any event even if the tenure was a non-permanent one the Government had not terminated it in a legal manner and the whole proceeding, including the proceeding taken under the Forest Act, is illegal. The Province of Bengal in its written statement denied that Santinidhan and Nritya Ranjan's heirs and thereafter the plaintiff bank had any subsisting right to any portion of the said area of 1138.72 acres but at the hearing did not resist the plaintiff's claim to the lands of Jote No. 96. The learned Subordinate Judge held that the plaintiff had no right to the lands in claim save and except the lands of Jote No. 96. He made a decree in respect of the lands of that jote and dismissed the plaintiff's claim to the rest. Hence this appeal by the bank.
5. The first question in the appeal is what were the rights of Mobarak Ali in Jote No. 114/1. It is clear from his application that he offered to take settlement on the usual terms and conditions on which Noabad lands were being settled. That offer was accepted. The settlement to him was in tenure right. The terms and conditions imported into the settlement were therefore the terms and conditions on which Noabad taluks were being then granted by the Government. To determine the said question it would be necessary to go into the revenue history of Noabad lands in the District of Chittagong.
6. In 1760 Nawab Mir Jafar Khan was deposed from the Governorship of Bengal and his son-in-law Nawab Mir Kasim was elevated in his place by the East India Company. By a treaty of that year the three districts of Burdwan, Midnapore and Chittagong were ceded by the Nawab to the company ostensibly for the purpose of enabling the latter to meet the expenses of the army which the company agreed to maintain for the support and assistance of the Nawab. In 1763 Nawab Mir Kasim was deposed and Nawab Mir Jafar was reinstated. He confirmed the grant of Mir Kasim of the said three districts. At that time, more than 5/7th of the District of Chittagong was unreclaimed and only about 2/7th had been brought under cultivation since the Mogul conquest of 1666 by the refugees from Ara-kan, the Mughs, and some settlers from Bengal. The reclaimed lands which were mostly in the northern part of the district did not form a com-paot block but lay scattered about like oases in a desert. This was the condition Which the East India Company found in 1760. In 1761 the Government published a general advertisement to settle the waste lands on favourable terms and Joy Narayan Ghoshal,the nephew of the then Diwan 61 the company in charge of the revenue administration of the district applied for such a settlement and his prayer was granted. This grant is known as Jaynagar Taluk. In 1764-1765 a rough survey and measurement was made of all lands which had been brought under cultivation. The area of such reclaimed lands was found to be 609 square miles, of which 575 square miles were included in various estates called Taraps and the remainder, 34 square miles, was measured as appertaining to Jaynagar Taluk. The first mentioned area was settled with the tarafdars in 1790 for ten years under the Decennial Settlement Regulation which was made permanent in 1793. (O'Malley's District Gazetteer of Chittagong, p. 143) Taluk Jaynagar was never settled permanently. The lands of Taluk Jaynagar and the lands reclaimed after the measurement of 1764-1765 are known as Noabad lands and the Government is the proprietor thereof. About the year 1790 or so, Joy Narayan Ghoshal claimed all the lands of the district which were waste in 1763 as within his grant and set up a forged sanad in support of his claim. The Government thereupon attached all his lands. A suit resulted and in 1815 the Sudder Dewany Adalat held that Joy Narayan was entitled to be restored to possession of so much of the land which he had brought under cultivation before 1764 and which were recorded as cultivated in the survey and measurement of 1764-1765 but he had no right to the rest of the land. An infructuous survey was made thereafter to work out that decree.
7. It is unnecessary for the purpose of the point before us to detail what took place between 1815 and 1837. As the tarafdars had been going on since 1764 reclaiming lands adjoining their estates and professing to hold the lands so encroached upon as parts of their estates and many persons had been setting up false claims to hold reclaimed lands as lakhiraj a general survey of the whole district was ordered in 1837. This survey and the work of settlement was eventually conducted by Mr. Rieketts who concluded his work in 1848. The lands of thetarafs were demarcated from the lands encroached upon by the tarafdars and the area brought under cultivation by other agencies since 1765 were also defined and demarcated. The excess lands occupied by the tarafdars were assessed and settled with them separately, that is not included in the tarafs, and for term of years. Other lands were also settled for term of years. In some cases the period of the settlement was for 30 years, later extended by 20 years more, and in some cases for terms of five to ten years, subsequently extended to 25 years. Mr. Rickett had recommended permanent settlement but the Board of Revenue as a matter of general policy in respect of Noabad lands did not accede to his proposal but directed settlement for terms of years as stated above. One of the conditions of the settlement of Noabad lands was that the settlement holder would have no right to the area of land that maybe found unreclaimed at the expiry of the period of his settlement. (Allen's report of the Survey and Settlement of Chittagong p. 70, para. 224). This has been the feature of settlement of all Noabad lands and it is one of the usual condition of such settlements. (Hunter's Statistical Accounts of Bengal, Vol. 6, pp. 170 and 171). Under some misconception, Lord Dalhousie after his visit to Chittagong in 1853 directed that the Noabad lands which had been settled as Noabad taluks for terms, of years should be incorporated with the tarafs and settled permanently with the tarafdars. The misconception was that all Noabad lands had been separated from some taraf or other. Whereas, it was in fact not so, as would appear from the summary of Ricketts survey given by Sir Charles Allen (Allen's report p. 66 para. 212). Lord Dalhousie's orders were not communicated to the talukdars by the Commissioner. In 1863, however, Sir Cecil Beadon, directed the permanent settlement of all Noabad lands but the offer of permanent settlement made by the Government was hedged in by conditions which wrecked the scheme of permanent settlement of Noabad lands. Only 360 talukdars out of 297.43 accepted the offer and those taluks were permanently settled (Allen's report, p.70, Hunter's Statistical Account, Vol. 6, pp. 172 to 173).
8. In 1869 the Board of Revenue again recommended permanent settlements of Noabad lands but the Government turned it down. Except for the brief period between 1865 and 1867 when only 360 permanent settlements of Noabad lands were made Noabad lands had all along been settled temporarily. Settlements for fixed periods became the invariable rule in respect of Noabad lands (Allen's report, p, 69, para. 220). Three things are apparent from the revenue history of Noabad lands of Chittagong, namely, (1) that the settlements were not proprietary ones, (2) that the settlements were temporary - for terms of years, and (3) that the settlement holder had no right to those portions of land which had not been brought under cultivation by him within the period of his settlement. At the end of the term of settlement the Government had the right to take away the unreclaimed land without paying any compensation. On these materials the appellant bank cannot claim any permanent interest in the lands of Jote No. 114/1 Mobarak Ali prayed for and was granted the settlement on the usual terms and conditions on which Noabad lands were being settled by Government. For the same reason the appellant bank cannot have any right to that portion which was not brought under cultivation within the period of the settlement concluded with Mobarak Ali and the Government had the right to take possession thereof at the expiry of that settlement which was made in 1907. The only other question therefore that remains is what was the term or period of that settlement. If that settlement expired on or before 1929, when the area of 701.43 acres of land which has been included in I the reserved forest, was found to be unreclaimed, Sanfcinidhan and Nitya Kanjan's right to the same ceased and the Government had the right to do whatever it liked with that area of waste land.
9. Between 1842 and 1848 settlements were made for terms of years. The terms of all those settlements were to expire by 1898. Since Ricketts' Survey and Settlement the district as a whole had not been surveyed. Mr. Fasson made a partial survey in 1875 and some re-settlements had been made between 1875 to 1882 but the terms of those settlements were also to expire in or before 1898. For the purpose of re-assessment and re-settlement of those taluks and also to find out new lands brought under cultivation since Ricketts' general survey, Government thought it advisable to survey the entire district in time so that re-settlements may be made in 1898 when the periods of settlement of all the Noabad lands which had hitherto been settled would expire. In 1889 a notification was issued for survey of the whole district and settlement under Chap. 10, Ben. Ten. Act, and Sir Charles Allen was put in charge of the operations as the Settlement Officer. He completed his work in 1898, The old Noabad taluks were re-settled as also the other clearances which were discovered at that survey. Many other settlements for reclamation of more jungle lands were made. All these new settlements and re-settlements were made for terms of years. The Noabad lands within Thana Eamu were settled up to Chaitra 1330 (April 1924) and the restupto Chaitra 1331 (April 1925). Paragraph 429, p. 125 of Sir Charles Allen's Settlement Report, to which we have referred before, deals with these settlements only, namely those made in 1898. As Jote No. 114/1 was created after 1898 that paragraph does not in terms apply to it. After the conclusion of the survey and settlement under Chap. 10, Ben. Ten. Act, Sir Charles Allen the Settlement Officer ceased to function and the matter of settlement of Noabad lands thereafter was made over, as is usual in such cases, to the Collector of the District.
10. During the course of the survey and settlement operations by Sir Charles Allen matters of general importance relating to Noabad lands were discussed and a definite and general scheme for settlement and re-settlement in future was discussed and settled. That scheme is of importance in the case before us. One of the matters formulated in that scheme related to the period for which such settlements were to be made in future. For the purpose of convenience and methodioal dealing Sir Charles Allen proposed that the period of all settlements of Noabad land should be so fixed that they may terminate at the same time. That principle was accepted by the Government. In a minute dated 23rd January 1893 he suggested that a fixed expiring date of all settlements should be made for lands within each thana. In that minute he also suggested other rules for general observance in settlements of Noabad land. After some correspondence he embodied his suggestions in draft rules which he forwarded to the Commissioner of the Chittagong Division, by his letter No. 761G, dated 6th September 1893 (Noabad Selections, Vol. 6, pp. 151 and 152). He suggested that those rules were to be observed in all settlements that may be made then or in future. Rule 5 of the draft rules runs as follows:
Term of settlement : The settlement should ordinarily be granted for a term which will expire at the same time as the Noabad taluki settlement of the Thana in which the lands are situate.
11. In respect of Rule 5 the only modification that was made by the Government was that instead of separate expiring dates being fixed for each thana, one expiring date should be fixed for the whole of the district (see Noabad Selections, Vol. 6, page 132, para. 8). The draft rules as made by Sir Charles Allen with the said and some other modification were accepted and promulgated by the Board of Revenue's Circular No. 5 of May 1895 (Allen's Eeport, p. 125, para. 427 and Boards Eevenue Circulars 1894 and 1895, p. 100). The position thus is that settlement of Noabad lands whenever to be made were to be made according to these rules and the aforesaid circular order of the Board laid down that the term of all settlements of Noabad land to be made thereafter is to be so fixed that the expiry of all such settlements may be on the same date (see para. 11 of the Rules as printed at p. 102 of the Board's Circulars of 1894 and 1895). This date the Board subsequently fixed to be April 1924 for the Noabad lands within Thana Bamu and April 1925 for Noabad lands in the rest of the District by an order embodied in letter No. 986A dated 10th October 1896 written by the Secretary to the Board of Revenue to the Secretary to the Government of Bengal, Revenue Department (Noabad Selections, Vol. 6, p. 130). Paragraphs 8 to 11 of that letter are important. The conclusion to which we come from the above materials which we have gathered from boobs of authority and Government publications and which support the evidence given by Bidhushan Gupta is that the usual conditions on which Noabad lands were being settled at the relevant time are (i) that the settlements were to be for fixed periods, (ii) that the term of every settlement concluded after 1898 was to end in April 1925 except with regard to lands in Thana Ramu, where the date fixed was April 1924, and (iii) the settlement holder would lose all rights to the area of land which was not brought under cultivation during the period of his settlement.
12. Those terms were incorporated into the settlement of Jote No. 114/1 by reason of the form of Mobarak Ali's application. Santinidhan and Nitya Banjan had therefore no right after April 1924 to any portion of the aforesaid area of 701.43 acres of land which were found waste at the revisional settlement operations of 1925-1929 and which was thereafter included in the reserved forest. Apart from the reasons given above we are of opinion that the plaintiff is not entitled to any relief as to that area of land for the following additional reasons. Santinidhan and Nitya Ranjan preferred claims before the Forest Settlement Officer in respect of 237.38 acres out of that waste area under Section 6(c), Forest Act. That claim was investigated under Section 7 and rejected by that Officer. They preferred an appeal to the Collector under Section 17. That appeal was dismissed. No application in revision was made to the Local Government. The appellate order thus has become final under Section 18(4) and the civil Court has no power to restore the said piece of land or to grant compensation in respect thereto to Santinidhan or Nritya Ranjan or to their successor-in-interest, when the order of the Collector in the appeal was that they had no interest therein and were not entitled to compensation. With regard to the balance, namely 464.05 acres of waste land no claim was preferred to the Forest Settlement Officer under Section 6(c). It does not appear that that Officer had acquired any knowledge about the rights of Santinidhan and Nritya Ranjan in the same in the course of an inquiry under Section 7. On the publication, of the notification under Section 20, whatever rights those persons had in that area became extinguished by virtue of the provisions of Section 9. For the above reasons we hold that, the appellant is not entitled to succeed in respect of the said area of 701.43 acres which has been included in'the reserved forest.
13. The last point that has been argued by the appellant's Advocate is that, the Court below ought to have granted the plaintiff bank a decree for mesne profits in respect of the lands of Jote No. 96 for which a decree for possession has been made in its favour. The learned Subordinate Judge has rightly held that no such prayer was made in the plaint. The said learned Advocate feels the force of the observations of the learned Subordinate Judge and prays for permission to amend prayer No. 2 of his plaint at this stage. We cannot accede to that request. The Province of Bengal had purchased that Jote (No. 96) in execution of a certificate for arrears of rent. It pleaded in its written statement that the plaintiff bank had no right to that jote also. At the hearing it confessed judgment in respect thereto. It may be that had there been a claim, for mesne profits in the plaint the contest in, respect of that jote would not have been withdrawn. In; these circumstances we do consider that: it would not be fair to the Province of Bengal if the amendment asked be granted at this stage.
14. We are very much indebted to Mr. Mookerjee, Assistant Government Pleader of this Court, for valuable assistance he gave ns in this case., The result is that this appeal fails. It is accordingly dismissed with costs. Hearing-fee 15 gold mohurs.