1. This is an appeal against a decision dismissing a suit for recovery of possession of a small piece of land in the town of Dibrugarh, The land in suit is a piece of land between the homesteads of the plaintiffs and the defendant and the dispute between the parties is a boundary dispute. There was a survey and settlement in 1911, in which the boundary between the lands of the two parties was laid down by the settlement authority. In 1915 the Sub-Deputy Collector held an enquiry and found that the defendant had encroached on the plaintiffs' land to the extent of 33 links and that the plaintiffs had encroached on the defendant's land to the extent of 3 links, and the Sub-Deputy Collector referred the plaintiffs to a Civil Court for redress, on the 21st May 1916. Then I find that the parties appeared before the Deputy Commissioner, font whether they made an appeal from the Sub-Deputy Collector's order or put in a fresh application regarding the boundary dispute does not appear from the papers that have been filed in these proceedings. The Deputy Commissioner passed an order that the parties must abide by the existing boundary. On the record of the first Court there was also a copy of the later order of the Deputy Commissioner dated the 8th July 1966 in which he says:---
2. 'He must adhere to the boundaries fixed at the last re settlement unless he can get a decree of a Civil Court altering them'. Though this document was on the record, it was not marked as an exhibit and no reference was made to it in either of the lower Courts. In the suit brought by the plaintiff with reference to this boundary dispute, the Mausif went into the merits and decided in favour of the defendant and also held that the Civil Court had no jurisdiction having regard to the provisions of the Assam Land Revenue Regulation, 1886. On appeal, the lower Appellate Court only decided the question of jurisdiction and confirmed the order of dismissal of the suit. Obviously if, as is contended, the order of the Deputy Commissioner, dated the 8th July 1916 was in review of his order dated the 8th June of the same year, it cannot be treated as a final order ousting the jurisdiction of the Civil Court. But this order has not been properly proved, nor did I allow it to be put in in evidence in accordance with rule 27 of Order XLI, Civil Procedure Code, though I might have done so, if I had not held that the appeal would succeed on other grounds.
3. Whether the Civil Court had jurisdiction or not depends on whether the order of the Deputy Commisioner was passed under Section 28 of the Regulation. That Section provides: 'Whenever, in the course of survey, it dimes to the knowledge of the Survey Officer that any boundary dispute exists, he shall notify the same to the Settlement Officer who shall proceed as follows'. Then the Section lays down how the Settlement Officer shall proceed to determine the boundaries in the case of different classes of boundary disputes. Sub-section (2) of that Section provides that the order of the Settlement Officer determining any boundaries or any dispute under two of the clauses of that Section shall be final. Section 154 of the Regulation provides that any matter respecting an order expressly declared by this Regulation to be final shall be excluded from the jurisdiction of a Civil Court. It appears to me that this appeal must succeed, on the ground that the defendant has failed to show that the order of the Deputy Commissioner deciding this boundary dispute was one which was final by reason of its having been passed under Section 23. Copies of the orders passed do not show under what Section the Deputy Commissioner purported to act. Further, it will appear that at the time when the order was pawed no settlement operation was going on. Section 23 is a part of Chapter III of the Regulation, which deals with settlement and resumption. In order to give the Settlement Officer jurisdiction under that section, there must be a report to be made by a Survey Officer of the dispute that has come to his knowledge in the course of his survey. The Deputy Commissioner's powers as a Survey Officer are given him by Section 138 of the Regulation. That Section empowers the Chief Commissioner to invest any officer with all or any of the powers of a Settlement Officer during the currency of a settlement and farther provides that if no Settlement Officer is appointed, the Deputy Commissioner shall have all the powers conferred by this Regulation on a Settlement Officer or Survey Officer. The learned Vakil for the respondent has not been able to show me that there is any Section in the Regulation which empowers a Settlement Officer to settle disputes other than those which come to the knowledge of the Survey Officer in the coarse of a settlement proceeding. It will appear that the Regulation gives the Deputy Commissioner no power to settle a dispute, such as is the dispute in the present case, which arose long, after the settlement proceedings and which came to the knowledge of the Deputy Commissioner on an application from one of the parties concerned. Taking this view, I must hold that the learned Subordinate Judge was wrong in dismissing the appeal before him on the ground that the Civil Court had no jurisdiction.
4. The appeal is allowed, the judgment and decree of the lower Appellate Court is set aside and the case is remanded to that Court for a decision on the merits. If the order of the Deputy Commissioner of the 8th July 1916 had been properly put in in evidence and the learned Subordinate Judge's attention had been drawn to it, it seems to me unlikely that the learned Judge would have held that the Civil Court's jurisdiction had been ousted.
5. As the appellants failed to do this they mast pay the costs of this appeal.