1. I am of opinion that the accretion, which, under Reg. XI of 1825, Section 4, Clause 1, must be considered an increment to the defendant's tenure, should be governed by the terms and conditions applicable to the parent tenure as provided in the kabuliat under which such parent tenure is held.
2. The defendant having admitted his liability to pay some rent, the question to be decided is, what construction should be placed on the words 'increase of rent to which he may be justly liable' contained in that Regulation.
3. The use of the word increase seems to show that consideration is to be given to the rent reserved on the parent tenure. If rent was assessable without reference to the rent reserved on the parent tenure, then I should have expected it to have been expressed as follows:---'The accretion shall not be exempt from the payment of rent which may justly be assessed upon it.'
4. Supposing a perpetual tenure had been created at a pepper com rent, without any salami or bonus being taken, the holder of such tenure would, in effect, be an absolute proprietor, so far as the zemindar was concerned, and, as absolute proprietor, would, in my opinion, be as absolutely entitled to any accretion.
5. Supposing, on the other hand, that a perpetual tenure had been created at a rent less than a rack or fair holding rent, and that a salami was taken on its creation, it might be right, if the circumstances of the lease permitted it, to take such salami into consideration when assessing the rent upon any accretion.
6. But that is not the present case.
7. In the kabuliat under which the defendant holds, it seems to me that the cost and trouble of reclamation were intended to be recouped by the tenant's privilege to hold rent-free for two years after the land first came under culture, as to any land taken into cultivation subsequently to the lease; and as to the lands specially referred to in the kabul at as then under-cultivation, by the reservation for the first three years of a smaller rent than the final rent of Rs. 5. And apart from evidence to the contrary, I must consider final rent of Rs. 5 was at the date of the kabuliat considered as a fair or rack rent after the expenses of reclamation had been recouped.
8. It may be true that, by reason of general improvement and progress, a fa. holding rent at the present day would be more, and perhaps greatly more, than Rs. 5. But there is nothing to show that Rs. 5 was not a fair rent in 1261. And it must be remembered that though the accretion may have formed only lately, the tenant's right to it under the Regulation accrued in 1261; and if it had immediately thereafter come into existence, a perpetual rent as of that date would have been assessed upon it. Why should the zemindar's position be improved and that of the tenant deteriorated, merely according to the date of the accretion coming into existence
9. I think, therefore, that the new accretion, or so much of it as has admittedly been in cultivation for a considerable period, should be assessed at the fair holding rent of Rs. 5 as established in 1261.
10. If the plaintiff's contention was correct, that the rent of the accretion should be assessed at the rate prevailing in the parganas, the defendant would get no greater benefit under the Ragulation than a stranger; but, in my opinion, it was intended that he should have all the benefit of his already assured position.
11. It seems to me that a Court would have extreme difficulty in arriving at any rent intermediate to the pargana rate and the rent reserved on the parent tenure.
12. If any intermediate rent was now adjudged the zemindar might, on the same principle, insist at some future time that it would be liable to enhancement. But this would be contrary to the conditions governing the parent tenure. And if the accretion happened to be very large in extent, in comparison with the area of the parent tenure (and in this case the plaintiff claims that it is more than three times as large as the parent tenure), the value of the latter might almost vanish in consequence of the high rate assessed upon its offspring . In other words, the offspring might swallow up its parent.
13. If, on the other hand, the zemindar could not insist on future enhancement, it is difficult to see on what principle he can now claim a higher rate of rent than that reserved on the parent tenure.
14. I think, therefore, the accretion should be assessed at the same rate as the parent tenure, and this renders it unnecessary for me to decide within what limits the parent tenure and the accretion respectively lie. But I agree with the Subordinate Judge that the report of the Amin in this case is not reliable, partly for the reasons stated by the Subordinate Judge and partly because the reasons stated by the Amin for fixing the southern boundary where he places it, seems to me insufficient and inconclusive. I also agree with the Subordinate Judge, that if pargan rates were assessable on the accretion, there is no sufficient evidence to what such rates should be. It may possibly be, that if Government were o assess a higher proportionate revenue on these accretions than is borne by the parent tenure, the plaintiff might have an equity to ask for contribution in that respect from the defendant But that case has not yet arisen, and we are unable to deal with; as at Present revenue has been assessed by Government on these a (sic) first the question should be left open till the Government asse(sic) first the(sic).
15. The learned Advocate-General, for the plaintiffs, placed some reliance on the remarks of the Judicial Committee in the former suit between the parties, in which it was decided that the plaintiffs were not entitled to possession of these accretions. Those remarks were as follows:---'The defendant was a middleman, and not a ryot, having a right of occupancy within the meaning of Section 17, Act X of 1859, or liable to enhancement under that section. If liable to enhancement at all, he could only be enhanced according to the pargana rate of the rents payable by similar holders.'
16. The observations are somewhat ambiguous, but it is sufficient to say that they were not intended to settle the question, and were made, apparently, without the question having been really argued.
17. According to our decision, the defendant's appeal fails in its main objection to the decision of the Subordinate Judge. And I am also of opinion that it fails with respect to the manner in which the howladari rukha should be calculated, the decision of the Subordinate Judge in this respect being correct.
18. In only one point is the defendant entitled to succeed in this appeal. The Subordinate Judge says in his judgment,
The defendant claims a further deduction of 202 bighas, which have been found by the Amin to be of the description called helli and dhalli; but as this land would shortly be fit for cultivation, it cannot be exempted from assessment.
19. But I think that, in accordance with the terms governing the parent tenure rent would not become payable until two years after the land is taken int cultivation.
20. We have been informed by the plaintiff's advisers that this has been altered on review; but if it has not, the defendant's appeal will succeed in that respect. In other respects it fails. The plaintiff's appeal fails in all respects. Under the circumstances, I think the parties ought to bear their own costs in this Court.
21. I concur in the judgment which has just been delivered by my learned brother. Upon the essential question to be decided in this case, I desire to make a few observations. That question really is this. At what rate is rent to be assessed on the alluvial increment to an under-tenure? In order to the decision of this question in this particular case, there are three points which it will be well to notice. In the first place, the rent on the original howla is a fixed rent, not capable of enhancement. This has been settled as the result of previous litigation between the same parties. In the second place, the alluvial increment is admittedly liable to assessment of rent; and there is now no contention before us, that the landlord is not entitled to receive additional rent for the additional land added to the under-tenure. In the third place, the under-tenure was created on the 4th Bhadro 1260,---that is, the 19th August 1853, and therefore there is no question of the applicability of Section 51 of the Regulation VIII of 1893, which applies only talocks or tenures in existence at the time of the Permanent Settlement, The ground being, thus cleared by the disposal of these preliminary points, the question to be decided further resolves itself into this,---whether the rent on the alluvial increment is to be assessed in proportion to, or upon the same principle as the rent payable upon the usli, or original under-tenure; or is to be assessed according to the rates payable in the vicinity for similar under-tenures or howlas, and without regard to the rent payable upon the usli, or original under-tenure. Now the words of Reg. XI of 1825, Section 4, Clause 1, are these:---'When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed.' What is the meaning of the term 'tenure' in this context? Tenure is usually regarded as a mode of holding property, as, for instance, in the expressions 'tenure by grand serjeanty,' 'copyhold tenure,' 'fudal tenure,' ' tenure burgage,' 'tenure by cornage,' and it is impossible to disconnect the meaning of the word 'tenure' in any particular context from the ordinary incidents, subject to which the particular tenure is held. Then again the word 'tenure' is used not only of the mode in which property is held but also of the land itself which forms the subject of the tenure. The very clause of the Regulation which we have to construe in this case, furnishes an example of this double meaning of the term 'tenure,' which is used in the first sense in the passage, 'it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed.' And in the second sense in the passage, 'provided that the increment of land thus obtained shall not entitle the person in possession of the estate or tenure, &c.;' Looking as the whole clause of the Regulation, I think the reasonable construction to be put upon the words 'land . . . . gained by gradual accession . . . . shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed,' is, that the incidents of the original tenure attach to the increment. We have then immediately after these words a double proviso. The first proviso is concerned with the assessment of Government revenue. As to this, 1 shall have something to say hereafter. The second proviso is this:---'Nor if annexed to a subordinate tenure held under a superior landlord, shall the under-tenant, whether a khoodkusht ryot holding a mourosi istemrari tenure at a fixed rate of rent per bigha, or any other description of under tenant liable by his engagements, or by established usage, to an increase of rent for the land annexed to his tenure by alluvion, be considered exempt from the payment of any increase of rent to which he may be justly liable.' It appears to me, that the words ' payment of any increase of rent' have a certain reference to the rent payable on the original tenure. Then as to the words 'may be justly liable,' it is important to bear in mind that when Regulation XI of 1825 was passed, the Legislature had not laid down any rules for the enhancement of rent, or the assessment of land with rent. We know from State papers of the period of the Permanent Settlement, and the period subsequent thereto, that this was done designedly, as Government wished to avoid the appearance of interfering too much between the newly-created proprietors and the ryots, thinking, moreover, that the relations between them would be gradually settled by contract and by the proof of usages and customs in the Courts of justice. This we have in Regulation VII of 1799, Section 15, Clause 8, a provision to the following effect:---'The Courts of justice will determine the rights of every description of landholder and tenant when regularly brought before them, whether the same be ascertainable by written engagements or defined by the laws and Regulations, or depend upon general or local usage which may be proved to have existed from time immemorial.' It thus appears to have been the intention c f the Legislature to leave these questions of assessment and enhancement of rent to be settled by mutual agreement or local usage. This will, in all probability, explain the fact that the Legislature did not, in Clause 1 of Section 4 of Regulation (sic)I of 1825, lay down any more precise rule for determining the rent to be paid for land forming an alluvial increment to an under-tenure than that container in the words 'increase of rent to which he may be justly liable.' These words---'justly liable'---appear to me to have a certain reference to the principle upon which the rent may have been assessed upon the original tenure. For example, rent; is, in many cases, made payable as a lump sum for a given area. In other cases, it is assessed according to a classification of the land. In the case of a jungle-bori howla, a howla or lease of waste land, which must be reclaimed before it is fit for cultivation, it is usual lo let a considerable area of land for a certain lump sum as rent. In the case of land wholly or partly brought under cultivation, it is not unusual to assess the rent with reference to the different classes of land and the different crops which the laud is capable of producing. These are well-known usages of the country, and it appears to me, that the words 'justly liable' indicate an intention on the part of the Legislature that the rent payable for the alluvial increment should be settled with reference to the circumstances of each particular case, regard being had to the agreement of the parties in respect of the original tenure, where there is such an agreement, and where there is no such agreement, to any usage proved to be applicable to such tenure.
22. Then as to the proviso which has reference to the assessment of Government revenue, and the argument which has been addressed to us on this point, it may be observed that, when Regulation XI of 1825 was passed, there was a previous Regulation in force, that is Regulation II of 1819, which provided for the assessment of Government revenue upon alluvia! increments to estates. Clause 1, Section 3 of that Regulation enacted as follows:----'All lands which, at the period of the Decennial Settlement, were not included within the limits of any pargana, mouza or other division of the estate for which a settlement was concluded with the owners, not being lands for which a distinct settlement may iiave been made since the period above referred to, nor lands held free of assessmer under a valid and legal title of the nature specified in Regulations XIX and XXXVII of 1793, and in the corresponding Regulations subsequently enacted, are and shall be considered liable to assessment in the same manner as other unsettled mehals, and the revenue assessed on all such lands, whether exceeding 100 bighas or otherwise, shall belong to Government.' The second clause of the same section further provides, that 'the foregoing principles shall be deemed applicable not only to tracts of land such as are described to have been brought under cultivation in the Soonderbuns, but to all churs and islands formed since the period of the Decennial Settlement, and generally to all lands, gained by alluvion or dereliction since that period, whether from an introcession of the sea, an alteration in the course of rivers, or the gradual accession of soil on their banks.' That Regulation, therefore, distinctly laid down the principle that alluvial increments to permanently-settled estates are liable to assessment for Government revenue; but it did not enunciate the principle upon which that Government revenue is to be assessed. That is a matter provided for by the executive orders of Government, or of the Board of Revenue; and it is further a matter over which the Civil Courts have no jurisdiction. It may, however, be assumed, for the purpose of deciding this case, that the revenue to be paid to Government upon the alluvial increment is assessable without reference to the amount of revenue payable upon the original estates. If, then, it may be argued, rent should be assessed on the alluvial increment according to the rate payable upon the usli, or original under-tenure, and if this rent should be so small that it will not suffice to meet the Government revenue which the Settlement Officers may assess upon the same alluvial increment regarded as an increment to the revenue-paying estate, is it net unjust to the zemindar that he will this be forced to hold this addition to his estate at a loss? If this question is asked in the interests of Government, the answer is a very simple one, -viz., that if, by reason of the rent payable on the alluvial increment being less than the Government revenue, the alluvial addition, or the original estate with the alluvial addition (where both are included in a single new engagement with Government), becomes unprofitable to the zemindar, the result will be a Government sale, and the avoidance of the under-tenure as the result thereof, whereupon the unincumbered estate will, in the hands of a purchaser at such sale, presumably yield sufficient to pay the revenue and afford a reasonable profit. But Government is no party to this case, and therefore it is unnecessary to decide this question so far as Government is concerned, Then so far as regards the zemindar, the case contemplated by the argument has not yet arisen, for it has been admitted at this hearing that Government has not yet assessed any revenue upon the alluvial increment. The fact of Government revenue having been assessed upon the alluvial increment is, therefore, not necessary element for consideration in the case which we have to decide. But it may be important to point out that the new case, which will arise when revenue is assessed on the alluvial increment, is provided for by an Act of the Bengal Council,---namely, Act VIII of 1879. Under the provisions of Section 7 of this Act, the rent recorded as demandable from an under-tenant in all estates under settlement is to be determined by the Settlement Officer in accordance with certain rules therein prescribed. One of the questions which the Settlement Officer has to determine in order to settle this rent is this, whether the under-tenureis binding as against the Government or not? and upon the decision of this question will depend the amount of rent which is to be recorded as demandable from the under-tenant. Under Section 10 of the same Act, every under-tenant is liable to pay the rent so recorded as demandable from him, unless he can prove in a civil suit that such rent has not been assessed in accordance with the provisions of the Act; and under Section 11, if the Court modifies or sets aside such rent, it is to proceed to determine the rent payable by the under-tenant in accordance with the provisions of the same Act. The direct object of those provisions is to secure a reasonable proportion between the revenue payable by the zemindar to Government and the rent payable by the under-tenants to the zemindar. It will thus appear that it may possibly be open to the parties at any future time, when the Government proceeds to settle the revenue payable upon the alluvial increment, to re-open the question of the rent to be paid in respect of such increment, and to have such rent re-assessed under the provisions of Section 7 of the Reng. Act with advertence to the amount of Government revenue made payable upon such alluvial increment. It appears to have been the intention of this Act to enable the Settlement Officer to re-adjust the rent of under-tenures when such rent had been previously fixed at an amount insufficient to meet the revenue subsequently assessed. Whether the Legislature has used language sufficient to effectuate this intention, and whether this particular under-tenure falls within the operation of the Act, it is no part of our duty on the present occasion to decide. I will only observe that our decision-proceeding as it does upon the present circumstances of the case, i.e., while Government revenue has not been assessed-does not anticipate the assessment of revenue, and does not decide whether or not such assessment will have the effect of making the defendant 'justly liable' for any other higher rent. With reference to the provisions of the Regulation, and apart from the question of Government revenue, I have myself no doubt hat the alluvial increment ought to be assessed with rent on the same principle as rent is, by the contract of the parties, payable upon the original, or usli, under-tenure.