Wilson and Porter, JJ.
1. This is a suit brought to recover certain lands which, the plaintiffs say, were included in the pottah or pottahs under which they held their property from the Government, and from which they say they have been dispossessed by the defendants.
2. A number of issues were raised, and the Munsif disposed of those issues in such a manner as to entitle the plaintiffs to the decree they asked for.
3. On appeal, the Deputy Commissioner of Cachar has reversed that decision on one ground. He says, with reference to a survey which had been made apparently about the year 1881 or just previously, 'the laying of the boundary mehals during the recent settlement was not appealed apparently either under Section 59 or Section 60 of Bengal Act V of 1875, and therefore under Section 62 of the same Act the present suit is barred. It has been argued that the dispute has been going on for a long time, and that legal proceedings were entered into regarding the matter previous to the laying of the boundary, but that does not appear to me to make any difference. The present suit admittedly was brought after the relaying of the boundary by the Settlement Officers, and it is to the date only of the present suit that I can look.' He has therefore held that the proceeding of the Settlement Officers under Bengal Act V of 1875 was by Section 62 of that Act conclusive.
4. Now, Section 62 refers to an order deciding a boundary dispute. Boundary disputes are dealt within the fifth part of the Act. Section 40 says: 'If it shall come to the notice of the Collector, in the course of a survey under this Act, that a dispute exists as to any boundary which should be surveyed, the Collector, after holding such inquiry as he may deem necessary, may determine such boundary as hereinafter provided.' That clearly contemplates that there shall be a dispute between certain parties, that there shall be a proceeding between those parties in which they shall have an opportunity of stating and establishing their several claims, and in which the Collector is to decide the boundary as between the parties. The nature of the decision and the matter to be decided are stated in the next section. Section 41 says that 'the Collector shall determine the boundary according to actual possession, and cause it to be secured by boundary marks, and the order of the Collector under this section shall, until it be reversed or modified by competent authority, have the force of an order of any Civil Court, declaring the parties to be in possession of the land in accordance with the boundary as determined by the Collector.' Therefore what the Collector is to determine, in a proper proceeding, is the fact of possession, and he is to lay down the boundary line according to actual possession. He is not to inquire, and has no jurisdiction to inquire, as to any question of right or title. Sections 59 and 60 give appeals to certain superior revenue authorities, and then comes Section 62, which says: 'No suit shall be brought to set aside an order of a Superintendent of Survey, Collector, Assistant Superintendent, or Deputy Collector deciding a boundary dispute, unless an appeal shall have been first preferred under Section 59 or Section 60, or unless the person suing was at the time when such order was passed a minor, or insane, or an idiot.' In the present case there is not shown to have been any boundary dispute between the present parties to this suit. There is not shown to have been any proceeding before a Revenue Officer to which these persons were parties, or in which they were represented. Therefore there was nothing in existence which could enable the Revenue Officer to decide a question of boundary between them under Section 40. Further, if there had been such proceeding before the Revenue Officer, and if he had decided anything he would have decided the fact of possession, and his order wild operate only as to the fact of possession. And as the only thing as to which a suit is forbidden by Section 62 is the setting aside of an order deciding a boundary dispute, it follows that if there had been the most regular proceeding and the most formal decision on the question of boundary in a boundary dispute, though that would have been conclusive as to possession, under Section 62 it would have been no bar to a suit based upon title.
5. For these reasons we think that the decision of the lower Appellate Court cannot be supported, and must be set aside.
6. The Deputy Commissioner has not dealt with the other issues arising in this suit in a way which appears to us sufficient to enable us to dispose of the case. It is necessary, therefore, that the case should go back to him in order that he may decide those issues.
7. The appellant will have his costs of this appeal.