1. This is an appeal by the plaintiffs whose suit has been dismissed by both the Courts below.
2. It will be necessary to state a few facts for the proper understanding of the matter which is before us for decision. Touzi No. 399 of Mahal Nawapara of the Nadia Collectorate is owned by the plaintiffs and defendants 2-11. Defendant 1 is the State of West Bengal. It is unnecessary to state the different shares held by the plaintiffs and defendants 2 to 11 in this Touzi, There was an accretion to this Touzi and that became Touzi No. 2645 Char Nawapara which was settled temporarily, that is, for a period of 15 years with the plaintiffs and defendants 2 to 11 in accordance with the provisions of Bengal Alluvion and Diluvian Act (Act IX  of 1847). Just before the term was coming to an end, the Collector of Nadia addressed the proprietors of the accreted Touzi asking them to take a fresh settlement. The plaintiffs refused to take fresh settlement. Thereupon the Collector farmed out the Touzi in favour of the Chetlangia Court of Werds which is defendant 3 for a period of one year pending the Revisional Settlement. On the expiry of that year, a fresh settlement had to be made with the former owners and according to the State of West Bengal such fresh settlement was made under Section 10 (5) of the Bengal Land Revenue Settlement Regulation 1822 with the original owners. I may mention at this stage that a great deal of controversy has been raised by the plaintiffs as to whether the fresh settlement was legal, or whether it was at all binding on the plaintiffs. I shall deal with this controversy later. After this alleged fresh settlement, the accreted Touzi, namely, Touzi No. 2645 of Char Nawapara, fell into arrears of revenue and it was put up for sale and purchased by the State of West Bengal. The amount realised fey the sale was not sufficient to meet the arrears. Thereupon, in accordance with the provisions of the Public Demands Recovery Act (Bengal Act in  of 1913) a certificate was issued for the arrears against the alleged defaulting proprietors. The plaintiffs then instituted the present suit.
3. The plaintiffs' case was that the certificate is null and void and unenforceable against them for various reasons. I shall state only those reasons which were pressed before this Court. They are as follows:
(i) In accordance with the provisions of Section 10 (4) of the aforesaid Regulation of 1822 it was incumbent upon the Collector to issue a notice as well as to promulgate a proclamation requiring the parties to whom the fresh settlement was being offered to attend and declare their agreement or non-agreement to the jama proposed to be assessed on the land. It is argued on behalf of the plaintiffs that no notice was issued, nor was there any proclamation made.
(ii) According to the provisions of Section 10 (5) of the aforesaid Regulation, when a fresh settlement is offered if any person or persons, summoned to appear and to express his or their agreement or disagreement, omit to attend, he or they shall be bound by the decision of the majority of those who may attend and agree or disagree to the jama. In this case, the plaintiffs point out that one person only attended, namely, defendant 3 and that there could, therefore, be no majority. In these circumstances, it is argued, the plaintiffs would not be bound by the acceptance of the settlement by defendant 3, As a subsidiary point, it was argued that, even if the plaintiffs were bound by the decision of defendant 3, if the revenue fell into arrears, the plaintiffs' interest in the Touzi only would be liable for the arrears and the plaintiffs would not be personally liable.
(iii) The third point argued was this: After the expiration of the period of 15 years when the time came for making a fresh settlement, the plaintiffs refused to take a fresh settlement and the Collector farmed out the Touzi to defendant 3, the plaintiffs getting merely a Malikana in respect of the Touzi, By reason of this act of the Collector, the plaintiffs ceased to have any rights or liabilities as proprietors of the Touzi, and not having any joint property in the Touzi they were not liable to be asked to take fresh settlement, nor were they liable to be bound by a fresh settlement being taken by the majority of persons attending pursuant to a notice issued under Section 10 (4) of the aforesaid Regulation of 1822.
4. These are points which have been argued before us.
5. As stated before both the Courts below dismissed the suit. The suit was dismissed not only on the merits but also on the ground that it was barred by limitation by reason of the provisions of Section 34. Public Demands Recovery Act, and also barred by the provisions of Sections 35, 86 and 37 of the last mentioned Act.
6. I shall deal first with the question whether the suit is barred by limitation or otherwise by reason of the provisions of Sections 34 to 37, Public Demands Recovery Act. In my opinion, none of the sections relied upon by the Courts below have any application. The plaintiffs' suit was for a declaration that the certificate was a nullity. The sections relied upon by the Court below relate to a certificate which has been duly made but which is defective for some of the reasons mentioned in those sections. They have no application to a case when it is alleged that the certificate is a nullity as in the present case. The suit, in my opinion, would be governed by tie provisions of Article 120, Limitation Act and is, therefore, well within time. It is also not barred by reason of any of the other provisions of the sections above mentioned for the reasons just stated.
7. As regards the first point, I find that the Courts below have found as a matter of fact that notice was served upon the plaintiffs and all the other defendants who were required to be served with notice. The learned Judge has given his reasons for coming to this conclusion and on second appeal I can find no justification for interfering with such a finding of fact. I hold, therefore, that the notice was duly served upon the plaintiffs and the others to whom re-settlement was being offered.
8. As regards the making of the proclamation, I find that this point was not taken in the pleadings, nor was it argued in the trial Court. It was not taken in the grounds of appeal before the first appellate Court, nor was it argued there. In this Court in the grounds of appeal no such specific point has been taken. This is a pure question of fact and on second appeal I do not Bee why I should entertain such a question when it was never argued in the Cour's below. I must presume that official acts were duly performed when nothing is alleged denying such performance. The first ground, therefore, fails.
9. As regards the second ground, I am of opinion, that it is not tenable. The defendant 3 did appear and agree to the settlement. The plaintiffs and the other defendants did not trouble to attend. Their conduct, having regard to the provisions of Section 10 (5) of the aforesaid Regulation of 1822 indicated that they would be willing to be bound by the decision of the majority of the persons who did appear. Mr. Sen argued that when one person appeared there could be no majority. The same argument would hold good if two persons appeared, then also there could be no majority. Carried to its logical conclusion, if all of several persons who appeared agreed or disagreed to take a settlement, then also there would be no majority, because there would be a unanimity. This illustrates the unsoundness of the argument propounded on behalf of the plaintiffs. The word 'majority' would include unanimity. If one person appears, the decision] is unanimous and therefore it would bind the] others. Mr. Sen very fairly drew our attention to the decision in the case of Naresh Chandra v. Sm. Snehalata Guha, 47 C. W. N. 730, where Rau J. held that one person appearing and accepting the jama offered by the Collector bound the others by reason of the provisions of Section 10 (5) of the aforesaid Regulation. The second point, therefore, fails.
10. The subsidiary point raised by Mr. Sen on behalf of the appellants that although their interest in the estate may be liable for the arrears of revenue they cannot be held personally liable is based on the latter part of Sub-section (5) of Section 10, Bengal Land Revenue Settlement Regulation, 1822. The passage he relies on is in these terms :
'And his or their interests and estate shall, unless otherwise specially allowed, be held responsible for the Government revenue and be liable to sale in the event of any arrear accruing on account of the settlement.' Mr. Sen suggests that this passage indicates that the method therein mentioned is the only method open to Government to realise its dues. In my opinion there is nothing in the Sub-section to justify such a view. The Sub-section imposes a liability on the 'interest and estate' for the revenue but it does not say that this is the only liability. Further the arrears due constitute Government revenue and they constitute 'a public demand' as defined in Section 3(6), Bengal Public Demands Recovery Act, 1913, read with Schedule 1 of the Act. A certificate under the last mentioned Act may be issued by the Collector for the recovery of such arrears and it may be executed in any of the ways mentioned in Section 14, i.e, by attachment or sale of any property of the certificate debtor by his arrest or by the other methods mentioned therein. There is therefore no substance in this subsidiary point raised on behalf of the plaintiff.
11. There remains the last point. The view of Mr. Sen seems to be that when the plaintiffs refused to take a fresh settlement on the expiry of 15 years, they ceased to have any further interest in the accreted touzi and therefore they were not liable to be called on to take a fresh settlement under the provisions of Section 10 of the aforesaid Regulation. He argued that all their interest ceased to exist in the accreted touzi and they could in no sense be held to have any proprietary right therein. In my opinion, this argument must also fail. When land is gained by gradual accession, it shall be considered to be part of the estate to which it is annexed. This is clear from the provisions of Section 4, Bengal Alluvion and Diluvian Regulation XI  of 1825. Thus this accreted touzi became part of the zemindary which was Touzi No. 399 of Mahal Nawapara of the Nadia Collectorate and the proprietors of the zemindary which may be called the Asli zemindary became proprietors of the accreted tauzi, subject to their paying such revenue as Government was entitled to fix for the accreted touzi. The right of Government to fix the revenue for such alluvial laud is to be found in the Bengal Alluvion and Diluvian Act, 1847 (Central Act IX  of 1847). Section 6 provides for it. Now if the proprietors of the Asli touzi do not agree to pay the revenue fixed, then the Government is entitled either to settle the land in farm or to take khas possession of the land and manage it. In either of these cases, the Government is bound to pay the proprietors 'Malikana'. This is provided for in Section 3, Bengal Land Revenue Settlement Regulation, 1822, and in Section 5 of the same Regulation. The Government however, cannot let out the land in farm, or take khas possession of it for any term exceeding 12 years. It is quite clear from these provisions that after the expiry of the farming lease, if the land is let in farm, or after the expiry of the period for which the Government had decided to take khas possession, the Government is again bound to offer the accreted touzi to the proprietors for taking a fresh settlement on such jama as the Government fixes. If again the proprietors refuse to take settlement, the land would be let out in farm, or taken in khas possession for such period as the Government thought fit not exceeding 12 years. On the expiry of such period, there would again have to be an offer for a fresh settlement and so on. It is quite clear from the provisions of these sections that the fact that the land is let out in farm or the fact that the land is taken in khas possession by the Government on the ground of the refusal of the proprietors to accept the jama fixed by Government does not take away the proprietary interest of the owners of the Asli land in the accreted land. That interest remains and all that the letting out in farm or the taking of khas possession by the Government amounts to is that the land is managed by Government on behalf of the proprietors. The fact that Malikana is paid to proprietors would make it quite clear that the proprietors of the Asli land have a proprietary interest in the accreted land which would render them liable to be called upon to accept or refuse a fresh settlement at the termination of the period during which the land is held either in farm or in khas. The term 'Malikana' has been defined in Wilson's Glossary edited by Mr. A.C. Ganguli and Mr. N.D. Basu (vide pp. 511 to 513). In one passage Malikana has been defined as 'Pertaining or relating to the Malik or proprietor, as his right or due.' It is also defined as 'an allowance assigned to a zemindar or to a proprietary cultivator, who from some cause, as failure in paying his revenue, or declining to accede to the rate at which his lands are assessed, is set aside from the management of the estate, and the collection and payment of the revenue to Government, which offices are either transferred to another person, or taken under the management of the Government Collector.' This definition clearly shows that a person to whom Malikana is paid in accordance with the provisions of Regulation VII of 1822 is a proprietor. Malikana has also been defined as an inalienable right of proprietorship.
12. In this connection I would refer to the decision of this Court in the case of Herranund Shoo v. Ozeerun, 9 W. R. 102, where it was held in a special appeal that the right to Malihana is a proprietary right constituting interest in the land and that it is not the same as rent.
13. I would also refer to the case of Deo Kuar v. Man Kuar, 21 I. A. 148 at p. 161 : (17 ALL. I. P. C.) where Malikana is defined as an allowance made to proprietors who have been dispossessed by Government for the reasons stated in that case. It is thus clear that Malikana is a sum which is received by a proprietor. It is true that the proprietors may not be in pos-session, but they are proprietors nevertheless.
14. I would also refer to the case of Mahendra Narayan v. Abdul Gafur, 35 C. W. N. 1233 at p. 1235 : (A. I. R. (19) 1932 Cal. 49). This case was relied upon by the plaintiffs as supporting their contention. I am of opinion that it does not do so. It was observed by Suhrawardy J. at p. 1235 that Malikana is a grant of a portion of the revenue in view of the pre-existing proprietary rights. It was argued that the words 'pre-existing proprietary rights' meant that those rights did not exist when Malikana was granted. That is a wrong interpretation. What was meant was that Malikana is an amount which is payable because of the already existing proprietary right in the person to whom Malikana is granted. The passage does not mean that the proprietary right which had existed from before ceased to exist upon the grant of Malikana.
15. Mr. Sen depended upon a passage appearing in the judgment of this Court in the case of Soudamini Dassya v. The Secy. of State, 50 Cal. 822 : (A. I. R. (ll) 1924 Cal. 197). The passage appears at p. 838. We have read the passage and we do not think that it has any reference to the facts of the present case. The facts there were entirely different. In that case there had been an accretion to a zemindary and it was assessed to revenue, but the proprietor of the zemindary refused to fate settlement with the result that the accreted lands were constituted into a new estate which was permanently settled with the holder of another zemindary. That person became proprietor of the new estate which had become a separate estate independent of the old estate in all respects. In these circumstances, it was held that the Malikana paid to the original zemindars did not indicate that he had a proprietary right in the accreted lands. The settlement of the accreted lands was made Under Section l of Act XXI  of 1853. The present case is quite different. The plaintiff's received Malikana in respect of the accreted land while it was let out in farm for a period of one year to defendant 3 on the plaintiffs refusing to take re-settlement. The accreted land was not constituted into a separate estate and permanently settled with any one. No new proprietor was given the land. Thus the plaintiffs' proprietary right in the accreted land remained in them and because they had such proprietary right Malikana was paid to them. Malikana was paid to the plaintiffs under quite a different law from that under which Malikana was paid in the case of Soudamini Dassya v. The Secy. of Stats, 50 Cal. 822 : (A. I. R. (11) 1924 Cal. 197) where the accreted land was created into a new permanent estate and settled with a person other than the original zemindar as proprietor.
16. If the matter is looked at from another point of view, I think that it would be evident that the plaintiffs had a proprietary interest in the accreted Touzi. A Touzi cannot exist without a proprietor. Somebody must therefore fulfil the position of a proprietor. Obviously the holder of the farming lease is not the proprietor. If Government takes khas possession for purposes of management it cannot be the proprietor. The proprietor must necessarily be the person on whose behalf khas possession is taken or on whose behalf rent is farmed. In other words, the plaintiffs and his co-sharers must be the proprietors.
17. I hold, therefore, that the plaintiffs held a joint interest in the accreted Toazi and that the Government was bound to offer settlement to them and the other co-sharers in accordance with the procedure laid down in Section 10 of the Bengal Land Revenue Settlement Regulation VII  of 1822. The plaintiffs, therefore, are bound by the acceptance of the settlement by defendant 3 and consequently they are liable to pay the revenue for the land. That revenue not having been paid, the land was rightly put up for sale and as the sale proceeds were not sufficient, the Collector was justified in issuing a certificate against the plaintiffs.
18. In my opinion, the Courts below were right in dismissing the suit. The appeal is accordingly dismissed, with costs in favour of defendant respondent 1.
K.C. Chundar J.