1. The appellants, who would 'hereafter be called the Sens, are the proprietors of a permanently settled estate No. 287 of the Murshidabad Collectorate. That estate had originally the river Bhagirathi as its western boundary but years ago the Government acquired a strip of 'land from out of the said estate adjoining the river and made it a public road. It is called the Strand Road. Thereafter the said estate ceased to be a riparian estate because the said public road intervened between it and the river. After the road was made the river began to recede or shrink in size with the result that chars were formed to the west of the road. These lands were not accordingly accretions to the said estate but still the Sens began to possess them. The higher portion of this char was formed into a estate being No. 3001 of the said Collectorate and was temporarily settled with them for a term of 30 years, from 1905 to 1935. The document, a kabuliat, was however executed on 17th February 1908 (Ex. 29, B-7) We have marked Part 1 of the paper-book as A and Part 2 as B. A strip of land bordering on the river, called in these proceedings as kanchi char and dhalu jami (sloping land) was however excluded from this settlement with them.
2. The river further receded to the west, the kanchi char and the dhalu jami became fit for enjoyment and became valuable land. More dry lands were formed to the west thereof. The Sens and some of their tenants holding parcels of land included in estate No. 3001 encroached upon portions of this land and possessed them without right, these being really the khas property of the Government. This was discovered by the Collector in 1918, who called for an explanation from the Sens. They set up the case that these lands had been included in their temporarily settled estate No. 3001, and if really not, they were accretions to their said estate. In 1921 the Collector issued notices on the actual occupants demanding of them either to vacate or to execute kabuliats in favour of the Government at a rent of Rs. 20 per bigha, that is to say the Collector intimated to them that he was prepared to conclude raiyatwari settlements with them on those terms. One of such notices is Ex. S(B.27). This action of the Collector met with the protest of the Sens, who on 4th January 1922 filed a petition before him in which they set up the right of accretion and offered by way of compromise terms on which they would be prepared to take settlement from the Government of this newly formed area. The main terms were these : (1) Settlement was to be for 15 years. (2) Revenue (or rent as it is called in the petition) Rs. 3 per bigha, and (3) they would have the right to settle tenants at such rates of rent and other terms that they in their discretion might deem fit (Ex. 7; B-28).
3. On this petition an adverse note was recorded by the khas mahal assistant. He pointed out that these terms if accepted would deprive the Government of selami which would and could be obtained by settling tenants, and the rate of rent proposed was ridiculously low, as there are already many applicants who were prepared to pay at the rate of Rs. 20 a bigha. From this it was obvious that the Government would be gainer financially if the claim of the Sens based on the right of accretion could be successfully resisted. The Collector accordingly referred the matter to the remembrancer of legal affairs for his opinion by his letter dated 24th September 1922, (Ex. 10; B 33). The latter in his turn passed on the matter to the Assistant Government Pleader, Mr. S.N. Guha (afterwards Guha J.). The Collector asked for opinion on three specific points : (1) Whether the Government could make direct ryotwari settlement of the lands of Kanchi char and Dahalu Jami and realize selami; (2) whether Government was bound to give a farming lease of the lands to the Sens, and if so, who would bring tenants, either Government or the former, and (3) what would be the status of the Sens, if a settlement of the lands be made with them at a rate of rent of Rs. 3 per bigha (though that was too low) offered by them as a term of compromise.
4. Mr. Guha's opinion, with which the Remembrancer of Legal Affairs agreed, was that the Sens had no valid claim to the Kanchi char and Dhalu Jami either as parts of estate No. 3001 or as accretions thereto, that the Government would be justified in making 'direct ryotwari' settlement and that it was not bound to settle the lands with the Sens. He however suggested a compromise with them for avoiding protracted litigation and the terms which he considered as fair terms of compromise were that a farming settlement of the lands as a separate and distinct estate unconnected with estate No. 3001 may be concluded with the Sens after the Government had concluded ryotwari settlements (B. 39-40). The Secretary of the Board of Revenue forwarded this opinion to the Collector by his letter dated 15th February 1923 (A, B 37). The last portion of paragraph numbered 2 and the paragraph numbered 3 are very important. They would be set out at length hereafter On 28th May 1923 the Sens moved a petition before the Collector through a muktear; in that petition they reiterated their claim as previously put forward but said that they were willing to compromise-with the Government. On this petition the Collector made a note on the next day in these terms:
There are two distinct operations.
1. Settling ryots on the land and
2. Giving a farming lease of the new estate to the applicants. This petition apparently refers-to 2, which I shall probably recommend. The muktear said he would file another petition as-regards 1. (Ex. 25; B. 48).
5. On 11th June 1923 the lands were entered, in the Touzi Register as a new estate bearing No. 3050, but with no demand then, i.e. with no revenue then fixed thereon. It. is clear from the Collector's note on the. Sen's petition of 28th May 1923 and also from the oral evidence adduced by the latter that about May 1923 the Sens formed the idea of taking ryotwari settlements also; and the Collector knew of this intention of theirs. The Collector however in. his letter to the Board of Revenue dated 5th December 1923 (Ex. N2-B 56) did not state that the Sens were also applicants-for ryotwari settlement. In that letter he intimated to the Board of Revenue what he proposed to do. In para. 4 he stated that he proposed to settle the lands with tenants taking selami and kabuliats from? them in the standard form with some necessary modifications to meet the building regulations of the Berhampore Municipality. This passage means that ryotwari. settlements would be made in the first instance. He then said that then a farming, settlement would be made with the Sens in accordance with the Board's direction as conveyed to him by the letter Ex. A (B 37). Para. 5 of the letter refers to other matters-and in para. 6 the Collector states thus:
I am making a settlement of the lands of the estate on the lines suggested above, in anticipation of sanction of the authorities.
6. The view that we take of this letter is that as the Collector was making the Board of Revenue acquainted, in broad outlines with what he proposed to do, he did not deem it necessary to enter into details at that stage in respect of the two classes of settlements the ryotwari and farming. He did not give the Board of Revenue any idea as to who the persons were to be with whom ryotwari settlements would be concluded. The words that he proposed to make 'settlements with tenants' and take selami and kabuliats in the standard form, were intended by him to convey to the Board of Revenue the simple fact that he proposed to conclude ryotwari settlements first and then a farming settlement with the Sens. We cannot hold that he intended to give the Board a definite idea that ryotwari settlements would be concluded with persons other than the Sens. To impute such a meaning to his words would be to charge him with misleading the Board of Revenue deliberately, for, from before the date of this letter he knew for certain that the Sens were also applicants for ryotwari settlements. He mentioned the name of the Sens in connexion with the proposed farming lease because that was the then settled scheme adopted to avoid litigation with them, but the character of persons with whom he proposed ryotwari settlements was not mentioned by him as he thought that the Board of Revenue would later know from him when he would forward the ryotwari settlements for sanction by the Board in terms of Clause 6 of this letter.
7. Before the Collector received a reply to this letter he on 16th January 1924 ordered a ryotwari' settlement with the Sens either jointly or individually. He also noted in his order sheet that after such settlement a farming settlement would be concluded with them also. The Sens were asked to execute kabuliats and an agreement by 24th January 1924 (Ex. M; B 42). On 24th January 1924, the following documents were executed:
(1) Ryotwari kabuliats executed in groups by the Sens in favour of the Secretary of State (Ex. 9 to Ex. 9 (d); B. 70 to 85). The leases evidenced by these kabuliats were for terms of twelve years from 1st April 1924 to 31st March 1935. The selami was Rs. 100 a bigha and rent at Rs. 20 a bigha.
(2) A memorandum of agreement executed by all of them jointly in favour of the Secretary of State. By this they agreed to abide by some additional terms and conditions which are not included in the standard form of ryotwari kabuliats. (Ex. 10-B 86).
(3) An indenture executed by the Collector on behalf of the Secretary of State and by the Sens. This records the com. promise arrived at. The Sens gave up their claim to the lands of the newly found estate as set up before (No. 3052) and the Government promised to grant them a farming settlement for 12 years on an assessment which would be 20 % less than the ryotwari assets, etc. (Ex. 11; B 96.)
(4) A kabuliat executed by the Sens in favour of the Secretary of State for the farming lease (Ex. 12; B. 101). Clause 17 of this document expressly provided that the settlement was made in anticipation of the sanction of the Board of Revenue. The Collector was an executant in (3) and only a witness in (1)(2) and (4). The kabuliats, farming and ryotwari, were registered on 12th February 1924.
8. Copies of all these documents were forwarded to the Board of Revenue with the Collector's letter dated 27th March 1924 (Exs. Q, B 112). In this letter the Collector made a statement that ryotwari settlements had been made by him with the Sens to avoid costly litigation and that he was sending copies of ryotwari kabuliats (Ex. 9 series) and of the memorandum of agreement (Ex. 10) for the information of the Board of Revenue and copies of the indenture (Ex. 11) and of the farming kabuliat (Ex. 12) for its approval; it has to be noticed that some of the terms of this letter are not in accordance with facts. The Board of Revenue had never proposed a ryotwari settlement with the Sens as a term of compromise. It was the farming settlement with them that was to be basis of the compromise with them. The second thing to be noticed is that here the Collector made a distinction between the ryotwari kabuliats and the farming kabuliat, one was sent for information, the other for approval. This was not in conformity with para. 6 of his previous letter to the Board dated 5th December 1923 (Exs. N-2; B 56). It may be that the drafting of this letter was influenced by the proceedings of the Board of Revenue which were forwarded on 7th March 1924 to the Collector through the Commissioner (Exs. O; B-110). On 31st March 1924 the Sens deposited with the Collector the selami due on the ryotwari settlements, but the money was not received as selami by the Collector but kept in suspense account pending receipt of a communication from the Board of Revenue in respect of the ryotwari leases.
9. It appears that between this date and December following the member of the Board of Revenue, Mr. Lees, and his secretary visited the locality and a statement was prepared by the Kanungo showing the names of persons who were in actual occupation and the extent of their possession. On 11th November 1924 the Board of Revenue wrote a letter to the Collectorate (Ex. B; B-118). The effect of this letter is that the ryotwari settlements of the whole of the area of estate No. 3052, with the Sens as concluded by the Collector, was disapproved and the Collector was directed to make fresh ryotwari settlements with the actual occupants in respect of the lands then in their occupation and to conclude with the Sens ryotwari settlements of such portions as were in their khas possession. With regard to lands then unoccupied by any one ryotwari settlements were directed to be made with the Sens on stringent conditions. This meant that the Sens were to be given ryotwari settlement of a very small area out of the lands of the new estate. The Sens protested before the Collector against the Board's order. In September 1928 with the approval of the Board ryotwari settlements of the greater portion of the land were concluded with the actual occupants, the other defendants-respondents in the appeal and only a small area with the Sens. In these settlements the rent was fixed at Rs. 20 per bigha but the selami was Rs. 200 a bigha. The Sens executed ryotwari kabuliats under protests lodged in writing (Ex. 2-F, etc. not printed).
10. The farming kabuliat which they had also executed on 24th January 1924 was not approved by the Board and they executed on 28th September a modified kabuliat (Ex. E; B-154) that had the approval of the Board of Revenue. The present suit was instituted by the Sens on 8th May 1931. Leaving out details the prayers are : (i) for declaration that the ryotwari settlements concluded with them by the Collector on 24th January 1924 are binding on the Secretary of State and that the later ryotwari settlements of 1928 were of no effect, (ii) Recovery of khas possession, mesne profits and (iii) refund of excess selami and excess rent which had been realized by the Government from them.
11. The Subordinate Judge has dismissed the suit. He held that the ryotwari settlements concluded with the Sens by the Collector on 24th January 1924 were not binding on the Government, and so of no effect on the following grounds:
1. Sanction of the Board of Revenue was necessary to ryotwari leases and such sanction not having been given to the leases evidenced by the ryotwari kabuliats executed by the Sens on 24th January 1924, the Sens had no such right as claimed in the suit.
2. The Board of Revenue is fully authorized to revise the act of the Collector in making settlements of Government land.
3. That in granting ryotwari settlements to the Sens the Collector had acted against the instructions of the Board of Revenue and against what he himself had communicated to the Board of Revenue.
4. That the farming and ryotwari leases to the Sens were both integral parts of the compromise with the Sens. Such a compromise required the sanction of the Board of Revenue on the ground that the farming lease admittedly required such sanction.
12. The contentions raised before us by the appellants and respondents call for decision the following points:
(1) Were the ryotwari kubuliats of 1924 (Ex. 9 series) at all accepted by the Collector? (2) Was the Collector the final authority in concluding ryotwari settlements or was it the Board in every case? (3) If he was not, had the Collector been authorized by the Board of Revenue to make such ryotwari settlements as he liked without further reference to the Board? What is the effect if the Collector misunderstood the instructions of the Board and bona fide made ryotwari settlements with the Sens? (4) Did the Collector act against the instructions of the Board of Revenue in making ryotwari settlements with the Sens? (5) What is the effect of the execution of the farming kabuliat (Ex. E) by the Sens
13. We will take up first the questions of fact involved in the points 1, 3 and 4. There can be no doubt on the evidence that the Collector accepted the ryotwari kabuliats executed by the Sens in 1924. These kabuliats were executed by his orders. They were executed in his office and in his presence, he being an attesting witness. He forwarded them to the Board of Revenue for information and when the Board later on intimated to him its disapproval, he in reply insisted that as he was the final authority for making ryotwari settlements there was a final and irrevocable settlement with the Sens (Exs. 26, B 128). No doubt the selami tendered by the Sens was kept in suspense account, but that was done on the report of the office staff (Ex. P. B 116) some of whom were interested in having the ryotwari settlements with the Sens annulled. In fact some of them have obtained in 1928 ryotwari settlements of portions of the land and are defendants to the suit. This fact alone that the selami was not appropriated as such does not in our judgment outweigh the others we have already noticed. We accordingly hold that so far as the Collector was concerned he did not merely entertain the proposal of the Sens for being transmitted to the Board of Revenue but had concluded ryotwari settlements with them.
14. On the questions of fact involved in the third and fourth points stated above, our view is that the Board of Revenue had not authorized the Collector to make without further reference to it ryotwari settlements on such terms or with such persons as he thought fit; nor can we say that in concluding such settlements with the Sens the latter had acted against the instructions of the Board of Revenue. The question of settling the newly formed lands and what was before kanchi char and dhalu jami originated from the Board's letter dated 15th February 1923, (Ex. A; B 37). The material portions of the letter run as follows:
2. ...The Assistant Government Pleader, High Court, with whom the Legal Remembrancer concurs, thinks that Government might resist the claim, (i.e. of the Sens) and make direct ryotwari settlement of these chars which have now become fit for settlement owing to further recession of the river, but to avoid litigation suggests a farming settlement with the Sens of the new land as an estate quite distinct from that created in 1908.
3. ...I am to say that the Board has consulted the Legal Remembrancer again and agree with him, that in existing circumstances, it would be best to avoid possible litigation and to adopt the suggestion of the Assistant Government Pleader, High Court, viz. that a farming settlement of the new land as a distinct estate after making ryotwari settlement should be made with the Sens.
15. It appears to us that at this stage the anxiety of the Board was to avoid a litigation with the Sens by inducing the latter through the Collector to accept a farming settlement. With that object in view the Collector was directed to conclude firstly a ryotwari settlement, so as to give to the Sens only the right to recover from the tenants such rents as they would be liable to pay on the terms of their kabuliats of ryotwari settlement which they were to execute in favour of the Government. If the Board under the law was entitled to see to the terms of each of the ryotwari settlements proposed and to confirm or reject the same, by this letter the Board did not part with the said right. The Collector understood the matter in the same light, for, in para. 6 of his letter to the Board dated 5th December 1923 (Ex. N 2; B56) he mentioned that he would take sanction of the Board after making such settlements. We are further of opinion that neither in this letter (Ex. A) nor in the last mentioned letter (Ex. 2) is there anything definite to the effect that no ryotwari settlements were to be concluded with the Sens. In the earlier part of our judgment we have already indicated the true meaning of para. 4 of Ex. N-2. We accordingly answer these questions in the negative. As we hold that the Collector did not misunderstand the instructions of the Board, the last part of point 3 does not arise.
16. The important point that now remains to be considered is the question involved in point 2. The relevant regulations are Regn. 2 of 1793, Regn. 7 of 1822 and Regn. 9 of 1825. The Subordinate Judge refers to Sections 3, 4, 7, 8, 36 and 39 of Regn. 2 of 1793. Section 3 is not material. Section 4 is in general terms enacting that Collectors are to conform to instructions of the Board. The same is to the effect of Section 36. Section 7 enacts that the duties of the Collector prescribed in Section 8 are to be performed under the supervision of the Board. Sub-section (4) of Section 8 enjoins Collectors 'to make future settlement of khas or farmed estates agreeably to the regulations and instructions which they may receive for that purpose.' Section 39 reiterates the 'general principle' that Collectors are to make settlements of khas lands 'under the regulations and the instructions of the Board of Revenue.' In our judgment the effect of this regulation is that the Board of Revenue has general superintendence over Collectors who are to act according to its instructions, but these provisions do not necessarily imply that a particular settlement of khas land of Government made by the Collector is not binding on the Government till his act has been expressly confirmed by the Board and that till such confirmation the settlement concluded by him is in the eye of the law a nebulous state.
17. Regulation 7 of 1822 was originally intended for the revenue settlement of the 'ceded and conquered provinces' (Districts of Cuttack and Pataspore Parganah). By Regulation 9 of 1825 many Sections of this Regulation which included Sections 9 and 10 were extended to the whole of Bengal. Section 9 Second, and Section 10 First, Para. 2 as amended by Bengal Act 5 of 19 15 are important. Section 9, Second authorizes Collectors to grant pattas to muffasil zamindars and ryots and other owners of land subject to the orders of the Board of Revenue. Section 10 First, Para. 2 as amended by Act 5 of 1915 (B.C.) by necessary implication gives to the Local Government the power to confirm settlements of mahals in perpetuity or for terms of years. Power has also been given to the Local Government to delegate by a notification in the local official Gazette this power of confirming such settlements to such other authority as it may deem fit. By rules published in the Calcutta Gazette the Local Government has delegated this power in some cases to the Commissioner of the Division, in some to the Director of Land Records and in some cases to the Board of Revenue (Rule 523, Pt. 3, Ch. 6, p. 129. Survey and Settlement Manual of 1917 = Rule 632 of the Survey-and Settlement Manual 1935, Pt. 3, Ch. 6,161). Under Rule 524 of the Settlement Manual of 1917 = (Rule 633 of Settlement Manual of 1935) the Collector is the confirming authority only in the summary settlements of land revenue up to Rs. 500 made under Section 9: Third of Regn. 7 of 1822. The Collector is also the final authority when making settlements for colonization (Rule 136, Ch. 8 of the Government Estates Manual read with Part 4, Ch. 7 of the Survey and Settlement Manual of 1917). In Prosanna Kumar Roy v. Secy. of State (1899) 26 Cal. 792 this Court took the words 'subject to the orders of the Governor-General in Council' occurring in Section 7 First, of the said regulation to mean that a settlement concluded by the Collector was not binding on the Government unless and until confirmed by the Governor-General in Council, and the acceptance of a kabuliat by the Collector was of no effect against the Government if the confirming authority mentioned in Section 7 subsequently overruled, the Collector. The same construction of similar words used in Section 9 Second, of the same statute must in our judgment be adopted on well established principles of construction of statutes.
18. We accordingly hold that in view of Section 9 Second, of Regn. 7 of 1822 and the statutory rules made under Section 10 First, of the said regulation the ryotwari settlements concluded by the Collector with the Sens on 24th January 1924, are not binding on the Government and that the plaintiff's suit has been rightly dismissed by the trial Court. The settlement of these lands, a few acres in area, situate in a town and within a municipal area cannot be called a settlement for colonization. The fact that in the ryotwari kabuliats there was no clause corresponding to Clause 17 of the farming kabuliat (Ex. 12) in our judgment does not make any difference, for, if a Government Officer exceeds his authority in the discharge of his duties his acts are not binding on the Government unless ratified by the proper authority : Collector of Musulipatam v. Cavaly Venkata Narainappa (1859-61) 8 M.I.A. 500 at p. 554.
19. In the above view of the matter it is not necessary to decide point 5. By Clause 2 of the farming kabuliyat (Ex. R-B 154) the Sens bound themselves to 'respect the rights recorded in the settlement papers as possessed by tenants of all grades.' It is said that as this knbuliyat was executed by the Sens on 28th September 1928 without protest when the rights of defendants 2 to 54 had already been recorded as tenants, the latter cannot be ejected. The question of fact on which this contention raised by the respondents rests is whether Ex. R was executed by the Sens under protest. There was no doubt, no formal protest to this document but all the Sens protested against the settlements which the Government proposed to the prejudice of their rights under the ryotwari settlements made with them by the Collector on 24th January 1924. The petitions lodged by them before the Collector, one of them being Ex. 2(f), protesting against subsequent ryotwari settlements with others, are good answers to this contention urged by the respondents. If our decision on point 2 had not been against the Sens the terms of Ex. R would not have stood on their way. The result of our decision is that this appeal is dismissed with costs. One set of hearing fees to be divided in the following way amongst the defendants, one-half to be taken by the Secretary of State and the remaining half to be divided equally among the other appearing defendants-respondents except those appearing through the Deputy Registrar as guardian ad litem.