1. These appeals have arisen out of three suits in which the plaintiff sought to establish his title to certain lands which have been declared to be chowkidari chakran lands resumable by Government at an inquiry purporting to be held under Section 58, Village Chowkidari Act 6 of 1870.
2. The suits have been decreed in both the Courts below against the Secretary of State for India in Council. In the appellate Court the suits have been decreed on the ground that the Commissioner who made the inquiry under Section 58 of the Act did not comply with the provisions of the law and therefore the order of the Commissioner is not final under Section 61 of the Act as it otherwise would be.
3. The chief point urged in this appeal is that this Court, under the provisions of Section 61 of the Act, has jurisdiction to inter-fore with the Commissioner's order which is final and conclusive.
Chowkidari chakran lands as described in Section 1 of the Act are lands which may have been assigned, otherwise than under a temporary settlement, for the maintenence of the officer who may have been bound to keep watch in any village and report crime to the police and in respect of which such officer may be at the time of the passing of this Act liable to render service to a zamindar.
4. In this definition it is not expressly stated that the lands must have been assigned by Government. But it is clear from other provisions of the Act that the assignment referred to is an assignment by Government: see the cases of Sri Birbar Narayan Chandra v. Secy. of State  11 I. C. 899 and Secy. of State v. Kirtihas Bhupati Hari Chandan A.I.R. 1914 P.C. 22. Now, reading the findings of the Commissioner reported under Section 61 of the Act it appears that what the Commissioners really found was the actually existing choukidari chakran lands quite independent of whether these were really lands which were originally assigned by Government before the passing of the Act for the maintenance of the choukidars. This will appear not only from the original findings of the Commissioners, which were made ex parte, but from their final orders made in the presence of the parties. That order reads in Case No. 3 of 1913-14:
The objections from zamindar and tenant are not entertainable as they give no valid reason against the fact of possession found out from local inquiry, and the objection which is oral is rejected.
5. Again the original finding of the Commissioners, is based on the fact that the plots in schedule kha which have been found to be chakran lands were mentioned in the Paikan map as such and on the fact that the zamindar's agent admitted that the lands in possession of the choukidar are really choukidari chakran lands. As regards this admission, it appears that what the zamindar's agent really admitted was that these lands had been assigned by the zamindars for the choukidars after they got possession of the lands under kabuliyats from Government. There is therefore no admission that these lands were at any time assigned by Government. As regards the Paikan map, the findings of the Courts below show that the entries therein were strenuously objected to by the zamindar at the time they were made and at that time the Government was unable to produce any evidence that these lands were assigned by Government as choukidari chakran lands. The certified copies of the kabuliyats under which the plaintiff holds these lands show that the lands were given to their predecessors without any reservation of any rent on account of choukidari chaikran lands at the time of the grant in 1818, and there appears to. be no evidence that these lands were at any time assigned by Government for the maintenance of the choukidars. This is stated in the judgment of the Courts below, and that statement has not been traversed in the arguments before us. But this would not entitle us to interfere-with the order which has been passed, if we were satisfied that it had been actually found by the Commissioners that these lands were assigned by Government for the maintenance of the choukidars before the passing of the Act so as to constitute them choukidari chakran lands under the Act. It appears however that the Commissioners did not direct their minds to ascertain what lands were asssigned by Government for the maintenance of the choukidars. What they really found was that they were lands which were in the occupation of the choukidars for their maintenance free of rent or at low rent, and this is not what they were required to find under the Act. From this point of view there had been no inquiry under Section 61 of the Act. There is therefore no finding under the Act which is final and conclusive as regards the existence of choukidari chakran lands and admittedly the Government has been unable to produce any evidence that these lands were assigned by Government for the maintenance of the choukidars; also these lands are included within the kabuliyat given to the predecessors of the plaintiff.
6. The onus being on the Government to show that these are choukidari chakran lands, and the Government having failed to do so, the plaintiff is entitled to recover possession of them, The Commissioners appear to have been misled by the fact that in the definition of such lands in the Act it is not expressly stated that the lands must be assigned by the Government. As stated in the case of Kirtibas Bhupati (2):
It is clear from the language of Clause 4, Section 8, Regn. 1 of 1793 that the power or 'option' of resumption was reserved in respect of those lands that had been appropriated by the zamindar with the permission or under the authority of Government for the purpose of remunerating the choukidars for their services, lands which, although included in the mahal and annexed to the malguzari lands, were not taken into consideration for the assessment of revenue because in reality they formed no part of his assets.
7. In the present case, the record shows (and this is not denied) that these lands were actually taken into consideration for the assessment of revenue. There is no indication that in making the assessment any lands whatever were left out of account. The terms of the lease simply state that one consideration on which the kabuliyat was granted was that some provision was to be made by the zamindar for certain choukidari duties to be performed; but there is no specification that any particular lands were set aside for the payment to the choukidars appointed to perform those duties.
8. The manner in which the duties were to be performed appear to have been left to the zemindars. Undoubtedly inasmuch as it appears that the Government has taken over these choukidari duties, the Government may have a claim for additional revenue or rent on account of the performance of these duties from the zamindars as distinct from the ordinary choukidari tax which is levied from all the inhabitants of the district, inasmuch as one condition of the grant of these lands was the performance of these duties by the zemindars. But whatever claim the Government may have on that account, it does not appear to entitle the Secretary of State to resume any particular lands within the area which was granted under the kabuliyats. In the case already referred to Secy. of State v. Kritibas Bhupati Hari Chandan, in which it was sought similarly to resume lands as choukidari chakran lands, the plaintiffs protested strongly against the proceedings: whilst expressing their willingness to submit to any reasonable contribution that might be required of them for the payment of the choukidars who were to be appointed under the new system, they took exception to the Collector's attempts to resume and assess or re-assess their lands and it was held that in fact the Collector was not entitled to resume the lands. I think therefore that these suits have rightly been decreed by the Courts below and these appeals must accordingly be dismissed with costs.
9. I agree that in the peculiar circumstances of this case this appeal ought to be dismissed, though I coma to that conclusion not without considerable hesitation. It does appear from the order sheet in the proceedings before the Commissioners that what they were intending to do was to hold what is described at the head of the order-sheet as a choukidari chakran resumption proceeding'; and in those circumstances, I think it would be reasonable to presume that they were intending to ascertain what choukidari chakran lands, if any, in the Midnapore District could be resumed by Government. There is no doubt that the proceedings in question were held under the provisions of Section 58, Village Choukidari Act, and the Commission was set up under the provisions of Section 61 of that Act. Now, Section 58 authorizes the Local Government by an order published in the Calcutta Gazette to appoint a commission to ascertain and determine the choukidari chakran lands in any district or part of a district and Sections 59 and 60 relate to the questions that may be referred to the commission and the powers of the commission and lastly, Section 61 requires the Commission to determine three things viz., (a) what lands are choukidari chakran lands, (b) their extent and boundaries and (c) the name of the village for the benefit of which such lands are assigned. Had the Commissioners in the present instance definitely answered those; three questions, it is obvious to my mind that any conclusions at which they arrived would have been final and not susceptible to question in a civil Court. The real difficulty facing the defendant in the present case is, as my brother Jack has pointed out, that the Commissioners have not with sufficient exactitude answered the questions to which they ought to have applied their minds. It is true that it is arguable on behalf of the defendant that as these proceedings were 'choukidari chakran resumption proceedings,' the final opinion of the Commissioner, Mr. Banerjea, when he says that the lands as per schedule should be ascertained and recorded as choukidari chakran lands in this district, ought to be taken as an expression of the Commissioner's opinion that the lands set forth in the schedule are choukidari chakran in the sense that they are Government choukidari chakran lands liable to be resumed at the will of Government. But an examination of the earlier part of the Commissioners' report does seem to indicate that the Commissioner was proceeding upon a wrong basis altogether or rather that he did not sufficiently direct his attention to the question of whether the lands he was dealing with were merely choukidari chakran in the sense that they were occupied by the choukidars appointed by the plaintiff or whether they were choukidari chakran in the sense that the choukidars had been partly appointed by Government, or the lands had been assigned within the meaning of the section of the Act with which we are concerned.
10. I would however add that in not dissenting from the view expressed by my brother I am not purporting to lay down any general principle with regard to the law which should be applied to a case of this character but I do desire to say, I do not altogether agree with the view taken by the learned Judge who hoard this matter in the appellate Court below, that the proceedings were not in order because the Commissioners had not in terms found that the lands were assigned and had not in terms found that such lands were assigned before the passing of the Act of 1870. I am inclined to think, generally speaking that if a commission is set up under the terms of Section 58 of the Act, it must be taken that the Commissioner acting under the authority of that Act is setting out upon the task of ascertaining what are choukidari chakran lands within the meaning of that Act and therefore it was not necessary that he should always say in terms that the choukidari chakran lands which he has ascertained to exist were assigned before the Act of 1870. The fact that the Commissioner was purporting to act under the relevant section of the Act is, to my mind, sufficient to indicate what is the end and purpose of the task which he has taken upon himself. It is only because I agree that in this particular case the Commissioner does not seem sufficiently to have considered the relevant and material factors in his investigation that I come to the conclusion that there is no sufficient cause for interfering with the decisions of the Courts below. The appeals must accordingly be dismissed with costs.