1. The subject-matter of this litigation is a tract of alluvial land which has been assessed by the revenue authorities under the Bengal Alluvion and Diluvion Act, 1847. The order of the Board of Revenue under Section 6 of Act IX of 1847 is embodied in a letter dated the 28th November, 1912 and a petition by the plaintiff to review the decision was rejected on the 29bh June, 1914. The present suit was thereupon instituted on the 29th June, 1915, for declaration that the disputed tract was not 'added' land within the meaning of Section 6 of Act IX of 1847 and that the assessment was consequently without jurisdiction. The plaintiffs further prayed for consequential relief by way of refund of the sums paid by them, as revenue under protest. The suit was defended by the Secretary of State for India in Council on the merits as also on the grounds that the plaintiffs had no cause of action and no right of suit, and, further, that the suit was barred by limitation. On these pleadings, the following issues were framed:
1. Have the plaintiffs any cause of action?
2. Have the plaintiffs any right of suit in the present form?
3. Has the plaint been properly stamped?
4. Is the suit barred fey limitation?
5. Are the plaintiffs estopped by their own conduct from questioning the settlement?
6. Were the lands in suit permanently settled with the plaintiffs or their predecessors-in-interest?
7. Are the lands liable to assessment? If so, what should be the proper revenue for the lands, and at what rate, should land be assessed?
8. Whether the proceedings under Act IX of 1847 are legal and valid?
2. The Subordinate Judge first took up for disposal the first, second and fourth issues. Upon the first and second issues, he held that the plaintiffs had a right to sue. Upon the fourth issue, he held that the suit was barred under Article 14 of the schedule to the Indian Limitation Act. The result was that on the 12th December, 1918, the suit was dismissed without enquiry into the merits. On appeal to this court, Woodroffe and Walmsley, JJ., on the 7th February, 1921, set aside the decision of the Subordinate Judge. It appears to have been urged, on the One hand, that the facts found by the Subordinate Judge were not sufficient to show that article 14 governed the case; it was argued, on the other hand, that the suit might be barred under the one-year rule enunciated in Section 24 of Reg. II of 1819. The case was accordingly remanded for reconsideration of the question of limitation, and, should the point be decided in favour of the plaintiffs, for investigation on the merits. After remand, the Subordinate Judge has again dismissed the suit on the 30th September, 1921, without enquiry into the merits. He has held that Article 14 of the schedule to the Indian Limitation Act is not appropriate, but that the suit is barred under Section 24 of Reg. II of 1819, on the authority of the decision Prafulla v. Secretary of State (1920) 24 C.W.N. 813 On the present appeal, the plaintiffs have urged that Section 24 of Reg. II of 1819 has no application and does not bar the suit which should be investigated on the merits.
3. Before we deal with the question in controversy, we shall briefly state the history of the disputed property as narrated in the papers placed before us. On the 2nd September, 1828, the lands of what now constitutes estate No. 4537 of the Collectorate of Backergunj were resumed under Reg. II of 1819 and Reg. III of 1828; but the possession of the howladars, who had taken settlement in 1793 from the proprietors, was not disturbed. The proprietors declined to accept resettlement, with the result that on the 2nd January, 1835, a settlement of the resumed lands was made with the howladars. This was followed by a permanent settlement with the howladars on the 24th June, 1842. The case for the plaintiffs is that the lands now in suit were treated as included in their permaently-settled estate, at the time of the Thak Survey in 1859-60, the Revenue Survey in 1860-61, and finally the District Settlement Operation of 1900 which resulted in the final publication of a Record-of-Rights on the 17th February, 1905. The plaintiffs allege that, notwithstanding all this, on the 20th December, 1911, the Dearth Deputy Collector of Backergunj, in the course of proceedings initiated on the 2nd October, 1900, for a new survey under Section 3 of Act IX of 1847, served a notice upon them to the effect that the pods were outside the boundary of the Daemi Settlement of 1842 and were liable to be assessed with additional revenue under Act IX of 1847. Proceedings were there after continued under Act IX of 1847. The Deputy Collector made his report on the 20th March, 1912, and recommended an assessment of revenue. This was approved by the Board of Revenue on the 28th November, 1912. The decision of the Board was notified to the plaintiffs on the 20th February, 1913. The plaintiffs next submitted their objections on the 25th March, 1913, which proved infructuous, and on the 29bh June, 1914, the Board adhered to their previous decision. The plaintiffs accordingly commenced this litigation to test the legality of the action taken by the revenue authorities.
4. It is plain that if the allegations of the plaintiffs are well-founded, they have a pause of action and a right of suit : Secretary of State v. Fahamidunnissa  17 Cal. 590. This was decided in their favour by the fest Subordinate Judge on the 12th October, 1918, and his conclusion was not challenged before this Court when the appeal was heard by Woodroffe and Walmsley, JJ., on the 7th February, 1921. The defendant might have then attempted to support the decree of the Subordinate Judge on a ground decided against him. This course was not adopted and the question cannot now be reopened.
5. It is equally clear, as regards the question of limitation, that if the facts alleged. by the plaintiffs are established, the suit is not barred by Article 14, which provides that a suit to set aside any act or order of an. Officer of Government in his official capacity (not otherwise expressly provided for in the Indian Limitation Act) must be instituted within one year from the date of the act or order. This article applies to acts or orders done in the exercise of powers legally exercisable by the executive, in other words, the article applies to acts or orders which need to be set aside. The article has no application where jurisdiction has been usurped, and the order is ultra vires. An order made without jurisdiction is nullity and need not be set aside, to an order of this description Article 14 has no application. This view is supported by a long line of authorities; Laloo Singh v. Purna Chander  24 Cal. 149; Raj Chandra v. Fazijuddin  32 Cal. 716; Narendra v. Jogi  32 Cal. 1107; Alimuddin v. Ishan  33 Cal. 693; Ananda Kishore v. Daije  36 Cal. 726; Kirtibash v. Secretary of State  15 C.W.N. 300; Birbar v. Secretary of State  14 C.L.J. 151; Dhiraj v. Hari Dasi A.I.R. 1914 P.C. 30; Malikajeppa v. Secretary of State  36 Bom. 325; Dhanji v. Secretary of State A.I.R. 1921 Bom. 381; Secretary of State v. Gulam Rasul  40 Bom. 392; Vasireddi v. Secretary of State  37 M.L.J. 661 A useful analogy may be found in the class of cases where the legality of sales for arrears of revenue is called in question and the action of the revenue authorities is challenged on the ground of lack of jurisdiction: Balkisen v. Simpson  25 Cal. 833; Harkhoo v. Bunsidhur  25 Cal. 876; Baijnath v. Sital Prasad  2 B.L.R. 1; Mutasaddi v. Idris  19 C.W.N. 764; Annamalai v. Murugappa  38 Mad. 837; Mahadev v. Sadashiv A.I.R. 1921 Bom. 257. In my opinion there can be no room for serious controversy that Article 14 does not bar this suit. The only question thus left for consideration at this stage is whether the suit is barred by the one year rule embodied in Section 24 of Reg. II of 1819. The view taken by the Subordinate Judge that the suit is so barred, is supported by the decision in Prafulla v. Secretary of State (1920) 24 C.W.N. 813. But we cannot overlook that whenever this question has been raised, the point has either been left open or doubt has been expressed as to the correctness of the decision mentioned: Secretary of State v. Jatindra Nath  24 C.W.N. 737; Secretary of State v. Prafulla  24 C.W.N. 809, Secretary of State v. Annada A.I.R. 1921 Cal. 661; Secretary of State v. Upendra A.I.R. 1933 Cal. 247 and Sreenath v. Secretary of State A.I.R. 1923 Cal. 233. In these circumstances, we have been pressed by the appellants to examine the foundation of the decision in Prafulla v. Secretary of State (1920) 24 C.W.N. 813.
6. Section 24 of Reg. II of 1819 as modified by Reg. III of 1828 is in these terms:
24. First. - Persons whose lands may be assessed, either on failure to give security or to institute a suit within the prescribed time, shall nevertheless be entitled to sue at any time within one year from the date of their being informed of the Board's decision; but after the above period shall have elapsed, the decision of the Board shall be final and conclusive;
Provided, however, that in cases in which the party may be able to show good and sufficient cause for not having sued within the said period, such as minority or absence, no limitation as to time shall prevail other than that generally prescribed by the existing Regulations in regard to private claims.
7. This Section is manifestly not self-contained and must be read along with Section 22 which speaks of tender of security and institution of a suit in the following terms:
22. First. - If the party shall, within a fortnight of his receiving intimation of the Board's decision, tender to the Collector responsible security for the payment from that date of the jama which may eventually be fixed on the land, with interest at the rate of twelve per cent., and shall engage to institute a suit in the court in which the case may be cognizable within ten days, commencing from the date of the deed of security, or (if the court shall be shut, and shall not be opened until after the expiration of such ten days) within three days, calculating from the day on which it may be opened, to try the justness of the demand, the Collector shall leave the party in possession as before; reporting the circumstance for the information of the Board:
Provided, however, that in such cases the party shall produce all his accounts of collections for the information of the Col-lector in estimating the amount of the security to be required.
Second. - If the party be willing to give security for the portion only of the jama eventually assessable on the land, it shall be competent to him to do so on the conditions above specified.
In this case the Collector shall, under the orders of the Board, either hold the lands khas, or farm them for such period as the Board may direct, and shall pay to the party a portion of the collections proportionate to the amount for which he may be willing and able to give responsible security.
Third. - It shall be competent to the court to direct the Collector to take the security offered by the party, if he shall refuse to do so, and the court shall be satisfied that it is sufficient; but it shall rest with the Collector, subject to the directions of the Board, to fix the amount for which the surety is to be held bound.
Fourth. - The amount shall not in the first instance, exceed the estimated annual revenue assessable on the lands, or the amount receivable by the party in one year, with interest, but if, at the expiration of one year from the date on which the party may receive intimation of the Board's decision, the suit shall still be pending, it shall be competent to the Collector to require additional security for the same amount.
Fifth. - In mukarraris the parties giving security, and intending to sue, shall continue to pay the mukarrari jama, and will be required to give security for the remaining revenue which may be eventually demandable from them.
8. This Section mentions the receipt of intimation of the decision of the Board, and we are consequently referred back to the earlier provisions of the Regulation which describe the procedure to be followed by the revenue authorities for the resumption of lands held free of assessment under illegal or invalid tenure's, or the revenue of lands not included within the limits of estates for which a settlement has been made. The different categories of lands liable to resumption and assessment are sot out in Section 3 which ordains that lands not included in the Decennial Settlement or for which a distinct settlement may not have been concluded, are liable to assessment, excepting lands held free of assessment under a valid and legal title, and the same principle is made applicable to churs and alluvial lands, as also to lands included within taluks of a particular description. Sections 5 to 21 describe the procedure for enquiry and assessment. These will be presently analysed, but this much may be stated at the outset that the provisions are of a highly drastic character. The most remarkable feature of the system is that the revenue authorities are armed with power to decide the question of liability of land to assessment; subject, no doubt, to what is called an appeal, under extremely restricted conditions, to the ordinary judicial tribunals established for the investigation of controverted titles. We are not now concerned with the policy of the resumption laws, much less with the question, whether their stringency was or was not justified by the unsettled condition of the country towards the end of the eighteenth and the beginning of the nineteenth century. We must bear this in mind that the revenue authorities decided in the first instance, whether the subject was or was not liable to pay additional revenue to the Crown, and that, before he could test the correctness of the decision before a judicial tribunal, he had, upon pain of expulsion from his land; to tender responsible security, for payment of the revenue assessed and to engage to institute a suit to try the justness of the demand. This system was fundamentally altered in 1847 in respect of alluvial lands alone. The radical difference between the two systems, old and new, must be grasped, before we can determine, whether a provision appropriate to the old arrangements, such as Section 24 was, can be fittingly engrafted on the new organization. The answer, as we shall ultimately, see, must be in the negative.
9. To enable us to appreciate fully the change which was effected by the legislation of 1847, it is essential to recall the process of investigation and resumption in operation at that date. The procedure then followed is new a matter of forgotten history, and the requisite information can be gathered only from the Regulations and the Circular Orders; a full analysis of the relevant provisions will consequently be set out here.
10. First, as regards appointment of Collectors to commence investigations.
11. The rules which had been laid down in 1793, for the trial and decision of Resumption cases, having been found totally inadequate, the whole method of procedure was changed in 1819. In the preamble to that Regulation, (Regulation II, 1819, Preamble) the principles on which the resumption of lands was grounded, were recapitulated, and the following rules were enacted for carrying those principles into practice.
12. Whenever a Collector had reason to believe that there were lands lying within his jurisdiction, liable to assessment, either through being held under an invalid tenure, or at an inadequate jama, or on the principle described in Section 3 of that Regulation, he was to report the circumstances to the Board, who if they considered there were grounds for an enquiry, would direct him to investigate the case. (Reg. II, 1819, Section 5, Clause 1.). This was modified in 1825, when it was ordered that a Collector, engaged in making Settlements, according to Regulation VII, 1822, was empowered, without consulting the Board, to require, by a public notification all persons holding such tenures, to appear before him, and to produce the sunnuds or other writings by which they claimed to hold the lands rent-free or at a fixed jumma (Reg. IX, 1825, Section 5, Clause 2). The Collector was empowered either to complete the investigation, or limit his proceedings to certain points, When the investigation was postponed, due notice was to be given to the parties, previously to resuming the enquiry. On the failure of the party to attend, the Collector was at liberty to resume and assess the land. (Section 5, Clause 6). By the same Regulation, the Governor-General was empowered to vest any Collector making a local enquiry with the same power to investigate claims to hold lands rent-free, within the limits of the Muhal to which his control extended. And the Governor-General was generally at liberty to depute from time to time, Collectors, or other officers, to ascertain record, and investigate such claims (Section 6). The proceedings of all lands held free of assessment within all the villages or Muhals of which the settlement was made, were to be fully recorded in the proceedings of the Collector making the settlement (Section 7). By the law of 1828, the Collector was generally empowered to make all such enquiries regarding lands which he believed to be held free of assessment, or at an inadequate jumma, under an invalid tenure, without applying for the sanction of the Board ,in any district in which the jurisdiction of a Special Commissioner had been established (Reg. III, 1828, Section 4, Clause 1).
13. Second, as regards appointment of Special Deputy Collectors to investigate Resumption cases.
14. In 1837, Government remodelled the system which had been in operation, for the investigation and decision of all questions regarding tenures held rent-free, or at an inadequate jumma, and appointed Special Deputy Collectors, to relieve the Collectors from all duties connected with resumption. The Special Deputy Collectors were to exercise their functions independently of the Collectors, and on their arrival in the district, the authority of the Collectors over such cases was to cease, and they were directed to transfer all suits, then existing, and all registers and records, to the Special Deputy Collectors. Arrangements were at the same time made for transferring part of the Collector's establishment to them, but the Special Deputy Collectors were still to be left unshackled in the nomination of their subordinate officers, Their Sheristadars were to be remunerated with liberal salaries. All the enactments which had been passed for the Collectors, in regard of the resumption, were now made applicable to the Special Deputy Collectors. Several districts were allotted to each Special Deputy Collector. They were not required to transfer their Cutcheries to the particular district in which the tenures under enquiry might be situated, but the division of their time between the different districts was left to their discretion. When not moving about, however, their Cutcheries were to be established in the most central district, for the convenience of the community; and the public was to be kept continually informed of their movements. (Cir. Order No. 1, Jan. 2, 1837). Adverting to the lumping manner in which the Permanent Settlement was formed, and the want of ascertained landmarks, the Special Deputy Collector was placed on his guard against the frauds which were likely to be attempted, and was required to ascertain the existence and extent of lands claimed as rent free, before investigating the validity of the tenure. He was also desired to resort to actual measurement where it could be adopted without infringing the rights and privileges conferred by the Permanent Settlement. It was also directed that some Indian Deputy Collectors, and a suitable measuring establishment should be employed under the Special Deputy Collector. (Cir. Ord. No. 1, Jan. 2, 1837).
15. By a subsequent order, the Special Deputy Collectors were ordered to dispose of the cases of each district in succession, and invariably to hold their Cutcheries in the districts in which the cases lay. (Cir. Ord. No. 75, Nov. 20, 1838).
16. In reference to the question of measurement, it was explained, that it was not intended to prohibit the measurement of lands claimed to be held free or of the estates on which they abutted, when necessary, and that this measure was not at variance with the principles of the Permanent Settlement. The disinclination of the zemindar was not to be regarded as a matter of any consideration. On the contrary it was declared to be the duty of every such zemindar to assist Government in asserting its just claims. The Special Deputy Collector was also required to defer all Towfeer Investigations till the Lakheraj cases had been disposed of. (Cir. Ord. No. 71. Aug. 22, 1837). It was also ruled subsequently that the Special Deputy Collector was to undertake the management of all cases of resumption, including those which had been decided by the Collector, before he assumed office. The Special Commissioner was therefore directed to make all references to the Special Deputy Collector; (Cir. Ord. No. 40, May 30, 1837) and a sum of Rupees fifty a month was sanctioned for Cutchery hire. (Cir. Ord. No. 22, April 18,1.837).
17. The Special Deputy Collectors were directed to proceed according to the Rules laid down for the Collectors, in Reg. II, 1819, Reg, IX, 1825, Reg. III 1828, and in subsequent orders. These rules are given below. Wherever therefore the word Collector, occurs in them, the words Special Deputy Collector must be read in its stead.
18. Third, as regards Preliminary Proceedings.
19. The Collector was directed to summon the party by a notice, stating the public demand, and requiring him to appear in person, or by vakil, in a month, and produce the sunnuds or other writings connected with the tenure. (Reg. II, 1819, Section 5, Clause 2). If the party had an accredited agent at the Sudder Station, with general powers to act, the notice was to be tendered to him, to be communicated to his principal. (Section 5, Clause 3). If the party had no such agent, or the agent refused to receive the notice, it was to be served on the party, through the Nazir, by a single peon, who was to demand acknowledgment from him or from his principal agent. If he resided in another Collectorate, it was to be served through the Collector of the district in which he resided. If he was nowhere to be found, it was to be served on the agent in charge of the lands. (Section 5, Clause 4). If the party or his agent refused to acknowledge the receipt of notice, the tender of it was to be proved by two witnesses, which was to be considered sufficient. (Reg. II, 1819, Section 5, Clause 5). No tulubana was to be charged on the party for the peon serving the notice. (Cir. Ord. No. 68, Oct. 15, 1830). The party was to be warned, that if he neglected to produce any writings within the specified time, they would not be subsequently received, without sufficient reason assigned for withholding them. (Reg. II, 1819. Section 5, Clause 6). These rules were partially modified in 1825, and it was ordered that the Collector making settlements might, by a general notification, require all persons holding lands free of assessments or at a fixed rent, to attend him within a month, either in person or by agent; from day to day, with their sunnuds, and other writings connected with their tenures, and any evidence they might wish to offer of their claims. (Reg. IX, 1825, Section 5, Clause 2). When the Collector engaged in the settlement, was prepared to hear the claims of persons thus holding lands, he was on the day previous to that on which he intended to hold proceedings, to notify such intention by an Istehar. (Section 5, Clause 4). But in 1838, the Board ruled that the issuing of the notice, ordered as above by Reg. II, 1819, Section 5, should not be dispensed with (Cir. Ord. No. 71, Oct. 23, 1838).
20. If the party to whom the notice was issued, as ordered in Regulation II, 1819, absconded or concealed himself, so that the notice could not be served, a proclamation was to be affixed, with a notice, in a conspicuous part of his Cutchery, stating that if he did not appear by a certain day, the case would proceed ex-parte. The proclamation was also to be affixed at the door of his usual residence, and at a conspicuous place of the village within or near the lands. (Reg. II, 1819, Section 6, Clause 1). If the party did not appear within the time specified, or if appearing, he refused to make answer, the Collector was to proceed ex parle, as though he had appeared and answered. (Section 6, Clause 2). These rules were partially modified in 1825, when it was ordered that if any party failed to attend after the general notice, the Collector was at liberty to proceed ex-parte, to investigate the title, and if defective, to resume the lands, with the Board's sanction. No person, thus defaulting, was to be allowed to stay resumption and assessment by Regulation II, 1819, Section 22. But the rule of Reg. II, 1819, Section 13, Clause 2, was to be applicable to such persons as well as to those who appeared when summoned. (Reg. IX, 1825, Section 5, Clause 5). The Collector making such settlements, was at liberty either to complete the investigation, or to limit himself to ascertaining the land actually held under the tenure and recording the title-deeds produced. On postponing the investigation, he was to notify to the party when it would be resumed; at least, before resuming it, he was to give a month's notice, and on the party's failing to attend he was to proceed ex parte, and, if the Board allowed him, to resume the lands. (Section 5, Clause 6).
21. With regard to Towfeer lands, the Collector was to institute a particular enquiry into the circumstances and condition of the land at the time of the Decennial Settlement; and, in cases of alluvion at the time of its formation; (Reg. II, 1819, Section 7) and, with the sanction of the Board, to cause a survey and measurement of these lands and of the estates to which they were said to belong (Section 8).
22. Regarding the mode in which the Collector was to proceed in order to obtain the necessary deeds, documents and accounts, the following enactments were passed. The Collector was to summon the putwary, gomastah, or other person in charge of the accounts, require him to produce all such accounts and examine him on oath to the truth of them. (Section 9). He was at liberty with the sanction of the Board, to summon the proprietor or farmer to attend personally or by vakil, and produce all his accounts. (Section 10). The proprietor, farmer, patwary, or gomastab, was to be summoned with a written notice, stating the purpose of his attendance and the papers he was to bring with him. Section 11, Clause 1. Such notice was to be served in conformity with Reg. XIV, 1793, Section 3, only that the parties were not to pay the peon. (Section 11, Clause 2). If any patwary, gomastah or other person in charge of the accounts, being thus summoned, neglected to produce the original accounts, or to give evidence, or gave false evidence on oath, or falsified, altered or fabricated accounts, he was to be dealt with in the way prescribed in Reg. XII, 1817, Sections 23, 96, 27. (Section 12).
23. If the holder of any lands, the subject of enquiry, refused to furnish the accounts, the Board might direct the lands to be immediately attached, and the rents to be collected on account of Government, in the same manner as if the lands were public property. In such cases the Collector was to make full enquiry into the title of the holder, and report to the Board, who were to decide whether the lands were assessable. (Section 13, Clause 1). If the holder of the land refused to attend in person or by vakil, or to furnish the documents, the Board might subject him to a daily fine, to be levied when approved by Government. (Section 13, Clause 3). On the construction of this rule, a long correspondence passed in 1837 between Government and the Board. The Board contended, that the words collected on account of Government, as if the lands were public property' meant simply that they should be collected in the same manner as the rents of khas estates were collected, and not that the rents thus collected should belong to Government, even if the land was eventually adjudged to pay rent; that for with holding accounts, a punishment had been ordained in the shape of a fine; and that to add to this the deprivation of the rents while the land was under attachment, would be to lay on a double penalty for the same offence. The Government, however, still adhered to its opinion that these collections were the property of the State, but ordered the matter to be referred to the Sudder Dewany Adawlut, who ruled that when an estate was thus attached for non-production of papers, the mesne profits should belong to the parties in whose favour the lands were eventually adjudged (Cir. Ord. No. 48, June 6,1837). If the holder instituted a suit in court to contest the decision of the revenue authorities and produced other documents besides those delivered in, they were not to be received in evidence, or to have any weight, unless he showed sufficient cause for not having produced them before (Reg. II, 1819, Section 13, Clause 2). If any zemindar resisted or caused to be resisted the attachment or measurement of his lands, or any process to compel any patwary to produce accounts, the Board might fine him; but if the fine exceeded Rs. 500, the Board were to submit it for the sanction of the Governor-General (Section 14). The Collector was to resume no lands when the parties confessed them liable to assessment, without the sanction of the Board: on such confession, the Board might order them to be assessed, unless they were held by village or zamindari servants, in lieu of wages. When the resumption of lands appeared likely to occasion serious distress to the holders, a report was to be made to Government. (Reg. IX, 1825, Section 5, Clause 8). No stamp paper was to be used in resumption cases originating with a Collector; but witnesses might be awarded their reasonable charges, which, as well as costs, were to be levied like arrears of rent. (Section 5, Clause 10).
24. Fourth, as regards Examination of the Validity of Documents.
25. If it appeared that the grant of any Hookamee tenure was forged, or the name of the grantee erased, or the denomination or date had been altered, the grant was to be considered null and void; (Reg. XIX, 1793, Section 17) and any person who might have been concerned in the fraud was to be criminally prosecuted. (Section 18). The same rule was passed regarding Badshahee tenures, (Reg. XXXVII, 1793, Sections 12, 13) and extended to Benares, (Reg. XLI, 1795, Sections 17, 18, and Rag. XLII, 1795, Sections 12, 13).
26. When any written document was produced purporting to be a firman of the King of Delhi, or a grant of any vizier, nabab or raja, the authorities were to test its validity by their records, and by the examination of living witnesses, and not receive it in evidence merely on the credit of the seal, or other attestations impressed on it. (Reg. II, 1819, Section 28, Clause 1). But no such document was to be received or faith given to it, unless it could be proved to have been duly registered, or due cause could be shown for non-registry. (Section 28, Clause 2).
27. Fifth, as regards Investigation.
28. When the party appeared fn compliance with the Collector's requisition and delivered up his documents, the Collector was required to give him a receipt for them: and after examining them to give him a statement of the grounds on which he deemed the grant resumable, requiring him to deliver an answer in seven days. (Reg, II, 1819, Section 15). The Collector was duly to number, mark, date, and sign the deeds thus produced, and insert in his proceedings their title and number; and before proceeding to judgment, was to warn the party that no other accounts or written evidence would be afterwards received by any Court, unless he could assign good reason for not producing them before. (Section 16). On receiving the reply of the party the Collector was to summon witnesses both on the part of Government and of the holder of the lands and judicially take their depositions before the party or his vakil. (Section 17). The Collector was carefully to examine the deeds and to allow the party to inspect all the documents on which he relied in proof of the liability of the lands to assessment. (Section 18). The Collector might summon witnesses and administer an oath or solemn declaration to them according to the Regulations, sending refractory witnesses for punishment to the Judge. (Section 19, Clause 1.) Any person giving a false deposition on oath, or causing another to do it, was to be liable to punishment according to the Regulations. (Section 19, Clause 2). Persons resisting the process of the Collector were in addition to the penalty prescribed in Section 14, liable to the penalties prescribed in Reg. XIV, 1793. (Section 19, Clause 3). In oases investigated under Regulation IX, 1825, or under Reg. II, 1819 the provisions of Clause 1, Section 23, section 25, and Section 28, Reg VII, 1822, were applicable; (Reg. IX, 1825, Section 5, Clause 9) viz.
29. The Cutcherry of the Collector when investigating Lakheraj tenure, as it regarded witnesses, resistance of process, contempt, &c.;, &c;, &c.; was to be held a court of Civil Judicature, and his decisions, judicial awards. Parties in suits tried by the Collectors, might employ what vakils they liked and remunerate them as they wished, but the party was not to be liable to higher costs than the Collector thought reasonable. Collectors might try suits in any part of the district, but only in open Cutcherry, and in presence of the parties or their agents.
30. Sixth as regards proceedings of the Collector (Special Deputy Collector) after investigation, in districts not within the jurisdiction of a Special Commissioner.
31. The proceedings of the Collector after investigating the claim, were of one kind in the districts to which the jurisdiction of the Special Commissioner did not extend, and of a different kind in districts to which his jurisdiction did extend. With regard to the former, it was enacted that the Collector, having closed his investigation, should record his opinion, and the grounds of it in a Persian Roobukaree, and forward his proceedings to the Board, giving the party interested a copy of his Roobukaree. (Reg. II, 1819, Section 20.) The Board, after calling, if necessary, for further evidence, was to fix a day, not less than six weeks after the Roobukaree had been delivered to the party; and after hearing what he might have to urge, to pass judgment, and record it in a Persian Roobukaree to be delivered to the party. (Section 21, Clause 1.) The final Roobukaree of the Board and Collector was to contain the subject-matter of the case, the grounds of decision; the names of the witnesses heard, and the titles of the documents exhibited. (Section 21, C1ause 2). The decision of the Board, if pronounced against assessment, was to be final, except when fraud and collusion were proved in a Court of Justice. (Section 21, Clause 3). If the Board decided in favour of assessment, the Collector was to inform the party of the decision and proceed to assess the land on the principles of the Regulations. (Section 21, Clause 4). If the party a fortnight after receiving the decision of the Board offered the Collector security for the rent which might be assessed, with interest, and engaged to institute a suit to contest that decision, the Collector might leave him in possession of the lands, he producing his accounts of collections to regulate the security, (Section 22, Clause 1.) If the party gave security for a part of the rent, and the lands were held khas, or let in farm, a portion of the rent corresponding with the amount of his security, was to be paid him. (Section 22, Clause 2). If the Collector refused to take security, the Appellate Court might order him to do so, if satisfied that it was sufficient; but the Collector and the Board were to fix the amount of it. (Section 22, Clause 3). The security was to be equal to one year's rent with interest; but if the suit was prolonged beyond a year, the Board might demand additional security. (Section 22, Clause 4). In the, case of Moourrerees, the appealing party was to pay the usual jumma and to give security for the remainder. (Section 22, Clause 5). Parties bringing a suit to contest the decision of the Resumption Officers were to write their petition of plaint on a Rupee Stamp. (Section 27). If the party gave no security or neglected to sue, the Collector was to proceed to the final assessment. (Section 23). Those whose lands were assessed, either through failing to give security or to sue, might still sue within twelve months; failing which; the Board's decision was to be final and conclusive. But, when good reason, such as minority or absence, could be given for not suing, no limitation of time was to prevail other than the general limitation in the Regulations. (Reg. II, 1819, Section 24, Clause 1.) The same law was extended to cases connected with Reg. VIII, 1811; Reg. V, 1813; and Regs. XI and XXIII, 1817. (Section 24, Clause 2).
32. The enactment of 1828 made some important modifications and alterations in these rules, by ordaining, that in all cases as above, in which the Board had decided in favour of assessment, its judgment should be carried into1 immediate execution whether the party sued to contest it or not; and that he should not retain possession of the land, except on entering into engagements to pay the assessment fixed on it. If any party against whom the Board had decided, refused to pay the assessment, ho was to be dispossessed. If by a final decree the tenure was exempted from rent, the net collections made by Government were to be refunded with six per cent, interest. (Reg. III, 1828, Section 10, Clause 2). All suits instituted in any court to contest the decision of the Board, according to Reg. II, 1819, Sections 22 and 24 and Reg. IX of 1825, Section 5 (except where the jurisdiction of the courts was barred by Regulation III of 1828) were to be heard and determined as regular appeals; no further pleadings were to be allowed than the objection of the appellant, and the Board's reply. The courts were to receive no new oral or documentary evidence unless it had been tendered to the Board and refused by them. (Section 10, Clause 3). But this was not to bar the right of the Board to a further appeal to the Provincial Court and the Sudder Court, in cases mentioned in Section 6, Reg. XIV. 1825, nor the admission by those courts of a special appeal by the party cast under Section 26, Reg. II, 1819. (Section 10, Clause 4). Appeals against the decision of the Board were to be kept on a separate file and the courts were to appropriate a day in the week to hear them, and strictly to enforce Section 12, Reg. XXVI, 1814. (Section 10, Clause 5). At a subsequent period the Board requested the Revenue Commissioner to inform the Resumption Officers that their time would better be employed in hearing and deciding cases that had been admitted, than in the admission of new ones. (Cir. Ord. No. 45, Sept. 6,1831).
33. In 1829, all the powers vested in the Board by Reg. II of 1819, and IX of 1825, relative to the investigation and decision of claims to hold landi on a free tenure, or at a fixed jumma, were transferred to the Revenue or Local Commissioners (with the exceptions provided for in Reg. III, 1828), and the Collectors were directed to transmit to them the reports and proceedings, formerly sent to the Board. (Rules of Practice, No.17, Rule 36). The Revenue Commissioners were at liberty to sanction the resumption of lands by a Collector unless the Board admitted an appeal, and the parties whose lands were assessed were at liberty to institute a suit in the courts to try the decision within the period mentioned in Reg. II of 1819, Section 22, Clause 1 (Rules of Practice No. 7, Rule 37).
34. Seventh, as regards proceedings of the Collectors, after the investigation of claims, in districts within the jurisdiction of a Special Commissioner.
35. By Regulation III of 1828 the mode of proceeding prescribed in 1819 and 1825, was materially altered. Special Commissioners were appointed instead of the courts, to hear appeals from the decisions of the Collector, and next year the change was completed by the appointment of Revenue Commissioners, to whom the same reference was to be made which had been previously made to the Board. We have given above the old mode of procedure, which was to continue in force in districts, not under a Special Commissioner; but as the jurisdiction of the Special Commissioner was extended to almost every district in India, the following rules were considered applicable in almost every case of Resumption.
36. Whenever the jurisdiction of a Special Commissioner had been established in any district, the Collector might institute enquiries regarding land held on a. free tenure, or at an inadequate jumma, without the sanction of the Board of Revenue, but in all other respects he was to proceed according to Reg. II, 1819, and Reg. XIV, 1825. Having closed his proceedings, he was to record his opinion in a Roobukaree, as directed in Section 20, Reg. II, 1819. His decision was to have all the force and effect of a decree, and a copy of it was to be delivered to the party on plain paper. (Reg. III, 1828, Section 4, Clause 1). If this decree declared the lands liable to assessment, or to be the property of Government, a copy of it need not be sent either to the Board or the Special Commissioner but the party cast might appeal to the Special Commissioner, in two months after receiving the decree, or later, with his permission. The appeal might be presented to the Special Commissioner, or delivered to the Collector, (Section 4, Clause 2). By a Circular Order of 1840, the Board of Revenue decided that the Resumption Officers; in directing with whom the settlement was to be made, had exceeded their powers and that they were competent only to decide upon the liability of land to assessment or not, (C.O. No. 13, March 18, 1840). The Collector, whether the case was taken on appeal or not, was at liberty to carry his decision into execution, attaching and assessing the land, and reporting his proceedings to the Board. The Special Commissioner, in cases appealed to him, might stay the execution of the decree, and suspend or withdraw the attachment on adequate security being given. (Reg. III, 1828, Section 4, Clause 3). If the Collector decided against assessment, he was to report the case to the Board, who, if they considered the reasons of the Collector for non-assessment, inadequate, might, within twelve months, appeal to the Special Commissioner, who was to issue a notice, requiring the parties in whose favour the Collector had decided, to attend and reply to the appeal. On their non-attendance, the case was to be decided exparte. (Reg. III, 1828, Section 4, Clause 4). By the Rules of Practice, it was provided specifically that the Collector, if the lands lay within the jurisdiction of a Special Commissioner, should on deciding in favour of assessment report his decision to the Revenue Commissioner.(Rules of Practice, Rule 38). If he decided against assessment, he was to report his proceedings of the Revenue Commissioner, who if he disapproved of the decision, was at liberty to refer it within a year to the Court of the Special Commissioner for revision and final orders (Rule 39). This rule was anew enforced by the Board in 1837 (Cir. Ord. No. 43, June 1, 1837). When it happened that the Revenue Commissioner and the Special Commissioner were the same person, the Collector, on deciding against assessment, was to report his proceedings to the Board of Revenue, who if they disapproved of the decision, might appeal to the court of the Special Commissioner. (Cir. Ord. No. 66, Oct. 1, 1830). The Revenue Commissioner was not at liberty to order a Collector to revise his decision. He might call on the Collector for all the information necessary to enable him to decide, on a review of the grounds of the decision, whether it should be appealed or not. But the appeal must be made within the twelve months, and the Revenue Commissioner was specially required to make the appeal, if necessary, within the year. With the exception of the power of being able to order a review of judgment the Special Deputy Collector was as much subject to the Revenue Commissioner as any other Collectors. (Cir. Ord. No. 52, June 10, 1837). The prohibition of the Revenue Commissioner to order a Special Deputy Collector to retry a case was anew repeated in 1840. (Cir. Ord. No. 10, Feb. 29, 1840). In June, 1838, the Board ordered that in all cases in which the Revenue Commissioner pursued this course, he should send the Board a statement of the grounds of his dissatisfaction with the Collector's decision, that the necessary pleadings might be prepared and filed in the Commissioner's Court. (Cir. Ord. No. 43, June 16, 1838). But this rule was modified in 1839, and it was ordained that the Revenue Commissioner if he disapproved the grounds of the Collector's decision, should report the case to the Sudder Board, who would determine whether an appeal should be preferred to the Special Commissioner, (Cir. Ord. No. 1, Jan. 8,1839.)
37. If the proprietor of the estate in which a rent-free tenure existed, was a minor, the investigation of it was not to be delayed, but the suit was to be defended by the Court of Wards through their Deputy Superintendent of Legal Affairs. The Special Deputy Collector in this case was to sand a copy of his decision to the Collector, Cir. Ord. No. 1, April 17, 1839;.
38. If the Revenue Commissioner thought that the resumption of any rent-free tenures would occasion distress, he was to make a report to the Board, who would submit the case to Government. (Rules of Practice, Rule 40).
39. As the Special Deputy Collectors were in no wise subject to the direction or control of the Board in the exercise of their judicial functions, the Board declined to lay down an authoritative digest and construction of the Resumption laws, but at the request of Government agreed to furnish instructions to them, and to the Revenue Commissioners on all matters of practice or procedure, and to give the Special Deputy Collectors, their opinion in all cases of legal difficulty, it being however optional with them to receive the advice or not. (Cir. Ord. No. 67, Aug. 2, 1837). No resumption cases were to be decided when the Civil Courts were shut, but preliminary enquiries might be carried on, either at the Sudder Station or in the Mofussil. (Cir. Ord. 21, March 28, 1837). This was subsequently explained by the Board; and it was ordered that when the parties were voluntarily in attendance, while the Civil Courts were closed, the Resumption Officers might try and decide the cases, (Cir. Ord. No. 61, Sept. 4, 1838). The Revenue Commissioners were at liberty to order the Collectors to make advances to the Special Deputy Collectors of such sums as were required for temporary disbursements; but not to sanction any new charges, temporary or permanent. New miscellaneous charges beyond Rs. 500 were to be submitted to the Board in the first instance. (Cir. Ord. No. 31, May 9, 1837). The Special Deputy Collectors were especially forbidden to levy Tulubana. (Cir. Ord. No. 56, June 20, 1837).
40. Eighth as regards measurement and disputed boundaries.
41. On the subject of measurement, it was ordained in 1835, that the Collector engaged in the settlement of a Mehal was at liberty to measure all lands, Malgoozaree, or Lakheraj, belonging to or adjoining the village, in which the Mehal or part of it was situated, without reference to the Board. (Reg. IX, 1825, Section 5, Clause 3). On the appointment of Special Deputy Collectors, the Board, adverting to the lumping manner in which the Permanent Settlement was formed, and the want of ascertained and recorded land marks, stated that there would be great difficulty in identifying lands. The Resuming Officers were therefore to be on their guard against frauds, and to ascertain the existence and extent of lands claimed as free, before they investigated the claim. When the parties in possession did not point out the lands and define the boundaries, recourse was to be had to measurement, where it could be done without infringing the rights and privileges of the Permanent Settlement. To conduct preliminary enquiries, it was recommended to employ one or more un-covenanted Deputy Collectors, with a measuring establishment. (Cir. Ord. No. 1, Jan. 2,1837). On the subject of measurement it was subsequently explained that the measurement of lands claimed as free, or of the estate on which they abut, when necessary to determine the Lakheraj claim, was not intended to be prohibited as such a proceeding was not considered repugnant to the faith of the Permanent Settlement. (Cir. Ord. No. 71, Aug. 22, 1837).
42. Respecting the decision of boundary disputes in regard to lands liable to assessment under Reg. Ill, 1828, the Board directed in 1833, that they should be disposed of under the direction of the Special Commissioner. (Cir. Ord. No. 29, Nov. 12, 1833) Government subsequently decided that in all such oases of disputed boundaries application must be made to the final Resumption Tribunal (the Special Commissioner) who would either decide summarily in execution of his own decree, or order the institution of a new suit. (Cir. Ord. No. 68, Oct. 16. 1838). The order was subsequently modified by the Government of Bengal at the suggestion of the Supreme Government; and it was directed that when an enquiry into the liability of land to assessment under Reg. II, 1819, had been instituted, the Resumption Officer was to establish the position, extent or existence of the land by survey and measurement, if it had not been done before, previously to passing a decision. The Resumption Courts were to execute their own decrees. But if a Lakhrajdar denied that the land included in a decree was in his occupation, but said that it was in that of another who was no party to the suit, such land could not be subject to assessment without a fresh suit against the party in possession. (Gk. Ord. No. 23, Sept 11, 1839).
43. Ninth as regards Special Commissioners.
44. In 1828 it was resolved to appoint Special Commissioners to hear and determine finally all cases of resumption; and it was enacted that [Reg. III, 1828 (Preamble)] the Governor-General in Council might appoint one or more Special Commissioners for the final determination of all cases investigated by Resumption Officers under the fifth and fifteen subsequent sections of Reg. II, 1819 and Section 5, Reg. IX, 1825. The Special Commissioner was also to decide all cases brought to contest the demand of the Revenue Officer on the plea that the demand was more than the party was bound to pay and which involved the question of a permanent increase or decrease of the public revenue. (Reg. III, 1828, Section 2, Clause J). The jurisdiction of the Special Commissioner was to extend to the districts selected by the Governor-General, who might fix and appoint the functions of each Commissioner and assign him local jurisdiction. (Section 2, Clause 2). When a Special Commissioner was vested with jurisdiction by the Governor-General in a district or division, notice was to be given by the proclamation in all courts, civil or fiscal. (Reg. III, 1828, Section 2, Clause 3). When notice has been thus given of the appointment of a Special Commissioner, the powers vested in and exercised by all those Courts of the nature cognizable by the Special Commissioner, was to be suspended, and the proceedings stayed, till they were informed that the jurisdiction of the Special Commissioner had ceased. The courts were to transmit to the Special Commissioner all records of such oases pending before them. And no appeal was to lie to any established Court of Judicature from any decision passed by the Revenue Board or Collector regarding the revenue of lands, previously to or pending the appointment of the Special Commissioner. (Section 2, Clause 4). Cases decided by the Board before the jurisdiction of a Special Commissioner was established, and which would have been appealable to the Courts of Justice by Sections 22 and 24, Reg. II, 1819, and Section 5, Reg. IX, 1825, were to be appealed to the Special Commissioner, and heard and determined like appeals from Collectors. (Section 2, Clause 5). This rule again was modified in the next year, and a special provision was made to suit the case of a Special Commissioner who might be called upon to hear and decide an appeal from his own act and judgment done or passed while he was Collector or Member of the Board of Revenue, or Judge of a Zillah Court, or of a Provincial Court. (Rag. IV, 1829, Section 2, Clause 1). In such cases the Special Commissioner was to report the case to Government, who would direct some other Special Commissioner, or other tribunal to decide it. (Section 2, Clause 2). Notice of the appointment of a Special Commissioner was also to be communicated to the Board of Revenue, and the powers vested in the Board by Regulation II of 1819, and Reg. IX of 1825, (except Section 4 of the last mentioned Regulation) were to be suspended; all proceedings in those oases then pending before the Board were to be stayed, and all cases of the nature described in the preamble to this Regulation; transmitted to the Special Commissioner. (Reg. III, 1828, Section 2, Clause 6). In suits thus transferred by the Courts or the Board to the Special Commissioner he was to decide upon the remuneration due to the vakeels employed in conducting the suits before the Court or Board, and generally how costs previously incurred should be borne. The sums in deposit for fees were to remain till the case was decided, (Section 12, Clause 7). The Governor-General might invest the Special Commissioner with any or all the powers of the Board (Section 3).
45. With regard to the decisions of Special Commissioners, it was ruled that in all cases decided by them, of whatever kind, their award should be final, 'except in cases of such an amount that, if passed by the Sadder Court, they would be appealable to the King in Council. Such cases might be taken on appeal to England, but the awards were to be executed and enforced notwithstanding the appeal. A Special Commissioner might review his own judgment, upon sufficient reason being shown for a new trial. (Reg. III, 1828, Section 4, Clause 5). When a decision passed by a Collector, Board, or inferior court had been appealed to a higher court, and the appeal had bee n transferred to the Special Commissioner, if he coincided with the decision of the inferior court, the decision of a single Special Commissioner was to be final, except when appealed to England. But when the Special Commissioner believed that the last award ought to be reversed, or altered, the case was to go before another Special Commissioner; if he disagreed with the first, to a third, so that it might be decided by the concurrent voices of two Special Commissioners. The Governor-General might on appointing a Special Commissioner, fix to what other Special Commissioner such cases of difference were to be referred (Section 4, Clause 6). The Special Commissioner might send such instructions to the Collectors within their jurisdiction in reference to cases investigated under Reg. II of 1819, and Reg. IX of 1825, as they deemed fit, and if necessary, refer cases to them for retrial. (Section 6, Clause 2). The Courts and Revenue Officers were to afford the Special Commissioner all aid and information required, serve all processes as if issued by themselves, prepare and transmit all required lists of cases decided or pending before them, and furnish all papers and documents. (Section 7, Clause 1). The Special Commissioner might require the Zillah Courts or Collectors to examine witnesses on written interrogatories, to enquire and report on particular points, just as the courts are required to do on the receipt of precepts from a higher court. (Section 7, Clause 2.) All precepts issued by the Special Commissioner to Collectors and Deputy Collectors (except the Resumption Special Deputy Collectors directing Mofussil investigations) were to be issued through the Revenue Commissioner, who was to attend to them; and inform the Special Commissioner of the period fixed for the deputation of Collectors and Deputy Collectors on these duties and the impediments which might prevent the execution of them within the time proposed. (Cir. Ord. No. 4, Jan. 9, 1837). The process of the Special Commissioner was to be enforced in the same manner and under the same sanctions as the process of the Courts of Justice; and the powers of those Courts regarding contempt, summoning and examining witness, and administering oaths, were vested in the Special Commissioner. (Reg. III, 1828, Section 6, Clause 3). The Special Commissioner was directed to order the Zillah Court to execute his decisions, and those courts were to execute thorn as they did those of the Provincial and the Sudder Courts. (Section 6, Clause 4). The rules in the Regulation relative to the Native Officers of the Zillah Courts were made applicable to those officers of the Special Commissioners, except when they might, with the sanction of Government, determine otherwise, (Section 6, Clause 5). All persons guilty of perjury or subornation before a Special Commissioner were on conviction to be punished according to the Regulation. (Section 6, Clause 6). The Commissioners might commit such persons for trial, and any Magistrate receiving a Roobukaree from a Commissioner ordering commitment, was to act on it. (Reg. III 1828, Section 6, Clause 7). The Special Commissioners were to furnish Government with such statements and reports as might be ordered. (Section 8.) The Special Commissioner was, previous to entering on his office, to take the oath prescribed by the Governor-General. (Section 9). The Revenue Commissioner might authorize disbursements which had been directed by the decrees of the Special Commissioners. (Cir. Ord. No. 64, July 25, 1837).
46. A Government Agent was directed to be appointed at the Cutcherries of the Special Commissioner, who was to receive his remuneration chiefly through means of a percentage on all the cases pleaded by him, the final decision of which produced a clear addition to the public revenue. The scale of remuneration sanctioned by Government was that proposed by Mr. Molony on the 9th August, 1828. (Cir. Ord. No. 10, Feb. 5, 1830). But as the Government Pleader was to be paid by a percentage calculated on the actual rent assessed on the lands, and as the assessment of many estates was delayed, he was kept long out of his money. This was represented by the Special Commissioner of Patna, as a hardship and a discouragement. A long correspondence was the result of this representation, and it was at length decided by Government, that ten annas per bigha of land in cultivation was to be the basis on which the remuneration of the Government Pleaders in the Courts of Special Commissioners should be calculated; and that all arrears due to that date were to be calculated at that rate. (cir. Ord. No. 72, Aug. 22, 1837). It was also ordered that when the Revenue Commissioner appealed against any decision passed by a Resumption Officer against Government, he should, by a perwannah to the Government Agent, set forth clearly the grounds on which he rested his petition of appeal. The Revenue Commissioner was also to notice all cases in which the Government Agent did not return the proposed pleading in the time specified in the Purwannah. Having received the pleading, the Revenue Commissioner was to revise and correct it, and either record his approval or prepare an amended one, an forward it to the Government Agent to be filed in the Court of the Special Commissioner. (Cir. Ord. No. 55, Nov. 16, 1835).
47. Tenth, as regards Rules of Practice in the Courts of the Special Commissioner. The Special Commissioner was to be guided by the rules prescribed by the Governor-General regarding the form of proceeding, the nature and number of pleadings, the paper, stamped or plain, to be used, the fees, and generally the Rules of Practice to be followed. (Reg. III, 1838, Section 6, Clause 1), The several cases received for trial by the Special Commissioner were to be numbered and entered on separate file books; one for Lakheraj Lands, or tenures claimed to be held free; one for claims to hold land at a Mocurreree jumma or to resist assessment on the plea that it was included in settled estates as Halabad, Noabad, Towfeer and Puteetabadee; one for Churs and Jungle lands. Each file was to be kept according to a form annexed. (Reg. III, 1828, Rules of Practice. (Section 1). The Commissioner was to entertain a Mohafez Duftur, who was to have charge of the Records of cases. All officers employed by the Commissioner were to be exclusively under his control. (Section 2).
48. Eleventh, as regards Rules for admission of Appeals.
49. When the record of a case was transferred by a Court of Justice to a Special Commissioner, he was to acknowledge the receipt of it, and to request the court to intimate the transfer to the parties concerned. The Special Commissioner was also to issue a notice, to be served through the Zillah or City Court, ordering their attendance to prosecute or defend the suit. The suit was to be served as hereafter directed (Section 3). In cases transferred by the Board of Revenue to a Special Commissioner, the Board was to notify the transfer to the parties, and notices as above were to be issued to them by the Special Commissioner through the Zillah or City Court. (Section 4). When any person, dissatisfied with the decision of a Collector, presented a petition of appeal to the Collector, under Reg. III, 1828, Section 4, Clause 2, that officer was to retain a copy of the record of the case in his own office and transmit the original, with a list of the papers it contained to the office of the Special Commissioner. The Collector was to be specially careful that all Sunnuds and other documents were accurately and faithfully copied for record in his office. The original record was to be sent to the Special Commissioner in all practicable cases in fifteen days from receiving the petition of appeal. (Section 5). The day the original record in an appeal case was sent to the Special Commissioner, the Collector was to inform the appellant of and require him to attend the Commissioner in six weeks from receiving the notice and prosecute his appeal. Any other person, not a public officer who might be a party in the case was to receive a similar notice, and the due service of these notices, on their return to the Collector, was to be certified to the Commissioner. (Section 6). On thus transmitting the records of an appealed case the Collector was to give due notice of the admission of the appeal, to the Government Agent at the Court of the Special Commissioner (Section 7). If a petition of appeal from the decision of a Collector or a Board was preferred direct to the Special Commissioner an authenticated copy of the decree appealed from was to accompany it. On admitting it the Special Commissioner was to issue a precept to the Collector if appealed from him ordering the transmission of the original records (a copy being retained in his office) within a specied time to the Special Commissioners office. If the appeal was from the Board of Revenue, the Special Commissioner was to require the Board by a Persian Roobukareo to transmit the records (Reg. III,1828, Rules of Practice, Section 8)When on admitting the appeal and perusing the decree appealed from, it appeared that others beside the appellants and the public officers were interested in the suit, they were to be summoned through the Zillah or City Courts, and duo service of the notice was to be certified by the Judge to the Special Commissioner. (Setion 9). In cases referred by the Board to the Special Commissioner, the notice for the attendance of the respondents and any one else, not being a public officer, was to issue through the Judge of the district in which the party resided. (Section 10). In reference to Reg. III, 1828, Section 4, Clause 3, and Section 6, Clause 2 when a petition of appeal against his decree of assessment was presented to a Collector, or he learnt that the party was about to appeal to the Special Commissioner within the specified time, he was not to execute his decree, till after the period for appealing had passed, unless sooner apprised that an application to stay execution had been rejected by the Special Commissioner. In that case, he might execute it before the period of appeal was passed; otherwise he was to execute it immediately after that period, unless the Special Commissioner forbade it. (Section 11). When the petition of appeal was preferred direct to a Special Commissioner, he might, if he saw fitj direct the Collector to suspend the execution of it at the Same time that he called for the original records of the base, (Section 12).
50. Twelfth, as to Rules regarding Pleadings.
51. Every petition of appeal presented to a Special Commissioner from the decision of the Board or a Collector was to be written on Stamp paper, value One Rupee. (Section 13). The appellant might state the grounds of appeal in the first petition, or reserve his arguments for a separate pleading; in which latter case, it was to be written on a Rupee stamp. (Section 14). In appeals in which a public officer was respondent, the reply was to be written on a Rupee stamp. The reply must either expressly refute the plea of the appellant, or rest the defence on the grounds recited in the decree. (Section 16). When the Board (or Revenue Commissioner) appealed to the Special Commissioner from the decision of the Collector, the appealing Board, or Commissioner, was to direct some public officer to file a pleading on a Rupee stamp containing the grounds of dissatisfaction with the Collector's decision. (Reg. III, 1828, Rules of Practice, Section 16). The reply of the party opposed to the Government was to be written on a Rupee stamp. (Section 17). When the Collector had decided in favour of assessment, and the case was appealed to the Special Commissioner, the pleadings were to be filed in appeal under the immediate responsibility of the Collectors, without reference to superior authority, he being at liberty to apply to the Revenue Commissioner or Board for instructions. (Cir. Ord. No. 62, Sept. 10, 1830). No miscellaneous pleading or petition besides the Wujoohat of the appellant, and the reply of the respondent was to be admitted, unless on a verbal representation by the parties before the Special Commissioner, an additional petition or pleading appeared necessary. It was also to be written on a Rupee stamp. (Reg. III, 1828, Rules of Practice, Section 18). But this rule was not to prevent the reception of petitions solely for staying execution, which might be always received pending the appeal. (Section 19). All petitions for a review of judgment (Reg. III, 1821, Section 4, Clause 5) if presented in two months from the date of the decision, were to be written on a Rupee stamp; if after that period. on a stamp paper, (Reg. I, 1814, Section 13) calculated at the computed annual produce of the disputed land (Section 20).
52. Thirteenth as to Rules regarding default.
53. If the appellant did not attend in person or by agent and prosecute his appeal, within six Weeks from the date of instituting it, if preferred direct to a Local Commissioner Or, ii filed at the Collector's office, from the day of his being informed that the record of appeal had been transmitted to the Special Commissioner, a further notice was to be issued by the Special Commissioner through the Zillah and City Court to him, to attend his appeal in fifteen days after receiving it. If the appellant omitted or refused to attend, the appeal was to be dismissed with costs. (Section 21). The Special Commissioner of Patna found that as his jurisdiction extended from Bhagulpore to Patna, it was necessary to extend the time allowed for prosecuting appeals, otherwise the majority of the appeals must be dismissed ex parte. The Special Deputy Collectors, on this adopted the plan of addressing a perwannah to the Government Pleader directing him to inform the Special Commissioner that particular cases had exceeded the allotted period, and to solicit that they be decided forthwith. Government, on the case being represented, forbade all interference by the Special Deputy Collector with the exercise of the power vested in the Special Commissioner by Reg. III, 1828, Section 4, Clause 2. If he was dissatisfied with the latitude of time given by the Special Commissioner for appeals, he was to report the matter for the consideration of the Board (Cir. Ord. No. 15, Feb. 20, 1839).
54. The Special Commissioner of Patna also informed Government at the same time that the Government Pleader was incessantly called on by the Special Deputy Collector for returns of various descriptions, which left him no time for the more important duties of preparing and transcribing pleadings for transmission to the Special Deputy Collector, and having at the same time proposed the form of a Quarterly report, to be filled up and forwarded every three months to the Special Deputy Collector, Government desired the Board to state whether that form of quarterly report would not suffice for all useful purposes, the principal object being the punctual issue of the prescribed copies of decrees. The Board agreed to this suggestion and ordained that it should supersede a.11 the forms hitherto demanded from the Government Vakeel. (Cir. Ord. No. 15, Feb. 20,1837).
55. If an appellant, having appointed an agent at the Special Commissioner's Court, did not prosecute his appeal for six weeks, the Commissioner might send a requisition to proceed in the case within 15 days to the agent, which should be equivalent to giving notice to the appellant, and if the appeal was not proceeded with, it was to be dismissed. (Rag. III, 1828, Bales of Practice, Section 22). Notices to any public officer concerned in a suit before the Commissioner, was to be delivered to the Government Agent at his Cutcherry, who was to transmit a copy of it to the officer concerned and return the original. (Section 23).
56. Fourteenth, as to Rules regarding Evidence and Fees.
57. If the Special Commissioner, acting on his discretionary power, thought it necessary to receive further evidence, oral or documentary, no stamp fees were to be exacted for summoning witnesses, or filing exhibits. (Section 24). If the Special Commissioner required the further evidence of witnesses, the Judge of the Zillah or City in which they resided was to examine them. on the points specified by the Commissioner. A party requiring a witness might undertake to produce him or serve the subpoena himself, otherwise it might be served by the City Judge. The same course was to be followed in examining a witness before a Special Commissioner. (Section 25).
58. Fifteenth, as to Rules regarding Mooktars or Agents; and their remuneration.
59. Any party having an appeal before a Special Commissioner, might plead his own cause in person, or appoint an agent. (Section 26). If he appointed an agent, he must give him a regular power of attorney, on unstamped paper, attested by some European Officer, to be filed on the records of the case. (Reg. III, 1828, Rules of Practice, Section 27). He might appoint as many agents as he pleased, provided they were men of good character and respectability. (Section 28). He might make his own arrangements with those agents regarding their remuneration; if on the decision of the case, the parties could agree about the remuneration, the Commissioner was to fix the amount. If any agent, without waiting for a final adjustment, declined to act any further, he might be required, at the instance of his principal, to refund whatever he had received for conducting the cause. (Section 29). Every agent conducting a cause before the Special Commissioner was to be subject, like the regular pleaders of the Courts of Justice, to the Regulations, in regard to fines, penalties for neglect, contempt of court, or other misdemeanours. (Section 30). A Government Agent was to be appointed to attend at each Cutcherry of the Special Commissioner, who was to be liable to all the rules which applied to Government pleaders generally, as well as to those laid down for agents pleading before the Special Commissioner. (Section 31).
60. Sixteenth as to Rules regarding Decrees and Costs of Suit.
61. In passing judgment, if the Special Commissioner saw fit to interfere with the compensation made by parties to their agents, the amount of remuneration which he might fix, was to be inserted as costs at the foot of the decree. The Commissioner was also to decide whether the party cast, should bear the whole or any part of the costs incurred by the party opposed to him, including those indicated in Reg. III, 1828, Section 2, Clause 7, (Section 32). The original decrees of the Special Commissioner were to be kept with the records of the case, which, together with three other copies were to be written on English paper, one of them to be given to the party opposed to Government, another to be sent to the Collector of the district, and a third to the Board of Revenue. Other copies of the decree required by the parties, were to be written on plain or stamped paper as the regulations directed, but only by persons authorized by the Commissioner to prepare them. (Section 36). The Commissioner, on sending the decree to the Collector, was to instruct him immediately to execute it, and to report within a given time the measures he has adopted for that purpose. (Section 34).
62. Seventeenth as regards General Rules.
63. In matters not specifically provided for by the rules in this Appendix, or in Reg. III, 1828, the Commissioners were to act according to the rules laid down for the Courts of justice in the decision of Regular Appeals. (Reg. III, 1828, Rules of Practice, (Section 35). The Special Commissioner might propose either new rules of practice, or rules in modification of the present rules. He would transmit them to each of the Special Commissioners, who would record their sentiments, so that they might go up to Government, accompanied by the observations of all the Commissioners. (Section 36).
64. Eighteenth as regards claims for rent-free lands, preferred by one private individual against Government.
65. In 1793, Government ordained that all grants of land on Hookamee tenures, less in amount than a hundred bighas, should, if resumed belong to the zemindar; and that the zemindar was to institute a suit for the recovery of it in the Civil Court; and that if he subjected such land to assessment without a decree, he would be liable to damages. (Reg. XIX, 1793, Section 11)
66. It was ordered in 1819 that all such suits preferred in a Court of Judicature by proprietors, etc., to the rent of lands under 100 bighas held free of assessment within their estates, or of individuals to hold lands free of assessment, should be referred to the Collectors; but that the claim might be preferred at once to the Collector. The plaintiff was to state the particulars of his claim and the grounds of it, and the petition of plaint was to be on the usual stamped paper. (Reg. II, 1819, Section 30, Clause 1.) Such suits being thus referred to the Collector, could not be entertained by Sudder Ameens or Moonsiffs. (Cir. Ord. No. 95, Aug. 30, 1833.) The Collector, on receiving such a petition, was to serve a notice on the defendant with a statement of the demand, and desire him to attend within one month, personally or by vakeel and to produce the sunnucls on which he held the lands or claimed them free of assessment. (Reg. II, 1819 Section 30, Clause 2.) The defendant having appeared and delivered his deeds, the Collector was to allow the claimant to inspect them and give him seven days to put in a statement of the grounds (in reference to the documents) on which he considered the tenure invalid, and the lands liable to assessment, together with his documents. (Section 30, Clause 3.) The claimant having delivered his statement and. documents, the Collector was to investigate and decide the case as he did when he proposed to assess lands for Government (Reg. II, 1819, Section 30, Clause 4). The same rule was to apply regarding stamps on summoning witnesses and filing exhibits as for suits instituted in the Zillah Courts. (Section 30, Clause 5.) If Government was not a party to the suit, and it had been referred from the Civil Court, the Collector, on closing his proceedings, was to transmit them with all the documents and his opinion to the Court, and the Court was to decide the case, calling, if necessary, for further documents, but no sunnud or documentary evidence not delivered in to the Collector was to be received in the Civil Court, except when the omission was satisfactorily explained. (Section 30, Clause 6). In oases preferred directly to the Collector, either party dissatisfied with his decision, might appeal to the Civil Court on a Rupee stamp, in not more than three months, unless good reason was shown for the delay. (Section 30, Clause 7). The Judge, on receiving the petition, was to require of the Collector all the proceedings and documents and investigate and decide it, as if instituted before him originally. (Section 30, Clause 8). In cases in which Government was the defendant, or in which the revenue of the lands claimed, formed part of an estate liable to variable assessment, the Collector was to submit his proceedings when closed, to the Board of Revenue for their decision. If it was a case referred from the Civil Court, the Collector was to postpone his return to the reference, till the Board's orders were received. If the claim had been preferred to the Collector originally, the Civil Courts were not to inteifere till the Board's reply arrived. The Board's decision was to be sent in a Persian Roobukaree to the Collector. If the case had been originally preferred to the Collector, the patty dissatisfied with the Board's decision, might appeal to the proper court in three months from the time the decision was given to him or his Vakil, or the Board's Roobukaree had been brought on the Collector's records (Section 30, Clause 9). If the appeal was not made in three months or good reason was not given for the delay, the Board's decision was to be carried into effect, on the application of the successful party, by the Courts of Judicature (Section 30, Clause 10). Where the right of resuming the revenue of free lands or of recovering possession, under such a tenure, of lands subjected to assessment, was adjudged by the Revenue Authorities, the Courts were to execute the decision notwithstanding the appeal, unless the party gave good security for paying the mesne profits. (Section 30, Clause 11).
67. In cases appealed from the Revenue Authorities and decided by the Civil Courts whether the claim was originally preferred to the Courts or Collectors, a special appeal only was allowed to the Superior Courts, except in oases of appeal to the King in Council. Such appeals wore to be regulated by Section 26 of the Regulation (Section 30, Clause 12). In 1832, it was enacted that the Special Appeal from the decision of the Civil Court was to lie to the Sudder Dewany Adalat after Reg. V of 1831 had been introduced into a district (Reg. VII, 1832, Section 13).
68. When an individual instituted a claim against Government to hold lands free of assessment, on a Hookarnee tenure, the Collector was to defend it. If Government, was cast, or the Collector was dissatisfied with the decree, the rules laid down in Section 30, Reg. XIV, 1793 were to be applicable to the case; only that the cause was to be carried on at the expense of Government. If the Board did not think fit to order an appeal, their reasons were to be stated to the Governor-General, who was to direct the cause to be appealed or not, (Reg. XIX, 1793, Section 15). The same rule was laid down with regard to claims by individuals to hold lands free of assessment on Badshahee tenures. (Reg. XXXVII, 1793, Section 10).
69. In the year 1825, it was ordained in reference to persons claiming to hold a land exempt from Revenue, that the party should deliver to the Collector with the plaint, all sunnuds and writings; and specify in the petition the particulars required to be registered by existing rules relative to registry and the grounds of the claim. If the claim involved only the interest of Government, the Collector was to investigate it without delay, after giving eight days' notice to the party. If the claim was against any person singly, or jointly with Government the Collector was to give him a month's notice, requiring him or his Vakeel to attend with any papers or evidence in denial of the claim. On appearing, ho was to be allowed to inspect the complainant's plaint and documents, and to be required to give in his objections in seven days. The only pleadings required were the plaint and answer, but the Collector might receive subsidiary pleadings. The Collector was to give eight days' notice to the parties, and investigate the case as soon as possible. When the parties signified by written ikrarnama their desire to have an immediate decision, (whether the case originated in a claim on behalf of Government, or at the suit of an individual, and whether the Collector's proceedings were held under Reg, II, 1819, or any other Regulation), the Collector might proceed forthwith to investigate it, without any formal summons or notice. Reg. IX, 1825, Section 5, Clause II.)
70. It was subsequently ordered that the provisions of Reg. III, 1828, were not to extend to cases under Reg. II, 1819, Section 30, save when they involved the right of Government to assess all or any portion of the lands on which the suit was brought. In such cases, in which Government was a party, the Collector, whether the suit was instituted before him or referred to him, was to investigate and decide it in the mode prescribed in Section 4, Reg. III, 1828, the several clauses which were to be held to apply to such suits. But in all other cases, in which Government was not a party, he was to act under Reg. II, 1819, Section 30 and to decide according to that Regulation and its modifications in Reg. IX, 1825, Section 5 (Reg. III, 1828, Section 5).
71. Claim under Section 30, Reg. II, 1819, between individuals respecting the rent of free lands were to be decided by the ordinary Revenue Authorities and not to be referred to the Special Deputy Collector (Cir. Ord. No. 23, April 18, 1837). And, generally cases under Reg. II, 1819, Section 30 were declared not to be within the province of the Special Deputy Collector, and all duties under that section were to be retained by the Collector (Cir. Ord. No. 30, May 9, 1837). On a reference from the Commissioner of Bauleah it was also ruled, that suits for the resumption of lands, under grants of less than 100 bighas in permanently assessed estates, of which Government had become proprietor by purchase were to be decided by the Collector under Reg. II, 1819, Section 30, and not referred to the Resumption Officers (Cir. Ord. No. 69, Aug. 14, 1837). And when such lands within 100 bighas, Came under the cognizance of the Settlement Officers, as being included within an estate which had become Government property, it was forbidden to make a separate settlement of them, but the juma was to be included in the gross assets of the estate to which they belonged, when that settlement was concluded and submitted to Government. (Cir. Ord. No. 77, Sept. 22, 1837).
72. Nineteenth as regards Rent-free lands held by independent chiefs.
73. When an independent chief held only an ordinary rent-free tenure, his title was not to be lightly called in question, and the investigation of its validity was to be conducted by the Political not the Revenue Authorities. (Cir. Ord. No. 29, Aug. 12, 1840.)
74. The analysis given above furnishes an accurate review of the course of the proceeding adopted by the revenue authorities, preparatory to an enquiry and culminating in a decision regarding the liability of resumed lands to be subjected to assessment. If a Collector believes that lands lying within the sphere of his official control are liable to assessment, he can obtain authority from the Board to enter on an investigation. He can thereupon require the person concerned to attend and to produce all relevant documents. An elaborate method is provided for service of notice or proclamation, as the case may be so as to make evasion impracticable. The Collector is thereafter enjoined to institute a full and particular enquiry into the circumstances and condition of the land, supposed to be liable to assessment, at the period of the Decennial Settlement or alluvial formation. In order that this may be effected, the Collector may cause a survey or measurement, summon keepers of accounts, examine them on oath, und scrutinise their papers. The Collector may adopt the same procedure in respect of proprietors and farmers and enforce penalties on all persons for contumacy. This is supplemented by the remarkable provision that papers not produced at this stage shall not be received in evidence in courts of justice in suits instituted to contest the decision of the revenue authorities. The Collector is expected to examine all papers produced and to record the depositions of witnesses in judicial form. At the close of the proceedings, the Collector is required to record his opinion, with statement of reasons, for submission to the Board of Revenue. The Board hears the person concerned and then records the final decision upon the question of liability to assessment. The Board then proceeds to assess the amount of Revenue leviable, on the principles of the general regulation and on such information as may be procurable. Then follows what may seem the most oppressive of all provisions namely, the immediate enforcement of the new demand. The person affected must furnish responsible security and engage to institute a suit to try the justness of the demand, if he does not accept the decision and yet desires to remain in possession as before. If he fails to give security or to institute a suit within the prescribed time, he may be deprived of possession. But ho may sue at any time within one year from the date of receipt of information of the decision of the Board, and be is given a right of appeal to the Sudder Diwani Adalat. The provision in Section 24 is thus the culmination of a carefully framed and elaborated system for investigation of the liability of unassessed land to be assessed with revenue. It is plainly impossible for such a provision to be transplanted into an entirely different plan of enquiry, such as was initiated by the legislation of 1847. Section 1 of Act IX of 1847 enacts that such parts of the Regulations of the Bengal Code as established tribunals and prescribed rules of procedure for investigation regarding the liability to assessment of lands gained from the sea or from rivers by alluvion or dereliction or regarding the right of Government to the ownership thereof, shall, from the date of passing of the Act, that is 8th May, 1847 cease to have effect within the Provinces of Bengal, Bihar and Orissa; and all such investigations pending before the Collectors and Deputy Collectors in the said Provinces, at the said date, shall forthwith be discontinued; and no measures shall hereafter be taken for the assessment of such lands or for the assertion of the right of Government to the ownership thereof, except under the provisions of the Act. It is incontestable that the effect of this repealing clause is to destroy the vitality of such provisions of Reg. II of 1819 as established tribunals and prescribed rules of procedure prima facie these provisions include Section 24, which, as we have seen, hinges on Section 22, which, in its turn, is dependent on and inseparably associated with the rules embodied in Sections 5 to 21. This view is confirmed, when we examine the other provisions of Act IX of 1847. They were analysed by Lord Herschell in his judgment in Secretary of State v. Fahamidunnessa  17 Cal. 590 which affirmed the decision of the majority of the Full Bench in Fahamidunnissa v. Secretary of State  14 Cal. 67 (F.B.), which had overruled in part the decision of Wilson, J. in Sarat Sundari v. Secretary of State  11 Cal. 784. The effect of Act IX of 1847 was also examined recently in the cases of Sreenath Roy v. Secretary of State A.I.R. 1923 Cal. 233 and Sandamini v. Secretary of State : AIR1924Cal197 .
75. Briefly stated, Act IX of 1847 was framed with a view to substitute, in cases of assessment of alluvial lands, a simpler procedure than that embodied in Reg. II of 1819, which was intended to apply, in the main, to resumption of lands held free of assessment, without the sanction of the proper authorities or under illegal or invalid tenures. Section 3 empowers the Government to direct new surveys of riparian lands, and provides as follows:
Within the said provinces it shall be lawful for the Government of Bengal in all districts or parts of districts of which a revenue survey may have been or may hereafter be completed and approved by Government to direct from time to time whenever ten years from the approval of any such survey shall have expired, a new survey of lands on the banks of rivers and on the shores of the sea, in order to ascertain the changes that may have taken place sineo the date of the last previous 'survey, and to cause new maps to be made according to such new survey.
76. Section 4 lays down that the approval of the revenue surveys of districts or parts of districts which may be hereafter surveyed, shall be deemed to have taken place on Such day as may be specified as the day of such approval in the Calcutta Gazette Section 5 and 6 deal, respectively, with the question of deduction from jama of estates from which lands have been washed away, and the question of the assessment of increments to revenue paying estates. Section 6 which is relevant, in the case before us, provides as follows:
Whenever on inspection of any such now map, it shall appear to the local Revenue authorities that land has been added to any estate paying revenue directly to Government, they shall, without delay, assess the same with a revenue payable to Government according to the rules in force for assessing alluvial increments and shall report their proceedings forthwith to the Hoard of Revenue, whose orders the re-upon shall be final.
77. The expression 'any such new map' plainly refers to the 'new map' made according to 'new survey' as contemplated in Section 3. That section provides for periodical surveys at intervals of not less than ten years, after a revenue survey has been completed and approved. The object of the 'new survey' is to ascertain the 'changes' that may have taken place since the date of the last previous survey, that is, changes by alluvion or dereliction (not changes by possession.) Section 6 then imposes upon the revenue authorities the duty to assess what may be called added land, whenever, on inspection of the new map, it appears that land has been added to an estate paying revenue directly to Government. There must consequently be a comparison between two maps, made at an interval of not less than ten years and each showing the Revenue paying estate concerned. That estate must, accordingly, be in existence as a revenue paying estate, if not before, at least on the date of the first of the two maps taken as the basis for comparison. We may usefully recall here the following passage from the judgment of Wilson, J., in Sarat Sundari v. Secretary of State  11 Cal. 784, which except in one particular remains unaffected by the decision of the Full Bench and of the Judicial Committee in Fahamidunnissa v. Secretary of State  14 Cal. 67 (F.B.). and Secretary of State v. Fahamidunnissa  17 Cal. 590. 'The object of the Act is to provide for the assessment of riparian estates from time to time, in accordance with the changes which periodical surveys may show to have taken place in their area and boundaries. Section 3 of the Act refers to a revenue survey which is to be approved by Government as fixing the boundaries of estates, and provides that at intervals of not less than ten years, fresh surveys of such estates may be made. Section 5 then provides for a reduction in the sudder jama when, on a comparison of two successive surveys, it appears that the area of an estate has been diminished and Section 6 provides for an addition to the jama when, on inspection and comparison of the new map, land appears to have been added to the estate since the last survey. In every case the starting point is to be the revenue survey which it would appear, is to be taken as representing the boundaries of the estate as they existed at the time of the Permanent Settlement and it is apparently not open to the Revenue authorities to go behind that survey and enquire whether in fact the boundaries at the time of settlement were not other than therein represented.'
78. Wilson, J., in this passage had apparently in view the case of an estate which was in existence at the time of the Permanent Settlement of 1793. Section 3 of Act IX of 1847, is, however, all comprehensive in scope, and Sections 5 and 6 both refer to all estates paying revenue. directly I to Government, no matter whether they were or were not in existence in 1793.Wbat is essential to attract the application of Act IX of 1847 is that there should have been in the case of the estate concerned a revenue survey. This prima facie furnishes the boundaries, as presumably, though not conclusively, accurate; see the judgment delivered by Wilson, J., on behalf of the majority of the Full Bench in Fuhamidunnissa v. Secretary of State  14 Cal. 67 (F.B.), which to this extent overruled his previous decision in Sarat Sundari v. Secretary of State  11 Cal. 784. The true position is that the revenue survey map is taken as the basis of comparison, but the comparison of the maps is not conclusive. The comparison sets the revenue authorities in motion, and they may, then, on the best materials they can procure, proceed to assess what land they deem to be assessable. This view is confirmed by the observations of Lord Herschell in Secretary of State v. Fahatnidunnisa  17 Cal. 590. Section 3, according to him, empowers the Government of Bengal in any district in which a revenue survey has been completed and approved by the Government, to direct decennially a new survey of lands on the banks of rivers, and on the shores of the sea, in order to ascertain the changes that may have taken place since the last previous survey and to cause new maps to be made according to such new survey. Section 6 then provides that whenever, on inspection of any such new map, it shall appear to the local revenue authorities that land has been added to any estate paying revenue directly to Government, they shall without delay, duly assess the same according to rules in force for assessing alluvial increments. Such added land cannot obviously be land which was already comprised, in a Permanent Settlement, but had become derelict 'of the sea or a river, for it would be a contradiction in terms to maintain that such land had been 'added' to the estate to which they already belonged. Lord Herschcll then refers to Section 5 which deals with the question of deduction from jama of estates from which lands have been washed away, and points out that the Act provides no machinery for making such abatement where the land was covered with water at the time of the original survey; it is only 'when on inspection of the new map' it appears that land has been washed away that there is any legislative authority for making an abatement. These remarks apply equally to a case under Section 6, and it is only when on inspection of the new map it appears that land has been added, that there is legislative authority for assessment of additional revenue. Lord Herschell finally adds that it would be an erroneous interpretation of Act IX of 1847 to hold that it rendered the Board of Revenue supreme and enabled them to make valid and effectual a proceeding on their part which the law had declared to be wholly illegal and invalid.
79. It is manifest from what has been just stated that the procedure contemplated by Act IX of 1847 is fundamentally different from that provided by Reg. II of 1819. The change had been rendered feasible, chiefly by reason of the progress of the survey operations throughout the province. The survey operations conducted by Major Rennell bad not been undertaken for revenue purposes, and it was only during the first half of the nineteenth century that surveys of different types (Khasra, Thakbust and Revenue) were systematically carried out, with a view to define every estate on the Collector's rent roll and to determine the relation of land to jama or revenue by the ascertainment of the areas and boundaries of estates or mehals. The system of assessment inaugurated in 1847 could not have been even contemplated in 18l9.Two such systems so radically distinct in conception, cannot possibly be amalgamated, and I cannot persuade myself to hold that it is a correct method of judicial interpretation of two statutes, framed on fundamentally different lines, to engraft a provision from the one upon the other. The impossibility of the attempt becomes patent when the terms of Section 24 are closely scrutinised. In a proceeding under Act IX of 1847, how can there be a person who has failed to give security or to institute a suit within ten days from the date of the deed of security? How can there be a person who has received intimation of the decision of the Board of Revenue, which is the fruit of the elaborate enquiry prescribed by the Regulation? In my opinion, Section 24 is entirely inappropriate and inapplicable in the case of proceedings under Act IX of 1847, it is dead in relation to assessment made, under the statute. This point did not and could not arise on the facts established in Fahatnidunnissa v. Secretary of State  17 Cal. 590, and I am not impressed by the endeavour to vitalize Section 24, by reference to isolated expressions or passages from the judgment of the Pall Bench or of the Judicial Committee. Nor do I feel pressed by Section 31 of Reg. II of 1819 which merely embodies a declaration in the nature of a pacifying assurance to zamindars that there was no sinister intention on the part of Government to imperil the rights guaranteed to them at the Permanent Settlement. After the moat anxious consideration of the subject, I see no escape from the conclusion that the decision in Prafulla v. Secretary of State (1920) 24 C.W.N. 813 as to the applicability of Section 24 of Reg. II of 1819 does not give full and true effect to Section 1 of Act IX of 1847. This is conclusively established when an attempt is made to apply the terms of Section 24 of Reg. II of 1819 to proceedings, which like those before us, have been conducted in conformity with the requirements of Act IX of 1847. In my judgment, Section 24 does not bar this suit.
80. The result follows that the decree made by the Subordinate Judge must be reversed, and the suit remanded to him for trial on the merits. The plaintiffs are entitled to their costs (other than the court fees on the plaint) before the Subordinate Judge both before and after remand; they are also entitled to their costs in this court, both of the hearing before Woodroffee and Walmsley, JJ., and before this Bench.
81. Under Section 13 of the Court-Fees Act, the appellants are entitled to a refund of the court-fees paid on the memorandum of appeal.
82. The costs of the trial in the court below after remand (including the court-fees on the plaint) will be in the discretion of that Court.
83. This suit was brought in 1915 for a declaration that certain lands are comprised within a permanently settled estate and are not liable to be assessed to additional revenue under the provisions of Act IX of 1847. In 1918 the suit was dismissed by the Subordinate Judge on the ground of limitation, but on appeal to this Court this decree was in 1921 reversed on the ground that enquiry into the fact necessary for the determination of that question had not been made. The Subordinate Judge had thought the suit to be barred by Article 14 of the schedule to the Limitation Act but in 1921 a further contention was mooted on appeal viz., that the suit was barred by Section 24 of Regulation II of 1819. In remanding the suit, this Court stated that the Judge, if he thought fit, might take in the first instance such evidence only as affected the question of limitation. This is the course which has been followed and after taking such evidence the trial Court has negatived the plea under Article 14, but has upheld the plea under the Regulation. Once again therefore the suit has been dismissed on a preliminary point. The merits have at no time been investigated or determined.
84. If the plea under the Regulation fails the case must go back for trial: the learned Vakil appearing on behalf of the Secretary of State has not claimed to be able to support the decree now under appeal by means of Article 14.
85. The facts which ground the objection to the plaintiff's right to sue are those : That the assessment of an additional sum of Rs. 1,949 was approved by the Board of Revenue on 28th November, 1912 and that on 15th March, 1913 a notice bearing date 20th February, 1913, was served upon an officer of the plaintiffs informing them of this assessment. The contention is that by Section 24 of Regulation II of 1819 the plaintiff is required to bring his suit within one year from the notice and that the present suit instituted on 29th June, 1915, is therefore out of time.
86. Of the answers made by the learned Vakil for the appellants I will in the first instance confine myself to two. Stated as boldly as possible they are (1) that Section 24 of the Regulation of 1819 does not in law apply to this case, (2) that even it did the Regulation has not in fact been in this case acted upon by the Revenue authorities the letter of 28th November, 1912 is not such a decision as is contemplated by Section 24; and the notice of 5th March, 1913, is not such a notice as is thereby made the starting point of a period of limitation.
87. The lands upon which the plaintiffs have been required to pay additional revenue are char lands on the bank of the River Barisal and the assessment proceedings have been conducted throughout in professed compliance with Act IX of 1847. The assessment complained of has been made upon the basis that the land has been gained from the river by alluvion. The case comes admittedly within the provisions of Section 1 of the Act and no measures for the assessment of these lands would be lawful unless taken r under the provisions of that Act.
88. Now the only measures authorised by the Act relate to cases in which a revenue survey has previously been completed and approved; and in such cases after an intertval of ten years a new survey map may be e made and new maps prepared. If, when that has been done, it appears to the revenue authorities on inspection of such new map that land has been added, they are required without delay to assess the same; with a revenue according to the rules in force for assessing alluvial increments, and to report there proceedings to the Board of Revenue whose orders thereupon shall be final.
89. This Act has been described as a procedure Act Fahamidunnissa's case  14 Cal. 67 (F.B.). The procedure adopted under it in this case commenced with a notification of 2nd October, 1900, under which a new map was prepared in the course of the District Settlement operations conducted under Ch. X of the Bengal Tenancy Act. In December 1911 proceedings were commenced for the assessment of additional revenue upon 558 acres the area which appeared to the revenue authorities to have been gained from the river by alluvion. The revenue authorities on 20th March, 1912, reported to the Board that the land should be assessed at a sum of Rs. 1,949. On 28th November, 1912, the Board by letter gave their approval. On the 5th March, 1913, the plaintiffs were informed of this approval and told that the sum of Rs. 1,949 would be realised from them.
90. I will take it for the sake of argument that the plaintiffs can make out no grievance as regards procedure. Their case on that assumption stands thus : That the procedure provided by Act IX of 1847 has been applied to certain land already settled in perpetuity with them : that in this respect alone and solely for this reason the proceedings and assessment in which they resulted were ultra vires and illegal: and that against excess of jurisdiction in Civil Court will not omit to give relief.
91. The answer made by the Secretary of State is that Regulation II of 1819 limits the plaintiffs' right to seek relief and we turn therefore to examine it. The Regulation was and still is the general law as regards assessment proceedings: the Act of 1847 having withdrawn alluvial accretions from its scope so far as regards tribunals and rules of procedure. The Regulation still applies (inter alia) to two subject-matters which since it came into force have lost much of their importance the case of lands held as free of revenue, but under an invalid title to that character and lands not included within any permanently settled estate and for which no assessment has in fact been made. Though Section 8 of the Regulation contains a special power to cause a survey or measurement to be made the proceedings prescribed by the Regulation are in no way dependent upon the existence of any previous survey or maps, nor do they necessarily involve the exercise of the power given by Section 8.
92. Under the Regulation, the Collector, having received from the Board of Revenue authority to enter on an investigation, calls before him by a notice the party whose lands it is proposed to assess, and demands the production of all instruments of title. He then proceeds to a full and particular inquiry into the circumstances and condition of the land in question at the period of the decennial settlement and (prior to 1847) in cases of alluvion land into the period of its formation. For this purpose he is armed with very summary powers to compel discovery of accounts and other writings. In addition, Section 13 provides that documents not produced to the Collector shall not be received in evidence in any suit brought to contest the decision of the revenue authorities except on proof of special excuse. The Collector, on receiving from the party his title-deeds has to give him a statement of the grounds on which his land may appear liable to assessment with copies of all documents on which this opinion may be founded. The party is to give a written answer in seven days: evidence is then to be taken in his presence and with facilities for inspection by the party of all documents. The opinion of the Collector is then to be recorded by him in a roobukari detailing the grounds on which it is founded. A copy is to be furnished to the party and the proceedings are to be forwarded to the Board, The Board after ample notice to the party is required to hear the party if he so desires; its opinion is to be recorded in a roobukari of which the party is entitled to a copy. These roobukaris are required to contain a distinct statement of the subject-matter, grounds of decision, names of witnesses and titles of exhibits.
93. This takes us to Section 21 of the Regulation which shows that the proceedings so far have resulted in an investigation of the case and a decision upon the question whether lands are liable to assessment. If the Board's finding is that there shall be no assessment, the party in the absence of fraud is given the important right to have this decision treated as final.
94. If the Board declares that the lands are liable to assessment, the Collector is required by Sections 21 and 22 first to inform the party of the decision of the Board, and thon subject to a right to the party to obtain a suspension of further proceedings by giving security within 14 days and bringing a suit within 10 days thereafter, to carry into effect the Board's decision by ascertaining the limits of the land, fixing an assessment and enforcing that assessment us final by dispossessing the party objecting to take settlement thereunder. In mitigation of the stringency and peremptoriness of these provisions it is provided by Section 24 as follows:
Persons whose lands may be assessed either on failure to give security or to institute a suit within the prescribed time shall nevertheless be entitled to sue any time within one year from the date of their being informed of the Hoard's decision; but after the above period shall have elapsed the decision of the Board shall be final and conclusive.
95. Passing over the proviso to this section we come next to a provision with reference to suits brought to contest the liability to assessment in the District Court. This grants a right of appeal to the Sadar Diwani Adalat on the terms that such appeal shall not be admitted, unless, upon a perusal of the Lower Courts's decree and the Board's final robukari, the decision should appear doubtful or erroneous.
96. The intervening amendments of the Regulations complicate the matter to some extent, but the course of legislation prior to 1847 has been described succinctly by Sir Arthur Wilson in delivering the judgment of the Full Bench in Fahamidunmissa's case  14 Cal. 67 (F.B.): Regulation III of 1828 was an attempt to render more peremptory still the decisions of the Board as to liability to assessment. The actual assessment was not to be delayed in any case. Landholders were to be dispossessed pending suit, unless they engaged to pay the assessment meanwhile: mere security to ensure payment in case they should ultimately be held liable was not enough. Suits were in the Civil Courts to be treated as appeals, no further evidence being token, except for special reason : that is to Say they were to be decided on the materials furnished by the original record of the proceedings of the Board the appellant stating his objections in writing and the Board giving its reply.
97. If now one asks oneself what these provisions have to do with a proceeding under Act IX of 1847 the answer appears to be that they have nothing to do with it whatever. In fact in the present case the procedure has been out of all relation to these provisions and for the best of reasons namely because as regards char lands Section 1 of the Act of 1847 abolished such parts of the Regulations as established tribunals and prescribe rules of procedure for investigations regarding the liability to assessment. I do not doubt that much excellent investigation has taken place; but the Collector never held any such proceedings as are referred to in Sections 5 to 20 of the Regulation of 1819. He never issued a robukari under Section 20 and the Board never issued a robukari under Section 21 dealing as therein provided with the question of liability to assessment. On the contrary the proceedings in this case commence, so far as the plaintiffs are concerned, with the document of 20th December, 1911, which recites that, on an inspection of the new map, it appears that 558 acres have been added to plaintiff's estate and that the said land will now be assessed accordingly. The report of 20th March, 1912, shows that this was intended as the initiation of a proceeding under Act IX of 1847 and Act XXXI of 1858. No one supposes that on receipt of notice of this document or of any other document in this case the plaintiffs were obliged to give security and bring a suit in ten days thereafter on pain of being dispossessed. It would be plainly extravagant to say that in this suit documents tendered in evidence by the plaintiff could be rejected, because they were not laid before the Collector; or that an appeal in this suit could be summarily rejected upon a perusal of the decree and the Board's letter of 28th November, 1912. But for opinion to the contrary I should have thought it equally impossible to maintain that this suit is to be conducted as an appeal and decided upon the materials before the Board of Revenue. The investigation from which the limited and special right of appeal arises has never at any time taken place.
98. What then can Section 24 have to do with this case, and why should it be applied in particular to the notice given on 5th March, 1913? It is a remedy given to mitigate the summary execution of a different kind of decision which was to be arrived at under many safeguards as the result of proceedings altogether different. It is a small but important cog in machinery which has been altogether scrapped in favour of more modern machinery.
99. It may assist in clearness to refer shortly to the business meaning of the improvement introduced by the Act of 1847. One of the defects of the Permanent Settlement was that it was not based on any survey or measurement of the lands. The preamble to Reg. II of 1819 shows the difficulties experienced by Government in bringing under settlement lands outside the limits of settled estates, particularly in view of the difficulty in ascertaining boundaries and in the presence of many unfounded claims to hold land free of revenue. The preamble declares the right of Government to assess all lands not already settled and not held free of assessment under a valid title. At the same time it formally renounces all claim On the part of Government to additional revenue from lands included in estates at the time of previous settlement. The first mentioned intention is carried out by Section 3: the second by Section 31. Apart from the beginning and the end of the Regulation, all the rest of it deals with the question of determining the liability to assessment. This was pointed out by Sir Arthur Wilson in the case of Fahamidunnissa v. Secretary of State  14 Cal. 67 (F.B.) already cited. Now to decide as to liability in the absence of a previous survey meant local enquiry involving considerable harassment to everybody and the enquiry when made, by measurement with Field Books, by reference to such boundary marks as trees and houses, was not seldom unsatisfactory as a record, for the purposes of later years. It must not be supposed that scientific surveys were unknown in Bengal; indeed before the Permanent Settlement Major Rennel's survey in Eastern Bengal had taken place. Still, the enquiry as to liability was a matter of great difficulty. It was also a matter of enormous importance: throughout the first half of the nineteenth century the public revenue was very much increased by bringing under settlement lands which had escaped assessment for one reason or another. The Regulation of 1828 shows that suits to contest the question of liability were congesting the Civil Courts, and the delay in deciding them was causing so great a loss of revenue that landholders were made to pay even pending suit. By 1847 however two things had happened - the particular case of char lands had a greater relative importance, and it was now reasonable to look forward in their case to a more scientific method based on survey - a method specially necessary for such lands. In their case therefore it was possible to provide that proceedings should only be taken when it was possible to start at a stage which avoided the old local enquiry as to liability, so 'difficult and troublesome to all parties concerned'. The Act of 1847 accordingly set free the local revenue authorities to proceed straightway to an assessment. The actual fixing of the assessment is based not on a judicial decision as to liability, but on an executive or administrative order following upon an inspection of the map. There is no longer a trial and a 'preliminary decree' and the Draconian provisions designed to prevent interruption of the proceedings by compelling appeals from the 'preliminary decree' to be brought promptly after notice of such decree have no longer any operation. Before fixing the assessment, the revenue authorities may take the greatest pains and doubtless do : in an ample and benevolent discretion they may hear all parties, listen to any evidence, peruse every document, scrutinise the maps and chittas, and take nothing for granted. But if the very special trial contemplated by Regulation II of 1819 is never held, they cannot claim for their decision imposing an assessment, the detailed legal incidents anuexed or attributed by the Regulation to the result of such a trial on the question of liability. As regards the particular incident of finaliby, there are positive reasons to rule out such a claim. The safeguards carefully provided by the Regulation to take effect at the trial have a direct relation to the limits set as regards appeals to the Civil Court. Compare for example the 6th clause of Section 5, the 2nd clause of Section 13, the 15th and 6th Sections, with the 3rd clause of Section 10 of Regulation III of 1828. Or compare Sections 20 and 21 of 1819 with 2nd clause of Section 26, or with the 3rd clause of Section 10 of 1828. Here there is a real correspondence: the one thing is enacted in view of the other. Finality under the Regulation is dealt with specifically and it is not a one-sided finality. The 3rd clause of Section 21 gives a right to the party; the 1st clause of Section 24 gives a conditional finality in favour of Government. Both, may remark are given as regards the same Hung - viz., the decision of a 'tribunal' on the question of liability. Now the Act of 1847 makes its own provision as to finality, and makes it as one would expect in the form applicable to administrative orders (Sections 5, 6 and 9). Prima facie administrative orders are intended to be made with regard to ascertained proprietary rights and will not interfere with their enjoyment. The basis of Act IX of 1847 in that with the aid of two maps they will in general be ascertainable by mere inspection.
100. I respectfully dissent from the decision in Prufulla Nath Tagore v. Secretary of Sate (1920) 24 C.W.N. 813. That decision rests, it seems to mo upon two propositions. First, that 'an order under Section 6 (of Act IX) corresponds with a decision of the Board Under Reg. II declaring liability to assessment.' Secondly, that in Fahamidunnissa's case  17 Cal. 590 the reference made to Section 31 of the Regulation imports that Section 24 as amended by Section 10 of Reg, III of 1828 is applicable to a suit brought to contest an assessment made under Act IX of 1847,
101. Now if the latter proposition be correct it may be idle to cavil at the former. An enactment may date from B, the period of limitation which formerly ran from A. If it does so they may be said to correspond. But if the contention be that they so correspond in their own nature that B attracts to itself the terms of a restrictive provision enacted with regard to A, then in the present case it seems to be a sufficient answer that the identity is not nearly so remarkable as the differences: and that for the present purpose viz., determination of the applicability of restrictions set to the time and manner of recourse to the Civil Court - the two things are as different as they well could be.
102. The decision in question was doubtless not intended to depend on any argument from analogy. It is said that the Judicial Committee have rested the right to have recourse to the Civil Courts on Sections 22 and 24 of the Regulation of 1819; that they have done this indirectly by reference to Section 31 which contains matter of recital only and does not give a right of suit in addition to the right of suit given by Section 24.
103. Now if this be so, it is not a little strange. In Fahamidunnissa's case  14 Cal. 67 (F.B.) the suit was brought within a year and limitation was never mentioned. Before the Full Bench the proprietor contended that no land having been gained from the river the Revenue authorities had exceeded their powers. 'The Act has abolished by Section 1 all the previous procedures for the judicial investigation of the question of liability to assessment: the Civil Court therefore must try the question.' It was contended in reply that the Act had not abolished the power of the Board of Revenue to investigate judicially the question of liability to assessment, that the Board had acted within its jurisdiction and that its decision could not be challenged by civil suit in the absence of any provision giving this right as is given in respect of island chars by Section 7(1).
104. Before the Judicial Committee the Secretary of State contended that under the old procedure the right to take recourse to the Civil Court was no absolute right: no right was given by the Act of 1847: the orders of the Board were final: and so there was no right of suit at all. The proprietor contended that the old procedure had been abolished and that the new Act had made no provision at all as regards determining contested questions of liability and that accordingly these must be determined in the Civil Court.
105. The judgment delivered by Lord Herschell may be safely read in the light of the fact that from beginning to end of the case although the plaintiff had sued in time on any view, he never claimed an express right of suit as given to him by the express words of Section 24 of the old Regulation. By Reg. III of 1828 the right of suit had been converted into a mere right of appeal. The plaintiff never troubled any court with the contention 'the trial court has been abolished, I have never been before it, but I claim to exercise my right of appeal.' The whole question being whether the plaintiff had a right of suit at all, the answer of the Judicial Committee is now said to have been that he had the right of suit expressly given by Section 24 and no other: and this decision is said to have been expressed indirectly by reference be Section 31.
106. Now the function of Section 31 in the Regulation of 1819 is as already shown made clear by the preamble. Insistence on the right to resume unsettled larids, and the setting up of elaborate provisions for investigation rendered it politic to make a declaration - 'at the same time formally to renounce all claim on the part of Government to additional revenue from lands which were included within the limits of estates... whether on the plea of error or fraud or on any pretext whatever....' This is done by Section 31. The section speaks as in 1819 and not as in 1847. It says that what was guaranteed at the Permanent Settlement is not meant to be taken away, and for the comfort of proprietors, it points out that the Civil Court still has the last word so that no one need be afraid. This is followed by a solemn declaration that any claims to upset the Permanent Settlement upon allegation of errors or fraud or anything else are wholly illegal and invalid.
107. To the contention that since 1847 the proprietor has no right of suit at all it is a relevant and conclusive answer to say that the provisions of Clause 31 are in no way repealed or affected by the Act of 1847 - that is by the repeal of such parts of the Regulations as established tribunals and prescribe rules of procedure for investigations regarding liability to assessment. I take the meaning to be that Clause 31 can stand intact though machinery clauses are repealed quo ad char lands not that Clause 31 standing some inapposite clauses arc kept alive to be applied by analogy and that the plaintiff has an express right of quasi-appeal by suit which he never claimed.
108. I say nothing as to the contention that the plaintiffs are not within Section 24 of the Regulation, because they hold in howladari right and notwithstanding that in 1842 a Permanent Settlement was made with them on the refusal of the zemindars to take settlement: Nor need I consider the effect of their petition to the Board of Revenue for a revision of its decision.
109. It seems right on the whole to remand the case for that investigation of its merits which it has awaited for eight years.