Wilson and Beverley, JJ.
1. This was a suit brought by the plaintiff's to establish their zamindari right to certain lands as having re-formed on the original site of Mouzah Boyrampore or Boyamari within the plaintiffs' permanently settled mehals of Pergunnah Luskurpore, and to have it declared that the Government had no khas right in the said lands, and that they were not liable to a fresh assessment of land revenue.
2. The plaint alleges that Mouzah Boyrampore formerly comprised some 7,284 bighas, but that the greater part of these lands had diluviated at the time of the revenue survey in 1849; that after that survey the whole of the lands disappeared, but that from 1865 portions began to be re-formed on the original site; that in 1868 the Government made a dearah survey of the lands thus formed, and on May 6th, 1871, settled them with two of the zamindars for a term of ten years 'after maintaining the right of the proprietors;'and that since the expiry of that settlement the plaintiffs had been in possession as owners.
3. The plaint is inconsistent and indistinct. In one place it asserts that the Government was itself claiming the zamindari title to the lands in dispute, and in another that the Government had recognised the zamindari rights of the plaintiffs, and had merely imposed an additional assessment on the lands.
4. The defence was virtually that the lands in suit, having been found at the time of the dearah survey, to be excess lands gained by alluvion since the date of the previous survey, had been settled under the provisions of Section 6 of Act IX of 1847, and that under Sections 6 and 9 of the Act that assessment was final and, not liable to be set aside in a Court of Justice. It was further contended that the plaintiffs not having been in possession of the lands in dispute as zamindars within twelve years before suit, their claim was barred by limitation,
5. Several issttes were framed in the case, of which the second and third were as follow:
2nd,--Whether the suit is barred by limitation?
3rd.--Whether plaintiffs are barred from bringing this suit, the lands in dispute having once been assessed as excess lands under the sanction of the Board of Revenue?
6. The lower Court has found both these issues against the plaintiffs.
7. As regards the question of limitation, we are unable to see how it can arise in the present suit. The case for Government is (see paragraph 7 of the written statement) that at the time of the dearah survey the lands in suit were found to be excess lands, which had accreted to the estates of the plaintiffs and their co-sharers, and that they were merely assessed with additional revenue as such accretions. It is no part of the defence that the lands were ever claimed by Government as the property of the State. The settlement proceedings show that the proprietors of all the nine mehals to which the lands were found to have accreted were invited to accept the settlement, and the settlement was made with the owners of two mehals only, because the others either refused to take it or omitted to appear. Malikana was, however, reserved for them; and although those owners who took the settlement are styled ijaradars, the meaning of that phrase apparently was that the settlement was a temporary one only, and it cannot be contended from its use that the Government either had, or intended to set up, a proprietary interest adverse to the plaintiffs. On the contrary, the possession of the settlement holders must be taken to be the possession of the zamindars; and the question pf limitation does not therefore arise.
8. On the second point we think that Section 9 of Act IX of 1847 does not apply to the present suit. This is not a suit against Government or any of its officers on account of anything done in good faith in the exercise of any of the powers conferred by that Act. On the contrary, it is a suit for a declaration that the provisions of that Act are inapplicable. We agree with the remarks of Phear, J., in the case of the Collector of Moorshedabad v. Dhunpat Singh 15 B.L.R. 49 : 23 W.R. 38 that 'the words of this section seem to be limited to forbidding a suit wherein the plaintiff seeks to make Government or any of its officers responsible in damages on account of anything done in good faith in the exercise of the powers conferred by the Act.'
9. The next question is, whether the Subordinate Judge was right in holding that the suit was barred by the provisions of Section 6 of Act IX of 1847.
10. That section runs as follows:
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 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 Sudder Board of Revenue, whose orders thereupon shall be final.
11. What we have to consider is, what interpretation is to be put on these words, that the orders of the Board of Revenue on the proceedings of the local revenue authorities shall be final? Is it intended that the Civil Courts shall be precluded altogether from enquiring into the legality of the proceedings of the revenue authorities; or are the orders of the Board final only as regards the conduct of the proceedings and the amount of the assessment?
12. By Section 11 of the Code of Civil Procedure the Civil Courts have jurisdiction to try all suits of a civil nature, excepting suits of which their cognizance is barred by any enactment for the time being in force.
13. The present suit is not brought to contest the amount of the revenue assessed upon the lands in dispute, but to contest the right of the revenue authorities to assess those lands with any additional revenue at all.
14. The right to assess alluvial increments with Government revenue is conferred by Regulation II of 1819, Section 3, Clause 2; and Sections 24 and 26 of that Regulation provide for the institution of civil suits in certain cases to contest the awards of the revenue authorities.
15. Similarly, Clause 3 of Section 14 of the Settlement Regulation (VII of 1822) runs as follows: 'The decisions passed by the Collectors under the above powers, if not altered or annulled by the Board or by Government, shall be maintained by the Courts, unless on an investigation in a regular suit it shall appear that the possession held under such a decision is wrongful and nothing herein contained shall be understood to authorize any Court to interfere with the decision of the revenue authorities relative to the jama to be assessed on any mehal or portion of a mehal, or to the extent and description of lands belonging to any mehal that may be assigned on the partition of the same to the several parceners concerned.'
16. In the case of Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 note : 18 W.R. 94, it was found as a fact that the lands in dispute were lands added to the estate within the meaning of Section 6 of the Act, and it was accordingly held that the Act applied, and that the orders of the Board of Revenue in regard to the assessment were final.
17. So in the case of Collector of Moorshedabad v. Dhunput Singh 15 B.L.R. 49 : 23 W.R. 38, the orders of the revenue authorities were held to be final, but only ' as regards the person whom they may directly affect, viz., the zamindar.'
18. We think, therefore, that the words of the Act and the reported cases go to this extent, that when an assessment has been made under Section 6 of the Act and approved by the Board of Revenue, that assessment is final and cannot be called in question in a civil suit. But the fact of an assessment having been made is no bar to an enquiry as to whether the Act applied, and whether the revenue authorities had any right to make the assessment-in other words, whether they had jurisdiction under Section 6 of the Act. That is a question which we think it is open to the Courts to try, and that is precisely the question raised in the present suit.
19. It is contended before us that Act IX of 1847 was intended only to apply to lands gained by alluvion or dereliction from the sea or rivers in which no proprietary title existed, and that it-does not apply to land re-formed on the site of a permanently-settled estate.
20. We think, however, that on the face of the Act itself and the decisions of Dewan Ram Jewan Singh v. Collector of Shahabad 14 B.L.R. 221 note : 18 W.R. 64, Ram Jewan Singh v. Collector of Shahabad 19 W.R. 127, and Collector of Moorshedabad v. Dhunput Singh 23 W.R. 38 this contention cannot be allowed to prevail. 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 ease 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.
21. In the present case the revenue survey admittedly took place in 1849; and if, as compared with the state of things ascertained at that survey, an accretion was found to have taken place at the subsequent dearah survey of 1867-68, we think the revenue authorities were bound by the provisions of Section 6 of the Act to assess such accretion.
22. Now it appears from the evidence that in 1868 there was an accretion to the estate mouzah Boyrampore as compared with the survey of 1849; and that being so, we must hold that the Act applied, and that the accretion was liable to assessment. It is true that (if we understand the settlement proceedings aright) the entire area found in 1868 was assessed without any deduction for the area existing in 1849, apparently on the ground that in the meantime the whole of the lands had been diluviated. But this objection to the settlement proceedings has not been taken in the present suit, and even if it had been taken, it is open to question whether we could have interfered. The matter was one affecting the settlement proceedings in respect of which the orders of the Board of Revenue are declared to be final.
23. That the excess lands, however, were liable to assessment, seems to admit of no doubt, and we think, therefore, that the suit was rightly dismissed.
24. The appeal is accordingly dismissed with costs.