1. The plaintiff brings her suit for a declaration that the orders of the Board of Revenue whereby certain char land has been assessed to additional revenue under Act IX of 1847 are ultra vires and invalid. The land in question is an area of over 10 acres or 30 bighas. The mouza in which the plaintiff is interested is a mouza called Chandigram and, on the opposite side of a certain river or rivulet, as to which I shall say something in a moment, there is another mouza called Pathril. The plaintiff's mouza lies within a Parganah called Kagmari and, on the opposite side of the river already mentioned, facing Kagmari is a Parganah called Atia. The 10 acres in suit are shown in the Thak and the Revenue Surveys of 1850 and 1851 in this manner:-There was at that time undoubtedly a river known as Alam. The Revenue Survey Map shows it in 1851 as a flowing river. Between the plaintiff's mouza and the opposite mouza, the line of demarcation is put in the middle of that river; but, on other points in its course, the whole of the bed or area of the river is comprised, according to the Revenue Survey Map, within the mouza on one Bide. There is this difference between the Thak and the Revenue Survey that the Thak seems to show that in 1850 the river was very small, in parts had dried up and in parts was merely stagnant water. Both the Courts below have taken the view that on that point the Thak is more likely to be accurate than the Revenue Survey Map. It being common ground that the lands in dispute now are thrown up from or are part of the dried up bed of that half of the river Alam which has been allotted to the plaintiff's mouza in the Revenue Survey, the question at issue in the suit was this: the plaintiff maintained that the river Alam was a river which had come into existence very soon after the year 1800 as one of the effects of a large and well-known change in the course of the great river Bramhaputra. She conceded therefore, that for something like hundred years the Alam had been in existence; but she maintained that at the time of the Decennial Settlement the Alam was not in existence and that these lands which afterwards became part of the bed of the river Alam were dry lands at the time of Decennial Settlement, were included as such in her revenue-paying estate, and were not liable to additional assessment. On the other hand, it was contended for the Secretary of State that these lands forming part undoubtedly for nearly hundred years of the bed of the river Alam were at the time of the Decennial Settlement part of the bed of that very same river which existed from before the date of the Decennial Settlement and which did not come into existence for the first time after the year 1800. It was contended, moreover, that in 1793 this river was a navigable river; but on that point both the Courts below have held against the claim of the Secretary of State. Upon the issue whether a river flowed over these lands at the date of the Decennial Settlement, the main evidence-indeed the only evidence-was a map prepared by Major Rennell and belonging to the year 1764-1765. In his map a small river is shown at or about this place. It is a map of river routes and inland navigation. The contest was whether that map shows that the Alam which is known to have flowed over these lands soon after the beginning of the nineteenth century was flowing over them in 1764-1765. The trial Judge came to the conclusion that the Alam came into existence as a result of the change of course of the Bramhaputra and the coming into existence of a great diversion of those waters known as the Jumna. The lower Appellate Court which is the final Court of fact has come to the conclusion on the basis of Major Rennell's map that the Alam existed over these lands at the date of the Decennial Settlement. Its reasoning on a matter of fact may be canvassed, but not in this Court. It is only fair to say, however, that the main fact upon which the learned Subordinate Judge relied was this that, according to everybody's case, the Alam as known during the 19th century was a dividing line not only between these two mouzas Chandigram and Pathrail but between the two Parganahs Kagmari and Atia throughout a very zigzag part of its course. As it is quite clear that these Parganahs became divided from each other at the time of the Permanent Settlement, the learned Judge would appear to have great reason to conclude that there was a river there at that date. On this basis, he concludes that the existence of the river about that spot shown by the map of Major-Rennell is sufficient to entitle him to find, as he does find, that the lands in suit form the bed of the Alam of Major Rennell's map. At the argument, it was contended by Babu Joges Chandra Roy for the respondent that this finding had been arrived at by an error of procedure and he contended also on the basis of certain modest expressions in the judgment of the learned Judge that the finding as given was contradictory and improper. The only error of procedure suggested was that the learned Judge was obliged to have a Commissioner appointed to endeavour to relay from Major Rennell's map the exact course of this river in 1765. At the beginning of his judgment, the learned Judge says that he feels hesitation in upholding the finding of the Court of first instance. Later on he says: 'I am inclined to believe and find that unnamed river in Major Rennell's map was no other than Alam.' And he says further: 'So far as the land in suit is concerned it can be said with a considerable degree of certainty that it formed the bed of Alam of Major Rennell's map.' It seems to me that there is no error of procedure by reason of the fact that the learned Judge did not at the appellate stage order a commission to relay the map of Major Rennell. I am inclined to think that a more useless process could hardly be suggested. The learned Judge's language is language which suggests at certain stages difficulty and hesitation. But he does definitely say that he finds that the Alam existed over the lands in suit from before the Decennial Settlement and he says that more than once. If one had reasonable ground for supposing that the learned Judge in making his finding in a case of this sort was abandoning himself to guess work and was unaware of the definition of 'proof' in the Evidence Act, one might be inclined to reject his finding altogether. But I cannot think that in this case that would be a fair construction of the position. I have no doubt that the learned Judge balancing the considerations came to the conclusion for the reasons I have indicated that it was incredible that these lands between these two Parganahs were anything else than the bed of a river existing at the date of the Decennial Settlement.
2. The next question is whether that finding does not entirely conclude the case in favour of the Secretary of State and in this connection, the decision of the Privy Council in Secretary of State v. Maharajah of Burdwan A.I.R. 1922 P.C. 6 has to be considered. Without travelling into any part of the Bengal Regulations which are not expressly dealt with in that judgment, the position may be seen to be this: first of all, at the Decennial Settlement, the principle applied was an ancient principle in this country to the effect that of the produce of every bigha of land some part-in money or in kind-should go to the ruling power. The next thing is that when the Decennial Settlement was made permanent, it was made permanent on certain terms to be found in the old Regulations. Some of those terms are written at large in Reg. I of 1793 but only some of them. For example, Thanadari jamas or grants are dealt with; said collections or internal dues are dealt with. There is an express saving of the right of Government to make laws for the welfare of the cultivators and so on. But after that Regulation when the Government came to work it, it was met with many difficulties arising from the fact that the Decennial Settlement was not one based upon a careful and accurate survey. Accordingly, for the purpose of distinguishing between lands in fact comprised in the Permanent Settlement and other lands unsettled or claimed to be held revenue-free, a Code of Regulations had to be formulated as early as 1819; and that is the basis of the legislation on the present question. Reg. II of 1819 was meant to do three things that are stated in its preamble. The chief thing was to make a workable system whereby the necessary enquiries into title to lands could be carried out. The Privy Council in Secretary of State v. Maharajah of Burdwan A.I.R. 1922 P.C. 6 founded their decision upon Section 3 of that Regulation read with Section 31 and also upon the 4th Rule laid down in Reg. XI of 1825 which was a Regulation amending and stiffening up the provisions of Reg. II of 1819 and they have held that, according to the statutory exposition of the rights of parties, land covered by water at the time of the Permanent Settlement, while it may be included within the ambit of a settled estate, was not land deemed to be already assessed but was land which, by the express words of these Regulations, was to be liable to additional assessment, if it appeared and came into existence as land subsequent to the settlement. Those conclusions are apparent on the face of the sections of the Regulations which they quoted and no good purpose will be served by going over them again.
3. Now, the plaintiff's whole cause of action in this case is that the orders of the Board of Revenue are ultra vires of the Board of Revenue as conferred by Reg. II of 1819 modified by Reg. XI of 1825 and finally by Act IX of 1847. If, then, it be taken as a fact that, at the date of the Decennial Settlement a river was flowing over the lands in suit, it is not arguable that the Board of Revenue have acted illegally or ultra vires in applying to these lands the express declarations of Reg. II of 1819 and the Regulation amending that.
4. It was contended and very closely contended by Babu Joges Chandra Boy for the plaintiff-respondent, first, that there was a finding of fact by the lower Appellate Court that notwithstanding that at the date of the Decennial Settlement the suit lands were under the river, nevertheless at that date they had been specifically assessed to revenue and he contended further that if the finding does not amount to that, at all events that is a question upon which the case should go back for a finding. In my opinion, that contention is wholly misconceived. To begin with, there is no such finding. The lower Appellate Court was dealing with facts upon the law as laid down by this Court prior to the decision by the Privy Council in Secretary of State v. Maharajah of Burdwan A.I.R. 1922 P.C. 6. According to that law, although land was under water at the time of the Decennial Settlement, nevertheless if it was included within the limits of a settled estate it could not be assessed under Act IX of 1847 to additional revenue. On the question whether these lands were within the limits of the plaintiff's mouza it was important to consider whether at the date of the Decennial Settlement the river Alam was navigable or non-navigable, because, prima facie, at all events, the bed of a navigable river is part of the public domain. In discussing that question, the learned Subordinate Judge gives many reasons for holding that the river was non-navigable, and then he adds some other circumstances in this connection which he omitted to refer to in the course of his reasoning. The circumstances he mentions are that in the Revenue Survey Map half of the river was included in the plaintiff's mouza and half in the opposite mouza. He says: 'This could not be a thoughtless work because in other places the whole of that river has been wholly included in one bordering village. Including this half in Gramchandi the area of the Gramchandi was shown as 186.2 acres in the Revenue Survey Map. That area was also reproduced in the mouzawari Register of the Collector which implies that the said area was treated or accepted as revenue-paying.' Accordingly, he says that if one finds it treated or accepted as a part of the revenue-paying estate, that is fair evidence to show that it is not the bed of a navigable river which would be part of the public domain. I may confine myself, therefore, to considering the question whether this case should go back to enable the plaintiff to allege and prove and obtain a finding that at the date of the Decennial Settlement the lands covered by the waters of the river Alam were assessed to revenue. The circumstance that in the Revenue Survey Map half of the area of the river shown as a flowing river is included within limits of the estate is, of itself, no evidence to show that at the date of the Decennial Settlement, apart from jalkar rights or collections from ferries or said rights of some sort, there could possibly be any produce of such lands in 1793. Everything that we know about the Decennial Settlement shows how impossible it is to suppose that, apart from such rights as those, lands covered with water would be producing crops, part of the produce of which would go to the ruling power; and the circumstance that in the mahal or mouzawari Register of the Collector under the Land Registration Act of 1876 the area figure is repeated from the Revenue Survey of 1851 takes the matter no further. It is perfectly true that half of the river bed would be included within the ambit of the estate settled. It is perfectly incredible that the revenue settled upon that estate on the basis of a share of the produce could have been on any principle assessed upon land over which water was flowing. The whole attitude of the Courts of law to these matters has been changed by the decision in Secretary of State v. Maharajah of Burdwan A.I.R. 1922 P.C. 6. If it is sufficient to show that land covered with water was part of the area of the estate, no doubt the Revenue Survey Map, the mouzawari Register would be most important things. The basis of the Privy Council decision is that property is one thing and assessibility is another and that these titles were only made permanent upon an express declaration that whenever lands emerge from rivers, even from shallow rivers they are liable to additional assessment. In the present case, it seems to me that on the evidence the plaintiff has not made a beginning in the way of evidence in favour of the theory that contrary to what the Regulations say, contrary so far as I can see to the commonsense probabilities of the matter, land lying under water on the margin of the mouza was actually treated as producing crops or other produce and that part of what it was supposed to produce was added to the revenue assessed. If it were true, I find it difficult to see how on the face of the Regulations it would make her any better off in her task of showing that the Board of Revenue have acted ultra vires. The truth is that if in such a case as this by the production of the Kanongoe's dowl at the time of the Decennial Settlement it could be shown that a particular small plot of land was specifically treated as producing crop that would be an admirable evidence to displace the contention that such land was covered by a river. But if it be true that the land was part of the bed of any existing flowing river at the time of the Decennial Settlement, this would seem prima facie to amount to an absolute contradiction between the facts as supposed by the Regulation and the facts as proved. In my judgment, on the materials in this case, to send it back to the Court below inviting it to find that, notwithstanding the whole principle of the Decennial Settlement, these ten acres in the bed of a river we're specifically assessed in 1793, to revenue, on the basis of the fact that the Revenue Survey 1850 included them within the limits of plaintiff's estate, would be a wholly vain and idle procedure. For these reasons, it appears to me that in the long run the Secretary of State's defence must prevail, that the appeal should be decreed and that the plaintiff's suit to have it declared that the orders of the Board of Revenue are illegal and ultra vires fails and must be dismissed.
5. The cross-objection of the plaintiff-respondent is also dismissed.
6. We make no order as to the costs of the parties in any of the Courts.
7. I agree both in the judgment which has been delivered by my learned brother and also in the reasons upon which it is based. I have, therefore, very little to add to the observations which have fallen from him. The issue of law raised in this appeal is, in my opinion, concluded against the respondent by the decision of the Judicial Committee of the Privy Council in The Secretary of State for India in Council v. Maharaja of Burdwan A.I.R. 1922 P.C. 6. Prior to that decision a distinction had been drawn between the assessibility of chars forming in a navigable river and those forming in a non-navigable river existing at the date of the Decennial Settlement, upon the ground that if such a river was non-navigable, the bed formed part of the settled estate, and must be regarded as having been taken into account at the time of the settlement. That distinction was disapproved by the Judicial Committee of the Privy Council in Secretary of State for India v. Burdwan A.I.R. 1922 P.C. 6. At p. 116, Viscount Cave in giving the judgment of the Board stated: ' The ownership of the bed may determine the proprietary rights in the chars, but property is one thing and assessibility is an another. The Regulation declares in terms that the new chars are to be included in the category of unsettled, lands, and contains no exception for chars formed upon a river bed belonging to a settled estate. Such chars must, therefore, be treated as unsettled. This conclusion is strongly supported by the terms of Reg. XI of 1825 which deals with the rules to be observed in determining claims to lands gained by alluvion or dereliction. The fourth rule laid down in that Regulation, while providing that ' in small and shallow rivers, the beds of which, with the jalkar rights of fishery, may have been heretofore recognised as the property of individuals, any sand bank or char that may be thrown up shall as hitherto, belong to the proprietor of the bed of the river,' adds the words 'subject to the provisions stated in the first clause of the present section.' These last mentioned words refer to the proviso to the first clause, which prevents the owner of an increment of land gained from a river or the sea from being exempt from assessment to revenue under Reg. II of 1819; and they show conclusively that the intention of the Regulation was to provide that all chars newly formed since the Decennial Settlement;, though upon a river bed which is recognised as the property of the owner of the settled estate, are to be treated as land gained since the settlement and liable to be assessed accordingly.' The issues in this case, therefore, are these; first, was the river Alam in existence at the time of the Decennial Settlement; secondly, was the land in suit formed out of the bed of the river Alam since the date of the Decennial Settlement? Upon those issues of fact, the lower Appellate Court has given an answer in the affirmative in each case. Therefore, the only question which can be raised before us is whether there was any evidence to support these findings. No doubt, with respect to questions relating to the situation of land and its condition in a District such as that in which are the lands in dispute in this case, it must be to some extent a difficult matter to arrive at a definite conclusion. But the lower Appellate Court after not unnatural hesitation has come to a definite finding of fact in favour of the Secretary of State in respect of each of these questions, and, in my opinion, it is impossible to hold that there was no evidence before the Court upon which it could reasonably have found in the sense that it did. Under those circumstances, there is an end of the matter, and I agree that the appeal should be allowed.