1. The District Board of Rangpur instituted three suits being Suits Nos. 496, 497 and 498 of 1935, against the Secretary of State for India in Council. The suits were instituted under Section 106, Bengal Tenancy Act, for correction of the record of rights. All the suits were heard together and partially decreed. No appeal has been filed against the decision in Suit No. 497, and therefore I am not concerned with the decision in that suit. The defendant, the Secretary of State for India in Council through the Agent of the Eastern Bengal railway appealed against the decision of the Assistant Settlement Officer in the other two suits to the Special Judge; he upheld the decision of the trial Court with a small modification in Suit No. 496. He held that so far as that suit was concerned, the plaintiff's case had failed with respect to one of the plots, namely plot No. 669. Against this decision, the Secretary of State for India in Council has filed two appeals to this Court and the plaintiff has filed a cross-objection relating to that part of the decision of the Special Judge which related to plot No. 669. The appeals have been heard together and this judgment will govern both the appeals. After the case of the appellant had been argued for some time, Mr. Gupta appearing on behalf of the respondent stated that he does not press the cross-objection. It is accordingly dismissed. The case of the plain tiff is as follows: C.S. Plots Nos. 6077, 5328 and 4340 which form the subject-matter of Suit No. 495 and C. Section plots Nos. 144, 143, 141, 138, 669, 668, 129, 126 and 777 which form the subject-matter of Suit No. 496 are claimed by the plaintiff as forming part of roads belonging to the District Board; as I have stated before the plaintiff has now given up its claim to plot No. 669. The plaintiff's case further is that these plots were in the permissive occupation of the Eastern Bengal Railway under an arrangement between the plaintiff and the railway. When the settlement record of the area was prepared these plots were recorded in the khatians of the Eastern Bengal Railway as belonging to the railway and were omitted from the khatians of the plaintiff. The plaintiff accordingly brought these suits for the correction of the settlement record by inserting these plots in the plaintiff's khatians.
2. The position taken up by the defendant was that these plots have been properly recorded as belonging to the Eastern Bengal Railway. Another de fence taken was that Suit No. 496 was barred by reason of the provisions of Section 80, Civil P.C. The contention on this point briefly is this: The suit being against the Secretary of State for India in Council, it is necessary under Section 80 that a notice should be served upon the Secretary of State for India in Council; the Section also provides that the suit should not be brought until the expiry of two months next after the notice in writing has been served. The notice in this case was served on 17th August 1935. There-after, it was discovered by the District Board that plot No. 669 had been omitted from the notice. On 23rd August 1935 another notice including this plot was served. The suit was filed on 23rd October 1935. The contention of the defendant is that the time must be computed from the date of the second notice and that as the suit has been filed one day before the expiry of the period of two months from that date the suit is premature. The other de fences taken in the Courts below have now been abandoned. Both the Courts have held that Suit No. 496 is not premature. They have also held that the land which forms the subject-matter of these appeals belongs to District Board and not to the railway. They have found that the railway is in possession of the land with the permission of the District Board for certain limited purposes. The final, order passed by the lower Appellate Court is that the land which forms the subject-matter of these appeals shall be recorded in the khatians of the District Board and that in the remarks column of the khatians there should be a remark that the land is in the permissive possession of the eastern Bengal Railway.
3. Against this decision, the defendant has appealed. The learned junior Government Pleader appearing on behalf of the appellant urged three points before me. First, he said that the suit is premature by one day inasmuch as it has been brought before the expiry of two months from the delivery of the notice which had to be served on the appellant by reason of the provisions of Section 80, Civil P.C. Secondly he says that as the railway is admittedly in possession of the land which formed the subject matter of both the suits, the Revenue Officer was bound to record it in the appellant's khatians. He argues that the settlement record is prepared with reference to actual possession only and not with reference to title and that therefore even if it be conceded that the title is in the District Board, nevertheless, the District Board can get no relief in a suit framed under Section 106, Ben. Ten. Act. The third point taken is that the plaintiff has failed to establish its title to the land of these two suits. In my opinion, there is no substance in the first point taken. The first notice with respect to Suit No. 496 was served on 17th August 1935 and the suit has been brought on 23rd October 1935. If the first notice be considered as subsisting then the suit is not premature as it has been brought after the expiry of two months from the date of service of the notice. The contention of the learn ed junior Government Pleader is that the first notice has been annulled by the second one and that the suit must be considered as having been filed with reference to the second notice. Mr. Gupta, appearing on behalf of the respondent, points out that this is not so. He shows that the second notice was stated to be in continuation and in modification of the first one. In my opinion the second notice nowhere annulled or cancelled the first one. It merely amplified it by adding plot No. 669 to the subject matter of the suit. The introduction of plot No. 669 was made too late and therefore the plaintiff-respondent has not been given any relief with respect to that plot; but it cannot be said that the second notice had the effect of cancelling the first one. The Secretary of State for India in Council had intimation by the first notice of the suit and the suit has been brought after the expiry of two months of that information. The requirements of Section 80 have been fully complied with. The second notice was served merely for the purpose of including plot No. 669. It cannot be reasonably argued; that because of this attempt on behalf of1 the plaintiff to add a new plot to the subject matter of the suit, it should be held that the suit so far as it relates to the other plots mentioned in the first notice is' premature.
4. As regards the second point, the argument of the learned junior Government. Pleader is that in a suit under Section 106, Ben. Ten. Act, it was not open to the Assistant' Settlement Officer or to the Special Judge to decide the question whether the title to the land in the two suits lay in the District Board or in the railway. He says that the only point which has to be decided in such a suit is whether the plaintiff or the defendant is in actual possession of the land and that when it was found that the railway was in actual possession the matter was concluded and the Courts had no authority to embark upon an investigation into the question whether the plaintiff or the defendant had title to the land. In support of this contention, my attention was drawn to the cases in Mohunt Padmalav Ramanuka Das v. Lukmi Rani (1908) 12 C.W.N. 8. and Brojo Mohan Pal v. Darassan Pal : AIR1929Cal308 . Mr. Gupta on the other hand relied on the cases in Asrafannessa Khatun v. Heramba Chandra : AIR1927Cal216 ,Chandi Charan Law v. Sreemati Lal Bawa : AIR1929Cal385 and also in Brijo Mahan Pal v. Darasan Pal : AIR1929Cal308 which was cited by the learned junior Government Pleader. I have considered these oases and I am of opinion that they do not support the contention of the learned junior Government Pleader that the learned Assistant Settlement Officer or the learned Special Judge decided matters which lay outside the scope of a suit under Section 106, Ben. Ten. Act. It is quite true that the determination of a question of bare title is outside the scope of a suit under Section 106, Ben. Ten. Act. A suit under that Section relates to the Record of Bights and to the correction of the entries therein. Those entries are made on the basis of possession; if an entry can be justified on this basis, i.e. on the basis of possession it cannot be corrected and in such a case no relief can be granted in a suit under Section 106, Ben. Ten. Act, even though as a matter of fact the entry does not represent the true state of facts when viewed at from the point of view of title. A suit for the determination of a bare question of title divorced from possession is not one which falls within the purview of Section 106. But this does not mean that the Assistant Settlement Officer is not under any circumstances to consider questions involving the title of the rival parties. As was pointed out in Apurba Krishna Roy v. Atarmani Dassi (1920) 7 A.I.R. Cal. 900:
Under Section 106 a suit may be instituted for the decision of any dispute regarding any entry which a Revenue Officer has made in the record; such dispute may be between landlord and tenant, as to whether land held rent free is properly so held or as to any other matter. It seems to me that the plain meaning of these words is that the suit relates to the substance of the disagreement between the parties and that when the Revenue Officer proceeds to hear and decide the dispute, he is to determine not merely whether certain words shall or shall not remain unchanged in the record, but whether the fasts described by those words are correct; if he is satisfied that the entry does not describe the facts correctly, he will as a corollary cause an alteration to be made.
5. In order to determine the nature of the possession of a party with respect to a particular piece of land, it may be necessary for the Assistant Settlement Officer in a suit under Section 106, Ben. Ten. Act, to enter incidentally into questions of title. I entirely agree that where a plaintiff admits that he is out of possession and Reeks to recover possession after a declaration of his title to the land, he cannot obtain these reliefs in a suit framed under Section 106, Ben. Ten. Act, because such a suit would involve the deter mination of a question of bare title unaccompanied with possession. In the present case, the position is entirely different. The District Board does not admit that it is out of possession of the land in suit. It claims that the land belongs to it and that the railway is in possession thereof with its permission. In other words, the District Board claims to be in possession of the land through the railway. It does not seek to recover possession on establishment of its title. The question involved therefore relates to the nature of the possession of the railway. If the argument of the learned junior Government Pleader were Right then it must be held that the duty of the Revenue Officer at the time of preparing the record of rights is confined merely to ascertain who is in actual occupation of the land and to record the land in his khatian; but that certainly is not so. The Revenue Officer has to ascertain and record very much more than that. He has to ascertain not merely who is in physical occupation of the land but he has to ascertain further whether such occupation amounts to possession and the nature of such possession. If I may say so with respect, the learned junior Government Pleader has given the word 'possession' to narrow an interpretation. He considers that the words 'possession' and 'occupation' are synonymous. The word 'possession' is not used in that narrow sense in the cases relied upon by him. A person may be in possession of land although he is not in physical occupation of it and mere occupation would not necessarily connote that kind of possession upon the basis of which entries in the Record of Rights are made. It is wrong to say therefore that once it is found that the Eastern Bengal Railway was in occupation of the land in these suits, it is not open to the District Board to establish in a suit under Section 106, Ben. Ten. Act, that the possession of the railway is really the possession of; the District Board. I hold, therefore, that the learned junior Government Pleader has not been able to establish that the suit is misconceived or that the Court below has gone into questions which it was not empowered to do in a suit under Section 106, Ben. Ten. Act. The Court has considered the circumstances and the oral and documentary evidence and it has come to the conclusion that although the railway is in physical occupation of the land the title to the land is in the District Board and the railway is in possession with the permission of the District Board. In my opinion, the Court was entitled to investigate these matters and to come to these conclusions if the evidence establishes them.
6. This takes me to the next question, namely, whether the Court below was right in directing the record to be corrected by including the plots of land which form the subject-matter of these two appeals in the plaintiff's khatian with the remark in the remarks column that they are in the possession of the Eastern Bengal railway with the permission of the District Board. There can be no manner of doubt whatsoever that before the railway got possession of the land in these two suits it was in the possession of the District Board. There is also no doubt that the railway has not attempted to show that it ever acquired the land by any land acquisition proceedings and indeed it is not even suggested before me that the railway acquired the land by these means. In fact there is no evidence to show that the railway acquired title to the land. The evidence discloses that at one time there was a proposal that the railway would acquire the land from the District Board but that proposal fell through. The documentary evidence consists of a series of letters written to the District Board by the railway authorities, by the Collector of the District, by an Under Secretary of the Government and various other Government officials. In almost all these letters, it is either expressly stated or tacitly assumed that the land in these two suits belongs to the District Board and in these letters permission is asked from the District Board on behalf of the railway to do certain things on the land. It has also been found by the Courts below that the lands in the two suits are portions of roads which admittedly belonged to the District Board. The land is at present used as road over which the public have a right of way. It is clear from the correspondence that the railway took charge of the land from the District Board for the purpose of metalling and maintaining it and that the railway always admitted that the land belonged to the District Board. The learned junior Government Pleader suggested that the correspondence containing these admissions could not bind the Government. I cannot understand why they should not be binding on the Government. The admissions are made by the agents of the Government. I shall give a few instances of these admissions. Ex. 1 is a letter from the Executive Engineer of the Eastern Bengal Railway to the Collector of Rangpur. He says in this letter 'the road belongs to the District Board and runs for nearly the whole of this length through railway land.' He then asks for permission to metal the road. Ex. 1(e) is a letter from the Under Secretary to the Government of Bengal to the Commissioner, Rajashahi Division, wherein it is admitted that the road is a District Board road. Ex. 1(f) is a letter from the Collector, Rangpur, to the Chairman of the District Board also admitting that the road is a District Board road. Ex. 1(g), 1(1) are similar letters in which it is admitted that the land in suit belonged to the District Board. These admissions are by the railway, by the Collector of the District and other officers of Government. These documents clearly indicate that the admissions are made by the agents of the Government and, in my opinion, the Government is bound by these admissions.
7. Mr. Gupta on behalf of the District Board contended further that these letters were admissible in evidence not only as admissions made on behalf of the appellant but also as evidence of transactions and particular instances in which the right of the District Board with respect to the land was asserted and recognized. In other words, he says that these letters constitute evidence which is admissible under Section 13, Evidence Act. The learned junior Government Pleader contends that these letters cannot be considered as transactions and he says that Section 13, Evidence Act, has no application. I cannot agree with this view. Section 13, Evidence Act, consists of two parts. The first part deals with transactions and the second part with instances. I do not decide whether the correspondence between the District Board and the different officials would constitute a transaction but the letters certainly are instances in which the right of the District Board to the land which form the subject-matter of these suits was recognized. The correspondence establishes beyond doubt that the railway has no title to the land and that it is in occupation of it with the permission of the District Board to whom the land belongs.
8. My attention was drawn to the provisions of Sections 73 and 75, Local Self .Government Act (Act 3 of 1885) by the learned junior Government Pleader for the purpose of showing that although the District Board may be in control of certain lands used as roads, the property in the land would not necessarily vest in the District Board. He points out that Section 75 enacts that any road constructed by the District Board from the district fund shall be vested in the District Board by which it was constructed and says that there is nothing to show that the roads which form the subject matter in these suits were constructed by the District Board. He argues that it is such roads and such roads only that vest in the District Board. In support of this view he refers me to Section 73 of the aforesaid Act which is in the following terms:
From and after the establishment of a District Board in any district, all roads, bridges, channels, buildings and other property, moveable or immovable held by, or under the control and administration of, the District Road Committee or any Branch Committee in such district for the purposes of the Cass Act, 1880, shall, for the purposes of this Act, (but subject to the provisions of Chap. 3 of Part 3 thereof) be under the control and administration of such District Board.
9. He says that the other roads shall be merely under the control and administration of the District Board and will not vest in the District Board. In my opinion these two Sections do not bear this interpretation. Section 73 merely transfers the control of roads hitherto under the control of certain authorities to the District Board. It does not say that the title of the District Board in the land held by it under Sections 73 and 75 respectively would be different. The Explanation to Section 73 says that the roads, bridges etc. referred to in the Section shall include and shall be deemed to have always included the soil and subsoil beneath those properties excluding the minerals therein. It is really unnecessary for the purposes of this case to determine the exact rights of the District Board in the soil of the roads which belong to them. To do this would be to enter upon an investigation foreign to the subject-matter of a suit under Section 106, Bengal Tenancy Act. What has to be determined is whether the District Board is the owner of the land in its own right and whether the railway is occupying the land with the permission of the District Board. The evidence establishes that the District Board is in possession of the land in its own right and that the railway is in occupation with the permission of the District Board. The learned lower Appellate Court was therefore perfectly correct in holding that the land should be recorded in the khatian of the District Board and not in the khatian of the railway and in directing a note to be made in the remarks column that the railway is in permissive occupation of the land. The appeals are accordingly dismissed with costs.