1. This appeal arises out of a suit for possession of certain plots of land, on the allegation that some of the plots were re formations on their own land, that the remaining plots were accretions to the lands re-formed, and that the defendant No. 1, the Secretary of State, settled the lands with defendants Nos. 2 to 5 disallowing plaintiffs' petition for settlement.
2. The Court below gave a decree to the plaintiffs for possession of the portion of the land found to be re-formation of plaintiff's land and dismissed the suit in respect of the portion which was claimed as an accretion. The portion which was found to be re-formation of plaintiffs' land consisted of Dags Nos 6889 and 6890 and portion of 6888, and the claim of the plaintiffs was decreed in respect of such plots. The appeal, therefore, relates to the land situate to the north of Dag No. 6891, and to the west of the northern part of Dag No. 6888 and the land to the west of the Dag No. 6890.
3. Cross-objections have been preferred by the respondents Nos. 2 to 5 with whom the lands were settled by the defendant No. 1 (the Secretary of State) and relate to Dag No. 6889, the northern portion of Dag No. 6888, and the northern portion of No. 1762. There is no cross-objection with regard to Dag No. 6890.
4. As the cross-objection raises the question of the correctness of the finding of the Court below in favour of the appellant we would dispose of the cross-objection first.
5. It is contended on behalf of the respondents that the kabuliyat dated the 19th March 1916 (Exhibit 5) under which the defendants obtained a lease from Rome of the Duttas who had 12 annas share of the lands refer to the entire Dag No. 1762 which comprises these plots and Dag No. 203 (which is not covered by the suit).
6. It is urged that the description in the document is absolutely clear, that there being no ambiguity, the Court ought not to have ordered a local investigation; and that the entire Dag No. 1762 according to the description falls within the kabuliyat. The kabuliyat no doubt, refers to Dag No. 1762, but it is contended on behalf of the appellant that the word 'entire' refers only to Dag No. 203 which does not relate to any land in suit. However that may be, the kabuliyat purports to demise lands ' appertaining to Taraf Azam Fateh' which the lessors obtained tinder the patta dated 8th Joist 1210 Maghi (20th May 1848). The lease, therefore, was in respect of lands of Taraf Azam Fatch only; it had nothing to do with Taraf Joy Narain Ghoshal.
7. It is also to be observed that the patta dated 20th May 1848 [Exhibit 1 (1)] raters only to Dag No. 6888 (the southern portion) which corresponds only to part of Dag No. 1762. Neither No. 6889 nor No. 6890 ever belonged to Mahal Azam Fatsh, but belonged to Taluk Joy Narain Ghoshal. The kabuliyat, dated 19th Marsh 1916, does not mention Joy Narain Ghoshal at all.
8. It is contended on behalf of the respondents that the area mentioned in the kabuliyat would cover the entire land. That is not clear. But even if it is so, the boundaries also should be taken into consideration. The western boundary of No. 6891 would not cover the entire western boundary of No. 1762; it would cover only a portion of the western boundary. Having regard to the facts mentioned above, and taking the document as a whole, we think that the Court below is right in holding that the defendant's lease did not cover the Dags decreed to the plaintiff, and that the cross objections mutt fail.
9. Turning now to the appeal its if, the first question to be considered is whether the land in respect of which the plaintiff's claim has been disallowed, was an accretion to the plots of land which have been decreed to the plaintiffs and whether the Court below is wrong in holdup that it was not an accretion.
10. It is contended on behalf of the appellant that there was no defence by the Government that the accretion was not gradual and imperceptible, nor was there any evidence in support of such a case and we were referred to the evidence of some of the witnesses to show that the accretion was gradual and imperceptible.
11. It appears, however, that all the lands now in dispute were in existence in. 1839. They were submerged shortly after, and re-appeared shortly before the Cadastral Survey. They can be, and have been, identified by the Commissioner who in his report (which has not been challenged by either party) states that they are re formations in situ of Mouza Kattali. In a suit brought by the Duttas in 1914 in respect of Dags Nos. 6882 and 6888 they stated that the western portion thereof had been washed away by the sea long ago and re formed in situ since a few years before the Cadastral Survey If the lands are re-formations in situ the question whether the accretion was slow and imperceptible or not does not arise. The Court below has held that they are re formations in situ of lands belonging to the Government and has also found that there was no gradual and imperceptible accretion.
12. The plaintiff No. 2, Gouri Charan, admits in his deposition that the 'western portion of the disputed lands which have filled up is Government noabad property.' He adds: 'I tried to have a settlement of it as an accretion to the kaimi mahal on the east but got none, I am ready to pay fair and equitable rent for that portion' and in another place he admitted 'the said accreted land is noabad land but I can't say if it is Shabek noabad.'
13. We accordingly agree with the finding of the Court below on this point.
14. It is contended, however, that even if the land is not an acoretion to the plaintiffs' land, they were entitled to the settlement of the land on the ground of contiguity and possession. It has been strongly urged before us that the defendants Nos. 2 to 5 obtained settlement from the Secretary of State (defendant No. 1) on the representation that the entire Dag No. 1762 belonged to them, that in is now found by the Court below that Dag No. 1762 belongs to the plaintiffs and that, therefore, the ground upon which the lands were settled with defendants Nos. 2 to 5 fails.
15. There is no doubt, as would appear from the application for settlement made by the defendants, dated the 8th November 1916, that they prayed for settlement on the ground of their having obtained pattah of the lands from the Duttas, and having been in possession of the ' raid land along with the Dag No. 1762 as appertaining to the said raiyati.' In the order sheet of the Khas Tehsildar, dated 23rd April 1917, it is stated that ' Faizali and others claim it on the ground of possession as contiguous to the lands of their jote comprising C. S. Plot No. 1762,' and again 'Faizali is possessing not only the decretal land but the whole of C. S. plot No. 1762 and the present plot No. 18.'
16. The Khas Tehsildar evidently was under the impression that the lease obtained by Faizali and others from the Dutta comprised the whole of plot No. 1762. He sayst 'Durga Charan Dutta relies more upon the boundary than upon the plot number given in schedule of the jote lease granted to Faizali and others. But from the jots lease - itself it is quite clear that the whole of plot No. 1762 and a portion of khas plot No. 692 were settled with Faizali and others.' The Khas Tehsildar took a kabuliyat from the defendant on that very day (23rd April 1917). The Collector approved of his order on the 4th May 1917. The Khas Tehsildar received rent on the 18th June 1917 from the defendants, though a patta was granted later on the 26th July 1917. The Commissioner upheld the order of the Collector on the 17th August 1917. The Khas Tehsildar who has been examined in the present case says that he did not make any inquiry as to any accretion as it was not an accretion ' ' and that other lands in the chur were also let out cot on the ground of accretion but on the ground of contiguity end possession.'
17. The Secretary of State in his written statement stated: 'The said land being situated contiguous west of C. S plot No. 1762 which is covered fully by the lease of defendants Nos. 2 and 3 of date 6th Chaitra, 1277 granted by defendants Nos. 7, 8 and 11 was settled with defendants Nos, 2 to 5 on 23rd April 1917.'
18. There is no doubt, therefore, that the lands were settled with the defendants on the ground of contiguity and possession.
19. It is contended on behalf of the respondents that the land might have been settled on the ground of its being contiguous to plot No. 6891 which belonged to Rezakali--one of the persons who obtained settlement of the land from Government, Bat the order sheet of the Tehsildar shows that the land was settled on the ground that it was contiguous to Dag No. 1762.
20. Then it is contended on behalf of the respondents that the plaintiffs were not in possession of these lands. The respondents do not say they were in possession of these lands before they obtained settlement. What they say is that the lands were sandy and chur and not capable of cultivation, and that at that time no cultivation was possible without raising an embankment and so, after obtaining settlement, they constructed bunds and brought the land under cultivation.
21. Reference is also made to an application submitted by the Duttas in Settlement Case No. 200 of 1916-7 dated the 17th February 1917 in which it was stated that the land on the western part does not yield any paddy even now. It remains under deep water in the rainy season. I possess by catching fish, etc.
22. Reference is also made to certain ek sona kabuliyats produced on behalf of the plaintiffs and certain other documents to show that the western boundary of the land dealt with by them was described as dhum chur or sandy chur. It is accordingly contended that the lands were not cultivated and that they were not in possession of the plaintiffs,
23. In the 10th column of Exhibit 25 (Dispute in settlement operation), however, it is stated that the khan mahal Dag No, 18 (which comprises the whole of the disputed land) was formerly possessed by Ram Chandra Dutt and that then it was possessed by Faizali and others since is was leased to them. It also appears from the report in the Settlement Case of 1909 10 that certain persons, the Datta among them, had trespassed on the lands of Dage Nos. 644 and 692 without the permission of Government and had sowed paddy therein. Dag No. 692 comprises the disputed lands and it is stated in the report with reference to Dag No. 692 that ' there will be about 500 Aria of paddy.' This report was on the 4th November 1911.
24. The learned Pleader for the respondents Nos. 2 to 5 contended that the report referred to plots Nos. 6S89 and 6890; but it refers to Dag No. 692 which comprises all the plots. The Khas Tehsildar in his deposition says that he learnt on inquiry that paddy was being grown on the land for the previous two or three years, This inqury he made just before the settlement with the defendants,
25. Now, the defendants, as already stated, do not claim to have been in possession prior to their obtaining settlement from Government and if any one exercised possession over the lands, it must have been the plaintiffs, who were in possession of the lands to the east. The evidence shows that, at any rate, the land was under cultivation for two or three years before 1917, even if we agree with the Court below in holding that the oral evidence as to possession adduced by both parties is not satisfactory, The learned Subordinate Judge, however, in considering the question of limitation says:
On the evidence and probabilities, there-fore, I find this issue partly for the plaintiffs.
26. It is contended on behalf of the respondents that the Court below merely meant to hold that the suit was not barred with respectto the plots for which the plaintiffs got a decree in that Court. But that is not so, as appears from other passages in the judgment, namely, 'i have disbelieved the defendant's possession, even bona fide possession in any portion of the disputed land,' and again: 'The mere fact of possession cannot give plaintiffs any right as they have not admittedly acquired any right by adverse possession against the defendant No. 1 who represents the Government.'
27. We are accordingly of opinion that the plaintiffs were in possession of- the lands. The lands were contiguous to the lands of the plaintiffs which were in their possession. The Court below, however, has disallowed the claim for these plots as they are noabad lands.
28. The question, therefore, for consideration is whether in respect of noabad lands, Government has a right to settle lands with whomsoever it likes.
29. That the settlement was made on the ground of contiguity and possession, is dear from the proceedings, and reference is made even to Section 13 of Regulation VII of 1822 in the order of the Khas Mahal Tehsildar. But it has been contended before us by the learned Senior Government Pleader that if Government had an absolute right to settle the land with anybody it liked, it was immaterial what procedure was adopted by the khas mahal officer; and that if any erroneous procedure was adopted by the officers of the Government, it would not create any estoppel or confer any right upon the plaintiffs to claim settlement.
30. The determination of the precise nature of the right of Government in noabad lands is not free from difficulty. The nature and incidents of noabad lands have not been discussed by the Court below. The plaintiffs do cot appear to have raised the question, as their case was that the land was an accretion and that they had a right to settlement. They did not pray in their plaint for settlement of the land on the ground of contiguity and possession though the facts were stated. Subsequently they applied for amendment of the plaint but the application was disallowed.
31. The learned Pleader for the appellants referred to Section 5, Chapter It of the Bengal Survey and Settlement Manual, 1917 (page 2) where it is laid down that 'the assessment of revenue in temporarily-settled private estates will always be made under Regulation VII of 1822. In such estates where there are proprietors but no tenants the whole settlement will be carried out under that Regulation;' and contended that if the lands are to be settled under Regulation VII of 1822, then the appellants have a right to settlement, because under Section 13 of the Regulation, possession is not to be disturbed. But Section 5 of the Settlement Manual deals with the assessment of revenue, and the question before us is whether in noabad lands the Government stands in the same position as an ordinary Zemindar.
32. The cases of Mohomed Israil v. Wise 21 W.R. 327 : 13 B.L.R. 118 and Watson &. Co. v. Ranee Brojo Soondurce Debia 17 W.R. 376, referred to on behalf of the appellant, have no bearing upon the present case. The first deals with a lakherajdar's right to settlement, and the latter with the right to Permanant Settlement of chur lands under Regulation XI of 1825. The cue of Mohini Mohun Doss v. Juggobundoo Bose 9 W.R. 312 also relates to a case of accretion under Regulation XI of 1825. On behalf of the respondents we were referred to certain passages from ' Selections from the Records of the Board of Revenue, L. P. correspondence on the settlement of the noabad land in the District of Chittagong.' The question whether noabad taluks in Chittagong should be treated as ' estates ' is discussed in Mr, Carlyle's letter to the Commissioner of Chittagong dated the 6 th July 1891, (see Volume V, page 143). We have not, however, been referred to any definite and clear decision regarding noabad lands. It appears from the letter of the Government of Bengal to the Board of Revenue dated the 3rd November 1891 (Volume V, page 158, 159) that the noabai talukdars will not have three incidents of the proprietary right, oil,, the right to partition, to a separate account and to malikana. All these refer to noabad taluks. The oases of Prosunno Coomar Roy v. Secretary of State for India in Cauncil 26 C. 792 : 3 C.W.N. 695 : 13 Ind. Dec. (N.S.) 1107 (known as the Ramoo case); and Haider Ali v. Secretary of State 4 Ind. Cas. 49 : 13 C.W.N. 233 : 9 C.L.J. 265 and Ganga Das Sil v. Secretary of Stats for India in Cuoncil 32 Ind. Cas. 752 : 20 C.W.N. 636 also relate to noabad taluks. The learned Government Pleader referred to Sarada Charan Mittra's Land Tenures in Bengal, 2nd Edition, page 42, where it is stated that ' Regulation III of 1828 declared the absolute right of Government to those noabad lands.' Regulation III of 1828 does not, however, appear to refer to noabad lands in Chittagong : Section 13 of the Regulation refers to lands in the Sunderbans. He also referred to Rampini's Bengal Tenancy Act, 4th Edition, page 17, where a reference is made to a latter No. 1792-1793 dated the 24th July 1893 from the Government of India to the Government of Bengal in which it was stated that noabad taluks in Chittagong were to be treated as tenures' and not as 'estates'. That indicates that Government is a proprietor in respect of noabad lands. In the case of Dharma Charan Dey v. Ramesh Chandra Roy 24 Ind. Cas. 820, the learned Judge! observed that noabad land is land which forms part of a Government estate. If noabad is a Government estate., it would be similar to a Government khas mahal, In Aminaddi v. Tarini Charan 52 Ind. Cas. 673 24 C.W.N. 211 at p. 214 : 29 C.L.J. 564 it was observed that as proprietor of the khas mahal, Government stands in the same position as a private Zemindar.
33. As stated above, the real contest in the lower Court did not turn upon the nature and incidents of noabad lands: and although the matter has been argued before us on appeal, and the question is one affecting a large number of interests in Chittagong, it cannot be said that the evidence in the lower Court was directed to the point upon any comprehensive or exhaustive stale. We can only give our decision upon sash materials as have been placed before us in the present case.
34. Having regard to the letter of the Government referred to in Rampini's Bengal Tenancy Act mentioned above, and to the observation in the case of Dharma Charan Dey v. Ramesh Chandra Roy 24 Ind. Cas. 820 it should be taken that the Government stands in the same position as an ordinary Zemindar in respect of noabad lands. And if that is the position of the Government, it may settle lands like any ordinary Zemindar. In the case of Sheikh Hazari v. Khanoo Mirda 4 W.R. 52 it was held that a Collector is not bound to grant a pattah of Government lands to the party in possession. We must accordingly hold that the defendant No. 1 was not bound to settle the lands with the plaintiffs.
35. Settlements made by the Government, however, appear to be made according to certain rules, and in the present case appear to have bean made with reference to Regulation VII of 1822. The lands were settled with the defendants Nos. 2 to 5 on the ground of contiguity and possession. So far as plots Nos. 6888,6889 and 6890 are concerned the settlement with the defendants must fall through, having regard to the finding of the Court below with which we agree. The plots of lands which are the subject-matter of the appeal were also undoubtedly settled with them on the ground of contiguity and possession. It is so expressly stated in the proceedings. It is accordingly urged on behalf of the appellants that when it is found that the settlements with the defendants were granted under an erroneous impression, we should declare that the plaintiffs are entitled to settlement if contiguity and possession are to be considered in, settling lands. The Court, however, can declare the title of the plaintiffs to settlement only if they have got a legal right. As it if, we are unable to make any declaration in favour of the plaintiffs. It is for the Government to consider whether it should rectify its previous erroneous assumption by settling the lands with the plaintiffs.
36. The plaintiffs are entitled to get mesne profits in respect of the portion of the properties decreed in their favour from August 1917, up to the date of delivery of possession, or until the expiry of three years from the date of this decree, which-ever event first occurs with interest thereon at 6 per cent. per annum. There will be no decree against the defendant No. I, as the defendants Nos. 2 to 5 agree to pay the entire amount of mesne profits payable to the plaintiffs. The mesne profits are to be ascertained by the Court below and final decree will be passed by that Court for the amount so ascertained in favour of the plaintiffs. The case will be sent down to the lower Court for that purpose.
37. The result is that, subject to the order for mesne profits mentioned above, both the appeal and the cross-objection are dismissed,
38. The appellant must pay five gold mohurs as costs of the Secretary of State for India and the respondents No?. 2 to 4 must pay one gold mohur to the appellant.
39. No order as to costs in the cross-objection.