1. These appeals were heard by our learned predecessors on this Bench. On consideration, they desired to hear argument on a point which was not discussed before them, namely, whether the suit was barred by Article 46 of the Limitation Schedule. They were not able, however, to hear this point argued, before one of them left the Court on leave. The appeal has accordingly been re-heard by us in full.
2. The lands in suit in the present cases are situated in Char Khandkar. It appears that this mehal was let in farm from 1289 to 1298. It was again let in farm for 1299 and again for 1300. Prom 1301 to 1305, it was kept in the direct possession of Government, and it was again let in farm in 1306. The farmers in 1295 settled a holding known as No. 63 with the plaintiffs. But it is alleged by the plaintiffs that in the Settlement proceedings of 1301, a portion of the lands covered by No. 63 was excluded from that holding. They complained to the Settlement Officer who, however, seems to have wholly or almost wholly rejected their claim. The order runs: 'The lands recorded by amins, as comprised in jote No. 63, consist of the hasil lands in their possession, and about 500 bighas of laikabad, the remainder being malany. These lands I consider sufficient, and I order that in the names of the five man in paragraph 2 (i.e, the present plaintiffs) be recorded all those lands. I also hereby reject their claims to any other land.' It would also seem from the proceedings: that the bulk of the lands, for which the plaintiffs' claims were rejected, was claimed as accretion. Be that as it may, the plaintiffs' claim now is that the lands which they unsuccessfully claimed were part of their holding and were wrongly included in the defendants' holdings. They served Government with notice of a suit under Section 424 of the then Civil Procedure Code, and Government finding that the order for the inclusion of the land in the defendants' holdings was wrong, cancelled it in 1311. The defendants, however, dispossessed the plaintiffs and hence this suit. It has been found, however, that the defendants, have been in possession since 1301.
3. The Munsif decreed the suit by what the learned District Judge rightly calls a long discursive rambling judgment. We may take this opportunity of expressing our concurrence with the learned District Judge's condemnation of the practice, now not unusual, of dealing with all the issues in a case together. The whole object of framing issues is to keep the various points arising for decision separate and distinct and to lump them all up together in the judgment defeats the object of the law and cannot but lead to confusion. The learned District Judge allowed the appeal and dismissed the suit on the ground that the settlements with the defendants were valid and, consequently, could not be extinguished by the plaintiffs. The plaintiffs appeal to this Court.
4. A preliminary objection is taken that certain of the respondents have died in each of the appeals and that the appeals have, consequently, abated. The appeals are analogous and have been heard together by consent. Except in the case of Appeal No. 2148, all these deaths occurred after the passing of the Code of 1908. Under Order XXII, Rule 4, the appeals have abated only as against the deceased respondent. In No. 2148, the respondent died in April 1908 and under Section 338 of the old Code, the whole appeal must be regarded as having abated.
5. Dealing with the cases on the merits, we do not think that the decision of the learned District Judge can be sustained on the grounds given. If, as a matter of fact, the land in suit was a part of the plaintiffs' holding, the landlord, who in this case was the Government, could not give it away to another tenant, and the proper question to be tried in such circumstances was not whether the plaintiffs could avoid the defendants' settlement, but whether the land did or did not belong to the plaintiffs and so could not or could be given by Government to the defendants. Prima facie, therefore, the case should go back to the lower Appellate Court for re-consideration.
6. The decision of the learned District Judge, however, has been supported on five grounds. The first is that it is right as it stands. This is based on the argument that if the land really belonged to the plaintiffs. Government may have been a trespasser but still could create a valid tenancy in the defendants. Reliance is placed on Binod Lal Pakrashi v. Kalu Pramanik 20 C. 708. That case, however, seems to us quite different. No doubt, under that decision a proprietor may not be able to eject tenants settled on the land by his rival, even though his rival is found to be a trespasser. But this principle could never be applied and was never intended to be applied to a tenant seeking to recover his own holding.
7. Secondly, it is argued that the learned District Judge's findings of fact are conclusive. The finding on issue No. 9 is not, in our opinion, conclusive because on the face of it, it is a mere deduction from the finding on issue No. 8, and if the lower Appellate Court erred in law in deciding the appeal on issue No. 8, the finding on issue No. 9 must fail with that on issue No. 8. It is also argued that the lower Appellate Court Has found that 'the actual lauds intended to be covered by jote No. 63 were after all settled with the plaintiffs by Government as jote No. 38.' It is said that this is a finding of fact that the plaintiffs have obtained all the land included in the jote No. 63, which is all they claim. But, in our opinion, the meaning of this passage is not that the lands of jote No. 63 and of jote No. 38 are as a fact identical but that jote No. 38 includes all the lands which, in the opinion of the Settlement Officer, were covered by jote No. 6.3. The passage does not touch the question of accretion at all and is not intended, in our opinion, to be a decision of fact.
8. It is argued, thirdly, that the suit is barred by Article 46 of the Limitation Schedule. This is the principal point in dispute. The learned Vakil for the respondents relies on Section 14 of Regulation VII of 1822 which was made applicable to khas mehals by Regulation IX of 1825.
9. The preamble of Regulation VII, omitting what is unnecessary for our present purpose, runs as follows: 'Whereas it has became necessary to declare and enact the manner in which future settlements and revisions of settlement are to be conducted and whereas it is the wish and intention of Government that in revising the existing settlements, the efforts of the Revenue Officer should be directed to the objects of ascertaining, settling and recording the rights, interests, privileges and properties of all persons and classes, owning, occupying, managing or cultivating the land, and whereas it is the desire of Government that the proceedings held and the records formed by the Collectors, when making settlements, should be such as that all demands, claims and suits, may be adjudged and determined according to the facts therein stated, until the same shall have been formally altered, or it shall be shown, by the result of a full investigation in a regular suit, that the proceeding or record of the Collector was erroneous, for the objects above specified the following rules have been enacted.'
10. Then in Section 6 it is made lawful for the Collectors to take measures for the procuring and recording the fullest possible information in regard to the rights, interests, privileges and properties of the agricultural community and to determine the same, with the same powers and authority as they now are or may hereafter be entitled to exercise in forming the settlement of estate open to re-assessment.
11. Section 9 makes it incumbent on Collectors to unite with the assessment 'the object of ascertaining and recording the fullest possible information in regard to landed tenures, the rights, interests, and privileges of the various classes of the agricultural community. For this purpose, their proceedings shall embrace a specification of all parsons enjoying the possession or property of the soil, care being taken to distinguish the real nature and extent of the interest held. The information collected on the above paints shall be so arranged and recorded as to admit of an immediate reference hereafter by the Courts of Judicature.' The Collectors are also empowered to grant pattas to raiyats, and a register of the pattas is to form a part of the ruookary of Settlement.
12. Section 14 authorises Collectors 'in cases, in which any dispute may exist in regard to the nature of the tenure of any person occupying the soil, to declare in an official proceeding the nature and extent of the interests actually possessed by such occupant;' and these decisions are to be upheld by the Courts 'unless on investigation in a regular suit, it shall appear that the possession held under such a decision is wrongful.' The section also gives the Collectors powers to try claims to recover possession, leaving the question of title to the Courts.
13. Those are all the provisions of the Regulation that bear on the question now before us and we are not prepared to hold that it was intended by them that the Collectors should decide disputes as to title between raiyats, in which the zemindars or Sadar Malguzars had no interest, and which could in no way affect the assessment. No doubt, the Collectors had to collect all possible information and had to record who was in possession; and for this purpose, they were obliged to come to some conclusion as to who was in possession and perhaps as to who was entitled to possession. But there is nothing to show that these conclusions were to be regarded as formal adjudications or, to use the phraseology of Article 46, as awards. Section 9, after enacting that this record is to admit of an immediate reference by the Courts, goes on to lay down, not that all decisions, but that decisions on the demands of the zemindars shall be regulated by it. Section 14 also gives the Collectors jurisdiction to decide, not all disputes, but disputes in regard to the nature of any tenancy. Such disputes are common between landlords and tenants and may affect the assessment; but the section does not appear to us to apply to a case in which rival tenants claim, not only a tenancy of the same nature, but the same land under the same nature of tenancy. There is no dispute here as to the nature of the plaintiffs' tenancy. They were in 1301 simply non-occupancy raiyats. The learned Vakil for the respondents relies on the cases of Kanto Prashad Hazari v. Asad Ali Khan 5 C.L.R. 452 and Abdul Kadir v. Hamdu Miah 12 C.W.N. 910. The former case, however, was not a dispute between rival raiyats and in the latter, it does not seem to have been in controversy that the suit was one to set aside the Collector's order. The only question was whether it came under Article 14 or Article 45.
14. It appears to us that the Settlement Officer's order was not an award under the Regulations and that the suit is not barred by Article 46.
15. Next it is contended that the suit is barred by Article 14. But the plaintiffs need not have the order set aside, if really their land has been given to another without any warrant of law. As a matter of fact, the order has been set aside and they have gained nothing thereby.
16. Finally, it is argued that the suit is barred by the Schedule to the Tenancy Act. But this contention must fail having regard to the fact that the suit was instituted before the amendment of the Act and that the plaintiffs were not occupancy raiyats in 1301.
17. Accordingly, with the exception of Appeal No. 2148 which has abated, the appeals are allowed, the decisions of the District Judge are set aside and the cases will go back to him for a decision of the other issues of the case. Costs will abide the result. We allow no costs in Appeal No. 2148.