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Judgment
The Plaintiffs, in this case, seek to recover possession of certain chur land on the ground that it is a reformation on the site of a portion of their permanently-settled estate, pergunnah Amira-bad, taraf Salimpur. The history of the property, forming the subject-matter of the present suit, goes back to the year 1827. Pergunnah Amirabad, taraf Salimpur was recorded in the name of Tarini Sankar Mazumdar, and appertained formerly to the towzi of the Rajshahye Collectorate, but latterly to that of zillah Faridpur. Another pergunnah, named Berhampur, taraf Durgapur, was recorded in two names, viz., that of Tarini Sankar Mazumdar and Joy Sankar Mazumdar, formerly appertaining to the Rajshahye District, stands at present on the Register of the Pabna Collectorate. These two properties are now owned and possessed by the several Plaintiffs in the suit, whom, for the sake of brevity and convenience, we shall in this judgment call the Mazumdars. To the south of these pergunnahs lie the Government estates of Dhunchi, Gachiadaha and Sonakandar. In the year 1826 the river Pudma, which apparently lay between the Mazumdars'' estate and the Government mehals, moved towards the north, and threw up a considerable tract of land in respect of which the Government had instituted resumption proceedings. In 1827, on an application by the Mazumdars, out of this track, 9, 407 bighas were released in their favour on the ground that lands so released were reformations in situ on portions of their permanently-settled estate, taraf Salimpur. This taraf consisted of several mouzahs, among which the name of mouzah Mowkuri must be noted; for the Plaintiffs'' case turns upon the question whether the lands in suit are reformations on this site of mouzah Mowkuri or not.
In the year 1838 a question arose whether the lands thrown up by the river which amounted to no less than 38, 000 bighas appertained to the District of Rajshahye, or to that of Pabna; and in order to ascertain that fact on the 4th of April 1839 an Ameen of the name of Ram Rutton Roy was appointed to make a measurement of both the asli and chur lands, and " to ascertain on the locality the position of each of the possessors of churs " which then formed the subject-matter of investigation. Ram Rutton Roy made a measurement, and the chittas relating to his work have been admitted in evidence and placed on the record. He also appears to have prepared a map (which is more of a rough sketch than a scientific delineation) of the locality. In the course of these proceedings the Mazumdars appear to have submitted to the Deputy Collector in charge of the enquiry a petition stating that 9, 407 bighas out of these lands had already been released to them as the reformed lands of their various mouzahs (among them Mowkuri), and praying that no action should be taken with respect to them. Consequent upon the enquiry made by Ram Rutton Roy and the petition of the Mazumdars, Mr. Broadhurst, the Deputy Collector of Pabna, on the 6th of March 1843, ordered that the cases, instituted in Pabna, should be struck off, and that save and except as regards the lands of chur Salimpur claimed by the Plaintiffs'' predecessors and released to them as aforesaid, should be reinstituted in the Rajshahye District. The churs, regarding which the cases were to be roinstituted, are mentioned in page 53 of the paper-book in this appeal.
In the year 1839, when Ram Rutton made his measurement and prepared the rough sketch of the locality, the river Pudma appears to have lain directly towards the north of the Government khas mchals Dhunchi, Gachiadaha, and Sonakandar. About the year 1845 it receded towards the north, forming a chur to which Government laid claim under the provisions of Regulation II of 1819. Notwithstanding certain objections raised by the Mazumdars, it was held on the 17th of April 1846 that the Government was entitled to resume the island chur, or as it is called in these proceedings the Jazira chur on the ground that it was surrounded by water on all sides, and consequently was the property of the Government. The area of that portion of the chur, which was held to appertain to Dhunchi, was 904 bighas, and of the portions appertaining to Gachiadaha and Sonakandar amounted to 204 bighas, and 387 bighas respectively. On this occasion an Ameen of the name of Ishwar Chandra Das was deputed to measure the said Jazira chur and lay down the boundaries thereof; and he accordingly measured the lands and prepared a chitta, the result shewing the areas given above. The northern boundary of the chur lands appertaining to Dhunchi was described by Ishwar Chandra Das as Kasimnagar. Kasimnagar at that time belonged to a lady, named Rani Krisnomoni Dasi, and there were simultaneous proceedings between her and the Mazumdars in respect of those very lands lying to the north of the Jazira lands claimed by the Government by right of accretion to their mehal to the south. Under an order of the Criminal Court the claim set up by Government was dismissed, and the Mazumdars were directed to remain in possession until the Rani obtained a decision from the Civil Court that the lands claimed by her appertained to Kasimnagar (p. 54). It appears that a suit was, in fact, subsequently brought by the Rani or her putnidar against the Mazumdars, and was decided by the Civil Court in favour of the latter. The result of that decision therefore was that the lands, which lay to the north of the Jazira chur of 1845-1846, were declared to be the property of the Mazumdars, and which they designated as mouzah Mowkuri.
In the year 1849 the Plaintiffs took a settlement of the Jazira chur from the Government. At that time, owing to the silting up of the Sota which lay towards the south, the area of the portion appertaining to Dhunchi, namely, 904 bighas 10 cottahs had increased to 1, 092 bighas odd. The settlement was for 11 years, viz., from 1849 to 1858. Towards the close of this period the river receded further northwards and threw up a largo quantity of land over 4, 000 bighas; and the Government laid claim to the whole of that tract on the ground of its being an accretion to the Jazira chur of 1845-1846. Shama Sankar Mazumdar who, at that time, seems to have been in charge of the management of the property belonging to the Plaintiffs, objected to the Government claim; but his objection was overruled on the 11th of March 1859. The Collector''s proceeding of that date sots out the facts, states the objections preferred by Shama Sankar Mazumdar, and goes on to hold that those objections were not valid. Thereupon tire Mazumdars obtained an ijara of the lands held to belong to Government as appertaining to the khas mohal cliuv and lying to the south of the river as it lay in 1859. This settlement was also for 11 years ending with the year 1869.
In this connection it ought to be mentioned that these estates were thacked in the year 1857, and the regular survey took place in 1858-59, when the objection of Shama Sankar Mazumdar having been overruled, all the lauds included in the settlement made with the Mazumdars were surveyed as part of the Government chur. Within this period, and before the expiration of the lease aforesaid, the river moved back towards the south. It docs not appear when, or how, the movement took place; but it is clear that in the year 1869 when the Mazumdar took a fresh settlement of the lauds lying to the south of the river, it had receded considerably towards its old position. A. fresh settlement was then made by the Government with the Mazumdars in respect of the land lying to the south of the river; and this state of things continued up to the year 1882. Whenever the river receded towards the south, the area under settlement decreased proportionately, and the lands, which were thrown up on the north, were taken possession of by the Plaintiffs as belonging to their permanently-settled estate. In 1882 the river appears to have reached again its southernmost limit; and at that time the Plaintiff''s either did not wish to take, or did not obtain from Government, a settlement of the chur lands which it claimed as belonging to its khas inchal. Between 1882 and 1884, which corresponds with the Bengali year 1291, the river moved up again towards the north and threw up a considerable quantity of land on the southern side; and the Plaintiff''s case is that they took possession of the same through their tenants, remained in possesion for a year or so, and were then ousted by Government. They accordingly bring this suit to recover possession of all the lands lying to the south of the river and to the north of the old Jazira chur resumed in 1845 or 1846 by the Government, on the ground that they are reformations in situ of their mouza Mowkuri appertaining to their permanently-settled estate of taraf Salinrpur. They claim to have been in possession of these lands all along by virtue of the various settlements they took from Government. They say that in 1859 and for a considerable time after the condition of their family was such that they could not fully apprehend their rights; and that, therefore, the fact that they took settlements from Government should not debar them from putting forward their present claim. That, at least, is what we understand from the allegations contained in para. 3 of the plaint. They further allege that during the whole time they were holding these lands under settlement from Government'', they were paying revenue in respect of them as part of their permanently-settled estate, and that therefore in equity the Government is not entitled to say they have lost their rights thereto.
The Government in its answer denies that the lands which form the subject-matter of the present suit are reformations on the site of any portion of the permanently-settled estate of the Plaintiffs and alleges inter alia that the Plaintiff''s having taken settlements are estopped from denying its title; and that their claim is barred by limitation.
The Subordinate Judge, upon the state of facts to which we have briefly referred, framed a number of issues, which, he says, indicate sufficiently the matters in dispute between the parties. Upon, these issues the principal questions to be determined in the case are the following :--First, whether the Plaintiffs were estopped, as alleged, from disputing the Defendant''s title ? Secondly, whether, as a matter of fact, the Plaintiff''s had established that the lands in suit formed any portion of their permanently-settled estate ? Thirdly, whether if they did form part of their permanently-settled estate they had lost their title by adverse possession? Fourthly, whether the relative position of the parties precluded the Defendant, the Government, from raising the question of adverse possession 1 Fifthly, whether the possession held by the Plaintiff''s under the settlements formed a bar to the creation of an adverse title on the part of Government. The fifth question is partially involved in the fourth.
The conclusion of the Subordinate Judge, who discussed all these questions together, are sufficiently expressed in the two following passages of his judgment. He says :--(page 208 of the paper-book)
AM more than 12 years have elapsed since the thack and survey, and the settlement Rubakaries, Kabuliats and Maps show that Government has been in possession of such lands for more than that period, and as the Plaintiffs have failed to show that they have been in possession of any portion of the disputed land falling within the thack and survey ambits within 1.2 years of the date of suit, 1 am of opinion that the Plaintiff''s'' claim, so far as it relates to the lauds lying within the thack and survey lines of the khas mehul, chur Dhunchi, Sonakandar and Gachiadaha is barred by limitation. It is contended by the Plaintiffs'' vakil that though the ijara settlements might have included certain lands of the zemindaries, yet as rent was assessed only of a small quantity lying towards the south, the same cannot affect the Plaintiffs'' right. But this argument seems not sound for the Kabuliats and settlement proceedings show that the rent assessed was a gross rental for all the lauds included within the ijara, settlement.
And further on (at page 209) he adds:
There is nothing to show that the disputed land was included within the Plaintiffs'' zemindaries Nos. 898 and 148 that the same forms a reformation on the old site of land appertaining to such estates.
The Subordinate Judge takes the thack and survey maps as showing the title of the Defendant to these lands; and he holds that save and except as regards a very small portion amounting to 12 bighas or thereabouts, which did not fall within the thack measurement of 1858-1859, the Plaintiffs'' suit should be dismissed.
Before proceeding further it appears to us necessary to dispose of the following questions, namely, when did these lands, in respect of which the present suit is brought, come into existence? The Plaintiff allege that they reformed 10 or 11 years before the date of the suit, whilst the allegation on behalf of the Government is that they reformed and were taken possession of on its behalf 13 or 14 years ago. The object of these two conflicting statements is obvious. If the lands reformed 13 or 14 years ago and were taken possession of by the Defendant, the Plaintiffs'' suit must fail on the ground of limitation; and it is, we think, for that reason that a considerable body of evidence has been brought forward on both sides to establish the two propositions for which the parties respectively contended.
The Subordinate Judge has expressed no conclusive opinion on this point. He has expressed a doubt about the truth of the statements made by the Plaintiffs'' witnesses that they took possession of the lands 11 or 12 years ago, and that Government dispossessed them after a year. But to our minds, whether the Plaintiffs'' case be true or not regarding the taking of possession upon the reformation of the lands, the real -question to determine is--When did the lands actually come into existence ?
Upon a general review of the evidence we are of opinion that the case made by the Plaintiffs is true, that the lands, as a matter of fact, came into existence within 10 years from the date of the suit.
[Here their Lordships discussed the evidence on this point.]
That being so, we come to the question whether the Plaintiffs have succeeded in shewing in this case that the lands in suit form any portion of their permanently-settled estate.
[Here their Lordships discussed the evidence on this question.]
That being so, it seems to us that the Plaintiffs have sufficiently shown in this case that the land lying to the north of Ishwar Chandra Das'' line is a part of the tract of 9, 407 bighas released to them in 1827 as forming part of their permanently-settled estate.
Assuming this conclusion to be correct, the next question that arises is, whether the Plaintiffs have lost their right by anything which has happened in the interval. The Defendants'' contention is that in respect of the lands lying towards the south of the southern bank of the river, as it existed in 1859, the Plaintiffs have lost their title by adverse possession. The ground upon which adverse possession is based is of a two-fold character: First, the Government states that it was in possession of these lands from the time it took possession of them, and gave settlement thereof to the Plaintiffs by virtue of its proprietary right in exclusion of, and adversely to, the rights of the Plaintiffs as proprietors thereof; and secondly, it says that the Plaintiff''s, having been let into possession by Government, are not entitled to set up their proprietary right as against the Defendant. It is said that the tract of land now in dispute is divisible into two parts. As regards the portion lying between the river bank of 1859 and the northern bank of the river in 1869, the Defendant was in possession for some time out of the period of 10 years during which the settlement extended, and that whilst it remained under water Defendant''s pos session, although that of trespassers, continued in the land and ripened adversely against the Plaintiffs.
As regards the lands to the south of the river of 1869, it is urged that Government was in possession for over 16 years, namely, from 1859 to 1874-75, when it again became a derelict by the action of the river.
It appears to us that no question of estoppel arises in this case. The Plaintiffs did not, by any conduct on their part, induce the Defendant to alter its legal position so as to create an estoppel, and although the Subordinate Judge seems to have thought that the Plaintiff''s were estopped by their conduct from disputing the title of the Defendant, the question has not been argued in this Court. The senior Government pleader has practically conceded that there is no estoppel against them. Nor does it appear to us that the thak and survey maps of 1857 and 1859 in any way preclude the Plaintiff''s from establishing their rights to the land in suit, unless they are otherwise barred. It has been held in a series of cases that, unless it can be proved that the person against whom a thak or survey is attempted to be used expressly consented to the delineation, or admitted the correctness of such maps, they have no binding effect. Of course, if the Plaintiffs, or their predecessors in title, had expressly assented to the lands being included in the survey of the Defendant''s property, their admission might be evidence against them. But nothing has been shown in this case to warrant us in holding that Shama Sankar Mazumdar, or any other person acting for the Plaintiffs, admitted or accepted the accuracy of those maps. It is, no doubt, true that the case made on behalf of the Plaintiff''s that they wore not aware of the claim put forward by the Government in 1859, or that the settlement was taken by them in ignorance of their legal rights or under a mistake, is not borne out upon the evidence. It is clear that Shama Sankar Mazumdar did raise an objection to the inclusion of the lands other than the resumed Jazira chur within the settlement of 1859. That objection of his was overruled, and the Defendant contends that that award (if it might be so called) became final after the lapse of 3 years from the date thereof. We do not think, that clause 6 of sec. I of Act XIV of 1859, or Article 46 of the present Limitation Act, applies to a fiseal proceeding of the character represented by Exhibit No. 9 and Exhibit No. 10 of the year 1859. And it has been already decided in a number of cases that clause 6 applies only to judicial awards and not to a determination by the Revenue Courts of a purely executive character (see the cases of Madho Singh v. Jehangar 2 Agra 229, Hurree Mohun Ghosal v. The Government 2 N.-W. V., H. C. K. 226, Sukhai v. Daryai I. L. R. 1 All, 374. So far as the lands which, lay towards the north of the southern river bank of 1869 are concerned, the Government never held possession of them for more than 12 years. The lands were admittedly submerged during the term of the settlement. We do not know when they were submerged. It was all along admitted by Government expressly as well as by conduct that all the lands which lay towards the north or the river belonged to the Plaintiffs. The Government never claimed any right to the river bed, and if, as we have found, the lands which lay to the north of Ishwar Chandra Dass line of 1845 appertain to the estate of the Plaintiffs, the river in 1869 flowed over the Plaintiffs'' property, and consequently the Defendant cannot be said to have acquired any ad-verse title to the lands; and we think the Plaintiffs are undoubtedly entitled to a decree in respect thereof, viz., in respect of the lands which lie to the north of the southern river bank of 1869. As regards the lands which lie to the south of that line, the question is one of some difficulty. The Defendant (the) Government) unquestionably was in pos-session of those lands from the year 1859 to the year 1874-75, and if it acquired an adverse title in respect thereof, that title could not be lost, unless it was out of possession of the same for 60 years. Therefore, even if the Plaintiffs did get possession of these lands for a while after the reformation in 1884, it would not have the effect of restoring their title if it was already lost.
The question therefore is, whether the Government had acquired an adverse title to these lands. It cannot be denied that it purported to hold them adversely to the Mazumdar; and the ijara it gave to them was on the distinct assertion of its right as proprietor thereof. It all along asserted and maintained its proprietary right adversely to that of the Plaintiffs, and it does not appear to us that merely holding possession as ijaradars the Plaintiffs are entitled to contend that the statute did not run against them in favour of the Defendant. It would be not only anomalous, but in the highest degree dangerous, to allow persons let into possession of a particular property by another claiming it to be his own to con-tend after the expiration of his tenancy, that the person alleging himself to be the owner cannot acquire an adverse title against him as well as others by efflux of time. For otherwise the result would be that no person would be able to claim the benefit of the statute, however continuous and long his possession might be, against another to whom he has let the property, because the latter would be able to say that as against him the statute could not run. Of course, if the tenant claims an independent title to the property, he is not estopped during the continuance of his tenancy from asserting it as against the person to whom ho has attorned for the time being, or by whom get he has been let into possession. But that is not the case here; for it was long after not the expiration of the tenancy that the Plaintiffs came to recover possession of those properties upon their title, and claimed that the suit was not barred on account of their previous possession under settlements obtained from the Defendant. No relief is sought in this case on the ground of mistake, and as we have already pointed there is no reason to suppose that there was any mistake in fact or in law, or that the manager of the Plaintiffs was ignorant of his rights in 1859. We think, therefore, that unless there is any force in the argument put forward by the learned counsel for the Appellants that by virtue of the peculiar relationship existing between the Government and the proprietor of any permanently-settled estate, so long as the Government continues to receive the full revenue for that estate, it is precluded from claiming title by adverse possession in respect of any portion thereof, the contention of the Defendant must prevail in respect of the lands, lying to the south of the southern river bank of the year 1869.
Mr. Hill contends that inasmuch as the Government continued to receive the full revenue for the entire estate settled with the Plaintiffs, and the latter at no time obtained an abatement in respect of any portion of the estate taken away from them, it is inequitable and unfair to allow the Government to set up a title by adverse possession regarding the lands in dispute. The question raised by learned counsel is one of considerable importance. But although his argument is not without force, as at present advised, we are not prepared to give effect to it. In the case of Kally Churn Sahoo v. The Secretary of State I. L. R. 6 Cal. 725 the Plaintiffs had as here all along paid the Government revenue originally assessed on their estate, but no question was raised on that basis to avoid the application of the statute of Limitation. In that case Garth, Chief Justice, said as follows :
The Plaintiffs are clearly entitled to any part of the property in question which belonged to their mouzah and which cannot be distinctly proved by the Defendant by legal evidence to have been taken possession of by the Government at least twelve years before suit." * * * * " If the Plaintiff''s establish their right to recover the land in question, or any part of it, they will be entitled to costs from the Defendants proportionate to the quantity of land recorded in all the Courts, including the High Court.
If the Plaintiffs can prove that the land in question, or any substantial part of it, formed part of their mouzah, and they are defeated upon the plea of limitation only, each party will pay his own costs in this Court and in the lower Appellate Court; because in that case it will be clear that the Government have been wrongfully appropriating land, which belongs, properly speaking, to the Plaintiffs, and for which the Plaintiffs have been paying revenue to them up to the present time. This would undoubtedly be a great injustice to the Plaintiffs, and the attention of the proper authorities might, with good reason, be invited to the subject." There is nothing in either of the ''Regulations (to which the permanently-settled estates of Bengal owe their origin) to indicate that the Government intended to guarantee to the proprietors the absolute preservation of their estates. The Government of this country had always possessed the right of periodically altering the revenue assessment. By the Regulations referred to, the British Government declared that as regards the estates that come within the scope of the permanent-settlement it withdrew its sovereign right to vary the assessments. Beyond that, in our opinion, they do not go; they do not certainly constitute a contractual relationship between the Government and the owners of permanently-settled estates, or any such relationship as would debar Government from claiming and exercising against those owners the rights of an ordinary proprietor. It reserves to itself by virtue of its sovereign rights certain revenues in respect of those estates. It also possesses properties in its own right as a private proprietor. In the enjoyment of such properties it has given itself greater facilities by legislative enactments than is possessed by other proprietors, but in relation to these latter its legal position and its rights do not appear to be more restricted than theirs. We think, therefore, that as regards the lands lying to the south of the southern bank of the river in 1869 the Government acquired a title by adverse possession. We accordingly discharge the decree and order of the Subordinate Judge, and in lieu thereof direct that a decree be entered in favour of the Plaintiffs in respect of the disputed lands lying to the north of the southern bank of the river in 1869, and that their claim as to the rest be dismissed. As Government has succeeded in defeating the claim of the Plaintiffs on the ground of limitation, applying the dicta of Garth, C. J., we think, under the circumstances of this case, each party ought to bear their own costs in both Courts.