Ramanandhan Sahay vs Jaigovind Pandey

Jwala Prasad, J.—The plaintiffs are the appellants. The plaintiff No. 1 and the predecessors of the plaintiffs, Nos. 2 to 11, purchased at a revenue sale the ijmali khata of a mahal named Raipatti, tauzi No. 3142, on the 6tb January, 1883. Khata No. 1 of that tauzi was purchased at a revenue sale by one Balbhadra Sahay on the 10th January, 1901. He sold a part of it on the 21st December, 1901, to plaintiffs 12 to 14 and the remainder on the 2nd February, 1902, to plaintiff No. 15.

Thus the plaintiffs are now the owners of the entire mahal Raipatti bearing tauzi No. 3142. The serial number of this mahal was 82 in the register of 1249. It was subsequently altered to No. 114 and then to No. 2007 {tauzi) and now it bears tauzi No. 3142.

Close to this, there is another mahal of the same name Raipatti, the serial number whereof was 84 in the register of 1249; which was altered to No. 116 and then to No. 2009 (tauzi) and now it bears tauzi No. 31.43. This was purchased in 1899 at a revenue sale by defendants 2 to 3 in the farzi name of their servant Gopal Das from whom they obtained a ladavi deed (Exhibit 49) and then sold it to defendant No. 1, Jaigovind Pandey, brother of defendant No. 6, who is the servant and gomashta. of defendants 2 to 3. Defendants 1 and 6-are members of a joint family and are joint in mess and business. Defendants 4 and 5-are the thikedars of the said mahal. The two mahals Raipatti bearing tauzi Nos. 3142 and 3143 are situated in pargana Kasmar, district Saran.

The dispute in this case concerns a block of land shown and designated as mauza "Babhangawan" in the thak and the revenue survey maps of 1843-44, bearing No. 53, covering an area of 771 acres, 2 roods, 37 poles, defined by boundaries noted therein. Contiguous to the south-east of "Babhangawan" are the lands shown in the thak and the revenue maps of 1843-44V in No. 179 under the name of mauza "Kedarpura Babhangawan," with an area of 267 acres 1 rood, 3 poles.

The plaintiffs'' case is that the aforesaid two thak and survey maps of 1843-44 represent respectively the lands of mauzas "Babhangawan" and "Kedarpnra-Babbangawan" which are distinct and separate from each other : the former appertains to the plaintiffs'' mahal Raipatti bearing tauzi No. 3142, and the latter to mahal Raipatti tauzi No. 3143 belonging to the defendants; that the lands in dispute known as "Babhangawan" were settled with the predecessor-in-interest of the plaintiffs as a part and parcel of their mahal Raipatti bearing: tauzi No. 3142 and have been all along in their possession until recently when after their reappearance from the river Ganges the defendants illegally began to interfere with their possession which led to criminal cases between the parties in 190809 (vide Exhibits 76, 80 and 82) in which the defendants were worsted but ultimately they caused a proceeding u/s 145 of the Code of Criminal Procedure to be instituted in the Court of the Magistrate with the result that the Magistrate in a summary way by his order of the 23rd December, 1913, declared the possession of the defendants over 1047 bighas of land of mauza "Babhangawan" as appertaining to the defendants'' tauzi, No. 3143, and emboldened by this order the defendants dispossessed the plaintiffs of the remaining lands of mauza "Babhangawan" on the 10th January, 1914; that the defendants have no title or possession over the lands in suit and had never possession of the same before the order of the Criminal Court, nor does the land in dispute called mauza "Babhangawan" appertain to the defendants'' tauzi No. 3143. On these allegations the plaintiffs commenced their action by filing a plaint on the 21st December, 1914, in the Court of the Subordinate Judge of Saran, for recovery of possession of the disputed lands with mesne profits, after a declaration of their tide thereto.

The defendants, other than the proprietors of tauzi No. 3143 were impleaded in the cause because they were parties in the proceeding u/s 145 of the Criminal Procedure Code. Defendant No. 224 is said to be the farzidar of plaintiff No. 1 and his name stands in the Land Registration office. The defendanc No. 1, as proprietor of tauzi No. 3143, is the chief contending defendant. His defence in short is that the disputed lands appertain to mahal Raipatti bearing tauzi No. 3143 belonging to the defendants; that it never appertained to plaintiffs'' tauzi No. 3142; that the defendants are in possession of the lands in dispute as appertaining to their tauzi as recognized and declared by the proceeding u/s 145 and that the plaintiffs have neither any title nor possession of the same, and that the suit is, therefore, liable to be dismissed. It is not necessary at this stage to give the detailed allegations of the defendants upon which the defendants base their claim. They will have to be referred to in the course of the judgment hereafter.

The defendants took other pleas which will appear from the issues framed by the Court below, which are as follows:

Issue Nos. 1 and 5 relating to the framing and maintainability of the suit, the jurisdiction of the Court to try, the valuation and cause of action, were found in favour of the plaintiffs and do not arise in this appeal. The remaining issues are as follows:

Have the plaintiffs any title to disputed land?

Whether the disputed property, namely, the lands measuring 771 acres, 2 roods, 37 poles, named as village "Babhangawan", appertain to plaintiffs'' Mahal Baipatti, tauzi No. 3142, or Mahal Raipatti tauzi No. 31431?

Are the plaintiffs entitled to get possession of the land in suit?

To what relief are the plaintiffs entitled?

The learned Subordinate Judge decided these issues against the plaintiffs, and dismissed their suit, except with respect to 33 bighas 3 kathasAs regards 33 bighas 3 kathas, be held that the plaintiffs had proved their title and were in possession of the same as declared u/s 145 of the Code of Criminal Procedure and the defendants did not dispute the plaintiffs'' title or possession. He directed this to be noted in the decree. The plaintiffs have come to this Court in appeal and submit that the decision of the Court below is wrong and untenable.

The appeal is resisted by the respondent who was contesting defendant in the Court below. Mr. Sultan Ahmed has argued the case on behalf of the appellants, and Mr. Hasan Imam on behalf of the respondents.

The first and foremost question that arises for determination is as to which of the two tauzi Nos. 3142 and 3143 the lands in suit appertain (Issue No. 7). These lands have been depicted in the revenue survey map No. 53 of 1843-44 wherein they have been designated as mauza "Babhangawan."

The plaintiffs'' case is that the entire mauza "Babhangawan" was exclusively settled by Government with Ghinnu Singh, admittedly their predecessor-in-interest, at the time of the Deoennial Settlement of 1197 (1790, A.D.) which subsequently became permanent, and that mauza "Kedarpura ", which is contiguous to it on the south-west and is a distinct and separate village, was settled with Parbhu Singh, admittedly the predecessor-in-interest of the defendants. The defendants, on the other hand, state that "Babhangawan and Kedarpura" are not two separate mauzas but are one and the same though called differently sometimes as "Babhangawan", 3omefcimes as "Kedarpura Babhangawan" and sometimes as "Babhangawan Kedarpura", the lands whereof bearing the kitabi area of 3,488 bighas 15 kathas, along with many other mauzas were, an the Decennial Settlement of 1197, settled with Parbhu Singh and Ghennu Singh in the proportion of two-thirds and one-third respectively, that is, 2,321 bighas odd with Parbhu Singb, and 1,161 bighas with Ghennu Singh. Ghennu Singh was to pay proportionate Government revenue of Rs. 561 odd for the lands of the mauza settled with him and Parbhu Singh was to pay Rs. 1,151 for the laud settled with him, and that in the year 1207, Fasli (1800), with the exception of a few bighas, all the lands of the mauza fell into the river Ganges and on the application of Ghennu Singh an amin was deputed by the Collector to ascertain the quantity of the lands washed away by the Ganges; that the amin reported that out of an area of 2,321 bighas, which was comprised in Parbhu Singh''s portion of the mauza, only 75 bighas 2 kathas were left and of Ghennu Singh''s share, which originally contained 1,161 bighas, only 33 bighas 3 kathas were forthcoming, the remaining lands of both the shares having been washed away; that as a result of this enquiry the revenue payable by Ghennu Singh was reduced with the sanction of the Governor-General in Council to the extent of Rs. 347 odd, thus leaving the reduced jama of Rs. 213 odd for the mauza, but that the revenue payable by Parbhu Singh was not at all reduced and when the lands of the mauza reappeared the defendants took possession of the same and are continuously in possession since then and that the plaintiffs have never been in possession of any land in excess of 33 bighas 3 kathas, which was found in the possession of Ghennu Singh after the diluvion of the lands of the mauza in 1800 when the Decennial Settlement expired and the Permanent Settlement came into operation; that if, as alleged by the plaintiffs, the revenue survey of 1843 has measured the lands in suit 771 acres 2 roods, 37 poles, as situated in mauza "Babhangawan" appertaining to tauzi No. 3142 and 267 acres, 1 rood, 2 poles, as situated in a separate mauza "Babhangawan Kedarpura" or "Kedarpura Babhangawan" the revenue survey measurements and maps are wrong inasmuch as there were no two mauzas nor that any portion of the land separately appertained to the two tauzis and the said measurements and maps are not binding upon the defendants.

The learned Subordinate Judge has held that "Babhangawan" and "Kedarpura" are two distinct and separate mauzas within specified boundaries as alleged by the plaintiffs. In this view he is supported by the overwhelming documentary evidence filed in the case.

[Here his Lordship dealt with the evidence and proceeded as follows:]

Thus it is manifest that from the earliest time, that is, from before the Permanent Settlement up to the present moment the Decennial and the Permanent Settlements, the Government surveys referred to above and the Government records have all along treated them as two distinct mauzas and so also the parties and the public. Therefore it must be held that "Babhangawan" and "Kedarpura" are two distinct mauzas as depicted and defined in the revenue survey maps of 1843-44, though they may have been differently called sometimes as "Babhangawan," sometimes "Babhangawan Kedarpura" and sometimes as "Kedarpura Babhangawan." Such prefixes and affixes are often adopted in order to fully describe and distinguish the mauzas concerned.

The next question for determination is wish whom and how these lands were settled.

[His Lordship then dealt with the history of the settlement of the two mauzas and. continued:]

The aforesaid history of the settlement of the two mauzas shows that although the area was not specified in the kabuliats of Parbhu Singh and Ghennu Singh (Exhibits L-l and L-2) at the time of the Decennial Settlement, the land of the two mauzas amounting to 3,488 bighas was settled with them in the proportion of two-thirds and one-third and with proportionate Government revenue, that is, the area settled with Parbhu Singh was 2,321 bighas at an annual revenue of Rs. 1,151 and that settled with Ghennu Singh 1,161 bighas at an annual revenue of Rs. 561, and that the lands of the two mauzas fell in both the mahals called Baipatti settled separately with Parbhu Singh and Ghennu Singh. This has been the case of both the parties ever since the Decennial and the Permanent Settlements of the mahals with them. In the written statement this is practically admitted by the defendants and Mr. Hasan Imam has eonoeded that whether the villages were one or two and whether they were called Babhangawan or Kedarpura or Babhangawan Kedarpura, the lands were settled with Parbhu Singh and Ghennu Singh in the aforesaid proportion. The Government records and reports also support this view. Ghennu Singh''s son Banwari Singh himself admitted that he had only one-third share in the two mauzas. The plaintiffs'' claim, therefore, that the entire mauza "Babhangawan" covering the lands in dispute 771 acres odd as shown in the revenue survey map was exclusively settled with Ghennu Singh is not borne out by the evidence in the case.

In support of their claim the plaintiffs rely principally upon the Mahalwar and the Mauzawqr Registers read with the revenue survey map No. 53 of mauza "Babhangawan." In order to appreciate this argument it is necessary to find out as to how the plaintiffs seek to connect mauza "Babhangawan" as shown in the revenue survey map with their tauzi No. 3142 and mauza "Kedarpura" with the defendants'' tauzi No. 3143.

These mahals were for the first time numbered in the Settlement Register prepared in 1841-43 (Exhibits 13 and T-l). Number 82 was allotted to mahal Baipatti settled with Ghennu Singh and No. 84 to mahal Baipatti settled with Parbhu Singh. The entry in the register mentions the mauza described therein as "Babhangawan-Kedarpura" as having been allotted to both the proprietors, Parbhu Singh and Ghennu Singh. Out of the kitabi area of the mauza, 2,320 bighas, 5 kathas, 10 dhurs was allotted to Parbhu Singh with the annual jama of Ra. 1,150 as originally settled with him. The jama of the entire mahal was increased by Rs. 51-9-5 for the additional lands of Kasimpur settled with him in 1205. 1,161 bighas, 8 kathas were allotted to Ghennu Singh in the same mauzas "Babhangawan-Kedarpura." The jama originally fixed was reduced to Rs. 1,901-12-0 in the year 1208 Fasli on account of diluvion. This register was prepared just before the revenue survey of 1843-44 took place. In serial No. 21 of Mauzawar Registers (Exhibits 16 and 43-B) in mahal No. 114, mauza "Babhangawan-Kedarpura" is shown as having an area of 771 acres, 2 roods, 37 poles, as found by survey measurement and shown in revenue survey map No. 53. In serial No. 22 of the Mauzawar Registers in mahal No. 116, mauza "Babhangawan-Kedarpura" is shown as having an area of 267 acres, 1 rood, 3 poles, as found by survey measurement and shown in revenue survey map No. 179 (by mistake put down 79). These registers do not show the names of the proprietors. The Mutation Registers (Exhibits Z-157 and 157-A) from 1845-46 to 1849-50, however, show the names of the proprietors Ghennu Singh and his co-sharers recorded with respect to mahal Raipatti No. 3195 and those of the heirs of Parbhu Singh in mahal Raipatti No. 3197; so also the general registers 64-A and 64-D prepared under seotions 6 7 and 14 and 15, respectively, of Act VII of 1876. These numbers are shown in the Mahalwar registers (Exhibits 14 and 17) as corresponding to Nos. 114 and 116 respectively. No. 3195-114 as being the number of mahal Raipatti belonging to Ghennu Singh and No. 3197-116 as being the number of the mahal Raipatti belonging to Parbhu Singh. The present tauzi numbers of the mahals are also given in this register, namely, No. 3142 corresponding to No. 3195-114 as the number of the mahal belonging to Ghennu Singh; tauzi No. 3143 corresponding to 3196 and 116 as the number of the mahal belonging to Parbhu Singh. "Babhangawan-Kedarpura" with an area of 771 acres, 2 roods, 37 poles has been shown in this register as appertaining to tauzi No. 3142 and "Babhangawan-Kedarpura", having an area of 267 acres, 1 rood, 3 poles as appertaining to mahal No. 3143 of Parbhu Singh. Thus the plaintiffs say that they have connected the area in dispute with mauza "Babhangawan" as shown in revenue survey map No. 53 and that this appertains to their mahal bearing tauzi No. 3142, and that the defendants have got only an area of 267 acres, 1 road, 3 poles as shown in the revenue survey map No. 179 and designated as "Kedarpura" appertaining to their mahal No. 3143. The plaintiffs'' case is, therefore, based upon these registers, particularly the Mahalwar Register. Some of these registers, such as, the mutation registers, are no doubt public documents prepared by the Collector in his official capacity in order to contain information with respect to the revenue-paying lender and the names of the proprietors thereof and the changes and transfers that took place from time to time With respect to them. They used to be first prepared under the provisions of Regulation 48 of 1793 (vide Section 16) and are now kept under Act VII of 1876. The entries in these registers are receivable in evidence quantum vale at for what they are worth. They are, however, not conclusive and may be shown to be inaccurate. Apart from the reports of Lachman Singh Kanungo and the Collector in connection with the abatement of revenue on account of the diluvion of the lands of the two mauzas and the kefiyat of the diluviated lands of 1844 (Ex. ), the quinauennial register of 1700-1838 and of 1834-1838 [Exhibits U and 2-140) show that the lands in both the mauzas "Babhaugawan-Kedarpura" were settled with Parbhu Singh and Ghannu Singh, the predecessors-in-interest of the plaintiffs and the defendants, with specified areas and revenue and do not show that all the lands of Babhangawan were exclusively settled with Ghennu Singh. These quinquennial registers were prepared under the directions of the Board of Revenue under Regulation 48 of 1793. They are called quinquennial as they were originally required to be prepared every five years. The words every five years "which occurred in Section 2 of the Regulation have been repealed, but the name of the register still continues. The register is a public document and admissible in evidence as such Oodoy Monee Debee v. Bishonath Dutt (1867) 7 W.R. 14. The entries in these registers support the case of the defendants that both the mauzas were settled with the proprietors of the two tauzis bearing Nos. 3142 and 3143. The settlement registers, which are also public documents prepared in 1841-42 (Exhibits 13 and T-l) which give the mauzas, their areas and the jama settled with Ghennu Singh and Parbhu Singh, show that the lands of both the mauzas "Babhangawan-Kedarpura" were settled with both of them. These are the registers previous to the revenue survey of 1843-44. The registers prepared subsequent to the revenue survey and relied upon by the plaintiffs also show both the muazas "Babhangawan Kedarpura" as appertaining to the mahals of both the proprietors, Ghennu Singh and Parbhu Singh. So far they are in agreement; but how the area of 771 acres, 2 roods, 37 poles, which corresponds only with one mauza called Babhangawan in the revenue survey map, came to be recorded as appertaining to the mahal of Ghennu Singh and 267 acres, 1 rood, 3 poles, which corresponds only with one mauza called "Kedarpura-Babhangawan" in the revenue survey map, to the mahal of Parbhu Singh, is a mystery. The Mauzawar Registers do not contain the names of the proprietors but only the serial numbers of the mauzas in the register and the numbers of the two mahals. The Mahalwar and the Mutation Registers no doubt contain the names of the proprietors. The subsequent treatment by the revenue authorities as well as the parties, as already shown, indicates the state of affairs that existed prior to the revenue survey continued Therefore if there is any conflict between the registers prepared after the revenue survey and those prepared before that, the latter must be accepted. The plaintiffs base their title upon the original settlement of the mahal Babhangawan, exclusively with them as shown in the revenue survey. The onus to prove that the entire mauza was settled with them is upon the plaintiffs. The thak and the revenue survey do not help them. In the first place they do not show the names of the proprietors of mauza Babhangawan and Kedarpura. They simply demarcate the boundaries of the two mauzas and ascertain the areas comprised therein. Even if they had shown the plaintiffs to be the proprietors of these mauzas they would have exceeded their scope and would not have been taken as evidence of title. In the case of Maiyudid Biswas v. Ishan Chandra Das Sircar (1910) Cri.L.J. 293 it was held that, an entry in a thak bast map is not sufficient to enable a court of fact to hold that the disputed lands were really included in an estate at the time of the Permanent Settlement. They may be good evidence as to what the boundary of a particular plot was at the time of the Permanent Settlement, per Sir Comer Petheram, C.J., in the case of Syama Sunderi Dassya v. Jogobundhu Sootar (1888) 16 Cal. 186 though at one time even this was doubted Mohesh Chunder Sen v. Juggul Chunder Sen (1879) 5 Cal. 212 The true scope of a thak and a survey map was defined in the case of Syam Lal Sahu v. Luchaman Chowdhry (1888) 15 Cal. 353. In the case of Nobo Coomar Dass v. Govinda Chunder Roy (1881) 9 C.L.R. 305 Field, J., pointed out that no general Rule can be laid down as to the weight to be assigned to a survey map as a piece of evidence. That learned Judge, whose knowledge of the revenue laws and regulations is beyond any question, says that ft revenue survey in this province was pot made under any authority of any enactment of legislature. It was a purely executive act. At the same time the authority of the revenue survey has been recognized by the Legislature and is referred to in Act IX of 1847. The survey operations were required to be conducted with due publicity and co-operation of the parties interested in the measurement and their signatures and objections were obtained in writing. A survey map is, therefore, good evidence of possession according to the boundary demarcated thereon and which may be taken to have been admitted by those concerned and in each case it muss he decided upon the circumstances whether it raises a reasonable presumption of title. This was the view expressed in the earliest case of Kali Chandra Sen v. Adoo Sheikh (1886) 9 W.R. 602 and the view has now been confirmed by their Lordships of the Judicial Committee in Jagadindra Nath v. Secretary of State (1902) 30 Cal. 291 where Lord Bindslay held that the revenue survey maps are not conclusive and may be shown wrong, but in the absence of evidence to the contrary they may properly be judicially received as correct when made. The accuracy of the revenue survey map is not disputed in the present case. It is not disputed that these maps have correctly demarcated the boundaries of "Babhangawan" and "Kedarpura." They are further supported by the maps prepared subsequently at the Gangetic Diara Survey of 1863-64 and the typographical survey of 1898-99, and the boundaries found during the revenue survey may be presumed to have continued. It may also be clearly presumed that these were the boundaries which existed at the time of the Permanent Settlement but they do not go further and do not show that the lands measured and included in mauza "Babhangawan" were settled, at the time of the Permanent Settlement, with Ghennu Singh or Parbhu Singh. This has to be proved by evidence aliundi. The onus of proving that the lands shown in the survey map as "Babhangawan" were included in the Permanent Settlement of 1793, is, as observed by Lord Bindslay in the aforesaid case, upon the plaintiffs who affirm that such was the case. The plaintiffs have failed to prove that the entire'' mauza "Babhangawan" was included in the Permanent Settlement made with them. The thirty years'' register shows, as observed above, that they were two separate and distinct mauzas, having jointly the hitabi area of 3,488 bighas odd. The Decennial Settlement kabuliat of the plaintiffs (Exhibit L-2) does not show that the entire mauza "Babhangawan" was settled with Ghennu Singh, the plaintiffs'' predecessor-in-interest. It shows that "Kedarpura Babhangawan," and not solely "Babhangawan" was settled with Ghennu Singh. Parbhu Singh''s kabuliat (Exhibit LI) does not show that "Kedarpura" alone was settled with him, but "Babhangawan-Kedarpura." In the light of the evidence in the case these entries in the aforesaid kabuliats "Kedarpura-Babhangawan" and "Babhangawan-Kedarpura" mean that lands is both the mauzas were settled with Ghennu Singh and Parbhu Singh. The evidence in the case already discussed point to the fact, as stated in the earliest register which sets forth the state of affairs from 1861-1890, that the lands of the two mauzas were settled in separate shares and those shares were two-thirds to Parbhu Singh and one-third to. Ghennu Singh. Ghennu Singh had, as admitted by himself in the jamabandi filed by him and the petition filed by his son, Banwari Singh, only one-third of the entire area, namely, 1,161 bighas were settled with him. Parbhu Singh, on the other hand, had about 2,321 bighas odd, that is, about two-thirds-of toe entire area. The jama payable by Ghennu Singh and Parbhu Singh Rs. 56-1-2 and Rs. 1,151, respectively, also point to nearly the same proportion. The revenue survey has found the area of "Babhangawan" to be 771 acres odd and of "Kedarpura" to be 267 acres odd.

If "Babhangawan" was settled entirely with Ghennu Singh and "Kedarpura" with Parbhu Singh, as alleged by the plaintiffs, Ghennu Singh would then have an area of 771 acres odd and Parbhu Singh an area of 267 bighas odd as shown in the revenue survey maps of "Babhangawan" "Kedarpura" respectively; in other words the share of Ghennu Singh will be two-thirds and Parbhu Singh one-third, the area of the two mauzas taken together, that is, in inverse order of the proportion of the area which was originally settled with them.

On behalf of the plaintiffs it has been urged that the kitabi or khiyali area mentioned in the earliest register (Exhibit Z-75) wag a myth and that the settlement was not according to the area but was according to the produce of the land. In other words the contention is that although the jamas settled with Ghennu Singh and Parbhu Singh as stated above are nearly in the proportion of one-tbird and two-thirds, the area in the settlement of Ghennu Singh must have been in the inverse proportion according to the produce of the land allotted to him. It is true that originally during the Muhammadan period the settlement was made according to the produce of the land and Sher Shah (1540-1545, A.D.) fixed the share of the State at one-fourth of the produce. As he did not live long he could not carry out his plans into general effect and whatever he left undone was, however, effectually performed under the auspices of the Emperor Akbar (latter half of the 16th century) by Raja Todarmal. The first step taken towards an accurate assessment was to make the measurement of the land and in order to do this one uniform standard was substituted for the various measurements used throughout the country which was 3,600 square yards for a bigha, the English Statute acre being 4,840 square yards. The register prepared in the time of Hoshiar Jang showed the area which was ascertained by measurement during the time of Raja Todarmal and this area came to be known as the kitabi area, that is, literally the area recorded in the register and was accepted for the settlement of revenue when the East India Company took the grant of the Provinces of Bengal, Bihar and Orissa. The areas of the mauzas were found in the old Muhammadan registers called Daftar Pur ana. They were collected and complied under the orders and superintendence of Mr. Dain in 1817 [vide Exhibit 99, paragraph 3.) The settlements made during the time of the East India Company were based upon the kitabi area found in the old Muhammadan records and such settlements were made originally for short periods, in order to ascertain the actual produce of the lands and the burden, of revenue that they were capable of bearing. After full investigation the information was set forth in the thirty years'' register which gives an account of the settlement previous to and after the assumption of the administration by the East India Company. On the basis of the information entered in the said register, the Decennial Settlement was made which was intended to be made permanent upon receipt of the orders of the Court of Directors. Therefore although the produce of the lands was the basis of the settlement the area or the rakba could not be lost sight of in order to make the settlement equitable, both for the Government and the zamindars. The area, therefore, recorded in the said register as khiyali or kitabi area cannot be said to be wholly without any basis. In that very register while showing the kitabi area, the area then called the "present area" which was slightly in modification of the kitabi area, was also mentioned. Therefore the area was taken into consideration at the time of the settlement and was always so treated is dealing with settlement of the two mauzas, and the proportion of two-thirds and one-third was maintained throughout by the Government officers and was accepted by the parties themselves. Therefore the plaintiffs have failed to show that they are entitled to the entire area measured and shown in the revenue survey as appertaining to mauza Babhangawan. They have failed to show that the entire mauza was settled with them at the time of the Decennial or the Permanent Settlement. The learned Subordinate Judge is, therefore, right in holding that only one-third of the areas of the two mauzas, "Babhangawan" and "Kedarpura", was settled with the plaintiffs. He has, therefore, very rightly dismissed his claim as to the entire mauza "Babhangawan" which covers the land in dispute. The plaintiffs, however, have proved that at the time of the Decennial Settlement one-third of the area of mauza "Babhangawan" was settled with them.

Mr. Hasan Imam, however, contends that after the Decennial Settlement the lands of the two mauzas "Babhangawan" and "Kedarpura", settled with Parbhu Singh and Ghennu Singh, began to diluviate and by the time the ten years expired all the lands of the two mauzas had diluviated, leaving only 33 bighas, 3 hathas out of the land settled with Ghennu Singh and 75 bighas, 2 hathasonb of the lands settled with Parbhu Singh out of water, and Ghennu Singh took remission of revenue hut Parbhu Singh did not, and when the lands began to reappear Parbhu Singh and his heirs took possession of the''- same and in the year 1819, when all the lands of both the villages reappeared, they took possession of the entire lands. Ghennu Singh and his heirs were never in possession of the lands after reappearance and their various attempts to take settlements of the lands from Government failed. Therefore, says Mr. Hasan Imam, Ghennu Singh and his heirs lost all title to the lands in dispute. He also contends that Ghennu Singh having taken abatement of revenue on account of diluvion the settlement with him at the time of the Permanent Settlement in 1207 was only with respect to 33 bihghas, 3 Kathas, which remained in his possession after diluvion as stated above and the Decennial Settlement of the land in excess of the said area was superseded by the Permanent Settlement. Consequently he argues that the lands in dispute, which are the lands with respect to which the abatement of revenue was allowed to Ghennu Singh, cannot be said to be the land included in the Permanent Settlement of Ghennu Singh. It is true that Ghennu Singh obtained remission of revenue, as stated above, in the year 1207. The jamabandi filed by Ghennu Singh in 1207, for the year 1800-01, shows a decrease of 1,129 bighas, 17 hathas of land settled with him in "Babhangawan" and "Kedarpura" with respect to which he claimed an abatement of revenue of Rs. 519-2-5, the area above water in the said villages being only 33 bighas, 3 hathas. His application for abatement is not filed but is referred to in the report of Latchman Singh, hanungo. Parbhu Singh also applied for abatement of revenue {Exhibit Z-70-71) but no abatement was allowed to him beoause, as reported by Lachman Singh, there appeared sufficient increase of land according to the average jamabandi in the villages in his possession. It also appears from the reports of Laohman Singh hanungo (Exhibits N-2, N-1 and 75) and the note made in the Quinquennial Register of 1790 to 1838 {Exhibit U) that the lands of the taluqa were measured under the orders of the Board of Revenue in 1208 Fasli, in order to prepare an account of the diluviated lands and that the jama of the entire mahal of Ghennu Singh of Rs. 2,405, originally fixed at the Decennial Settlement, was reduced under the orders of the Governor General in Council, dated the 6th March, 1801, to Rs. 1,901. The jama of Rs. 561 odd of mauza "Kedarpura-Babhangawan" was reduced by Rs. 347, from Rs. 561 to Rs. 213. The tirijs jamabandis {Exhibits P and 72), signed by Ghennu Siugh and Parbhu Singh, show the areas of the lands in the two mauzas as detailed above after diluvion, in their respective possession. Lachman Singh, hanungo, reported (Exhibit N-2), dated 1817, that 1,000 bighas of the lands of the two mauzas had reappeared and Kanhaiya Singh and others, heirs of Parbhu Singh, had taken possession of the same and Ghennu Singh wanted to take settlement according to his share of one-third. In 1822 he reported that 2,000 bighas had come out and that they were fit for settlement but that Parbhu Singh had taken possession of the same. Banwari Singh, on the 20th February, 1824, filed a petition to the Board of Revenue which was forwarded to the Collector by his letter (Exhibit M-1), dated 5th March, 1824, stating that he was entitled to settlement of one-third of the aforesaid alluviated lands on payment of the revenue that may be assessed upon them. In reply to the Board''s letter the Collector submitted his report (Exhibit M-2), dated 22nd April, 1824, supporting the statement of Lachman Singh as to the lands having been diluviated and being in possession of Parbhu Singh. He, however, reported that there was delay in his disposing of the matter, inasmuch as it required investigation into it which he was required to do under the orders of the Board of Revenue, dated 8th July, 1822, under Regulation II of 1819 and that if the petitioner was dispossessed by the heirs of Parbhu Singh and wanted immediate redress he could go to the Zila Court but until his investigation was brought to a determination it was not possible for him to afford any redress to the petitioner. There is nothing on the record be show what happened afterwards, whether the petitioner, Banwari Singh, did go to the Civil Court or not. If he did go, what was the result? It is also not known what was the final report of the Collector after the investigation referred to in his letter. The Collector''s letter is, dated 22nd April, 1825, and the tirij of the diluviated lands is dated September 1830 {Exhibits P and 72). Ghennu Singh seems to have repeated his prayer in his: application of the 3rd December, 1830. Mr. Dharikrishan Singh, Deputy Magistrate, in his judgment in the case u/s 145 of the Code of Criminal Procedure {Exhibit Z-99) dealing with this question states:

A document of 1839 has been produced by the second patty (the plaintiffs) from which it appears that under the direction of the Board of Revenue the revenue fixed in 1197 Fasli on Ghennu Singh''s share (Rs. 2,405 odd) was to be restored.

This document has not been produced before us. It, however, appears that Ghennu Singh and his heirs continued to pay the revenue as was assessed in 1208 after the diluvion of the land of the mauza [vide Exhibit 13, Settlement Register of 1841-42], On the other hand the revenue fixed for the lands settled with Parbhu Singh was not reduced and the reason of this is given in the report of Lachman Singh as well as in the Quinquennial Register {Exhibit U). It appears from these documents that between the years 1197 to 1201 Parbhu Singh took into his possession the diluviated lands of mauza Peerbahani Chak and thus he was in possession of lands which did not decrease the jamabandi income of the lands in his possession in spite of the diluvion of the lands of mauza Babhangawan-Kedarpura, and, therefore, the original revenue of his mahal of Rs. 6,953-2-0 was not reduced. In 1205 he took settlement of lands in Kasimpur upon which a jama of Es, 51-9-5 was assessed. Accordingly the Settlement Eegister (Exhibit T-1) 1841-42 shows that the jama of Rs. 7,004-11-5 was fixed in 1205 for the mahal Raipatti, tauzi No. 3143 including Kasimpur. Therefore no additional jama was assessed upon the lands in possession of Parbhu Singh after the diluvion of the lands of Babhangawan and Kedarpura, as reported by Lachman Singh. No additional revenue was paid by Ghennu Singh also. Mr. Hasan Imam says that the additional lands of Babhangawan and Kedarpura of about 2,000 bighas which were taken possession by Parbhu Singh''s heirs were all the lands of those mauzas and consequently Parbhu Singh was in possession of all those lands to the exclusion of Ghennu Singh''s heirs, and the original kitabi area settled with him being 2,321 bighas odd he is not in possession of any land in excess of that area, and, therefore, the lands in question must be deemed to have been included in the settlement originally made with him; but if these lands covered the entire area of Babhangawan and Kedarpura Parbhu Singh''s heirs had no right to exclude Ghennu Singh''s heirs from one-third of the said area, inasmuch as one-third of the entire area was settled with Ghennu Singh at the time of the Decennial Settlement. A reference has been made to a report, dated 1819�20 {Exhibit 75), to show that the 2,000 bighas taken possession of by Parbhu Singh''s heir covered the entire lands of Babhangawan and Kedarpura barring the lands of 75 bighas and odd and 33 bighas odd which had not diluviated before 1201 and continued to be in possession of Parbhu Singh. This argument is based upon the boundaries of 2,000 bighas (in particular the northern boundary) of the diluviated lands given in the said report {Exhibit U) which mentions Akhilpur and mauza Khas as being to the north of the newly-formed lands. The map showing the measurements and situation of the said 2,000 bighas has not been produced. We have looked into the maps carefully of the revenue survey mauza Babhangawan-Kedarpura and the adjoining of mauza villages, particularly the southern villages. The northern boundary given in the kaifiat does not necessarily cover all the lands of Babhangawan and Kedarpura. The area, 2,000 bighas, in question is far in excess of the area Babhangawan and Kedarpura found by the revenue survey measurement. Therefore the aforesaid area must include the land of other mauzas, probably to the south of Kedarpura. If so, it is not possible to say how far these lands, extended to the south. Therefore no certain inference can be drawn from the area or the boundary given in the report {Exhibit U), and it cannot, with certainty, be said the diluviated lands necessarily covered the lands in dispute. Therefore the defendants cannot derive any benefit from the fact that they were m possession of 2,000 bighas of the alluviated lands in 1822. The lands of the mauzat ate subject to the action of the river Ganges. In fact, the whole tract of lands in the neighbourhood has been subject to the fitful course of the river, particularly the lands to the south of Babhangawan and Kedarnura which are described as chaks or chars, terms that apply generally to diara lands. The lands of the villages in question had all diluviated between 1201 to 1207, just after the Decennial Settlement. Some lands began to appear in 1215 and the alluvion continued up to 1229 when large quantities of land reappeared. Nothing is known as to the condition of the lands up to 1840 when the chak and the revenue survey took place. There is, however, a note to the effect that it relates to the newly accreted lands of the said mauzas. The Settlement Register (Exhibit 13) of 1249 Fasli (1841-42) does not show any decrease in the area settled with Ghennu Singh on account of the diluvion though it shows the decrease in the annual jama payable. The area there recorded is 1,161 bighas 8 kathas, that is, nearly one-third of the entire area of the two mauzas.

The question then is whether Ghennu Singh''s taking remission of the revenue amounts to an abandonment of the land by him. No authority exactly applicable to the present case has been cited. There are some cases relating to the effect of submersion of raiyati lands and non-payment of rent but none with respect to the effect of remission of revenue payable to Government. In Hemnath Dutt v. Asghur Sindar (1879) 4 Cal. 894 the view was expressed that the taking of remission of rent after submersion with respect to the diluviated lands constitutes abandonment of the holding and the tenant will not be entitled to the lands on reformation in situ: so also in Saligram Singh v. Puluk Pandey (1907) Cri.L.J. 149. This was a decision based u/s 6 of Act VIII of 1869 which required that a raiyat could retain the right of occupancy only so long as he paid rent. As to what would be the effect of abatement of rent in such circumstances under the Bengal Tenancy Act was left open. The view, however, was not accepted by the Privy Council in Arun Chandra Singh v. Kamini Kumar (1912) 41 Cal. 683 which also was a case under the Bengal Act VIII of 1869. There it was held that the abatement in itself of rent will not entail forfeiture of the tenancy. To the same effect was the decision of the Allahabad High Court in Mazhar Bai v. Ramgat Singh (1896) 18 All. 290. Therefore so far as the tenancy land is concerned the taking of abatement of rent will not necessarily cause an abandonment of the lands. As to the effect of obtaining abatement of revenue there is no clear decision. On the principle enunciated in the above cases and on analogy, the abatement of revenue will not cause forfeiture of the lands. The observation in the case of Lopez v. Madan Mohan Thakur (1870) 14 W.R. 11 may be distinguished on the ground that as a matter of fact in that case there was a continued payment of rent during the submersion and hence there was no forfeiture of the lands. Similarly in Nogendra Chunder Ghose v. Mahomed Esof (1872) 10 B.L.R. 406 it was not thought necessary to decide the question inasmuch as there was no abatement of revenue. These cases, however, lay down that the question depends upon the intention of the parties. If the circumstances indicate that in taking abatement of the revenue there was an intention to abandon the land, then after reappearance the person who took the abatement cannot claim the lands as he had already lost all right thereto. Therefore it is to be judged in the circumstances of this case whether the plaintiffs, by taking abatement of the revenue, intended to abandon it. The applications of Ghennu Singh''s heirs, after re-appearance, claiming one-third share in the lands as a matter of right on payment of revenue clearly indicate that there was no intention to abandon the holding, nor is there anything on the part of the Government to indicate that the land with respect to which the abatement was allowed was treated as abandoned. The Settlement Register (Exhibit 13) already referred to, as well as other registers, continued to record the area originally settled with Ghennu Singh as the area appertaining to the mahal, tauzi No. 3142. When the lands reappeared and the report was made by Lachman Singh, kanungo, in the years 1817-24 the Government did not take steps to settle the lands and assess revenue thereon. About that time Regulation II of 1819, relating to resumption and assessment of revenue on excess lands not already settled, cams into operation; yet no action was taken to resume or assess the additional lands reported by Lachman Singh. No action up till now has been taken by Government under Act IX of 1847, even after the revenue survey of 1843, or after the Diara Survey of 1863-64, to assess the revenue over the lands and to treat them as lands in addition to what was originally settled. It is now a settled law that Act IX of 1847 will only apply to lands which were not covered by the original Decennial and Permanent Settlements [vide Secretary of State v. Fahamidunissa (1889) 17 Cal. 590. If these lands were not included in the Permanent Settlement, as is contended for by Mr. Hasan Imam, certainly Government would have taken action to treat them as additional lands liable to be settled anew. The Government did not do so. Therefore they were treated as lands covered by the original settlement, and hence the remission did not cause any abandonment in itself and consequently did not entail forfeiture of the lands if they were originally included in the settlement of Ghennu Singh. It is, however, said that the Decennial Settlement of 1793 was superseded after ten years by the Permanent Settlement, and soon after the expiry-of the Deoennial Settlement the remission was allowed, and only 33 bighas odd were treated as part of the lands settled with Ghennu Singh in 1801. The Decennial Settlement became ipso facto permanent after the expiry of the term in 1206 (1799). Sections 1 and 2 of Regulation I of 1793 declared that the settlements made in 1790 became permanent by, themselves without any further confirmation. Therefore the Permanent Settlement does not date from the expiry of the Decennial Settlement in 1799, but from the time when the Decennial Settlement was made in 1790. The abatement was, therefore, made after the Permanent Settlement had been concluded. The abatement was, as a matter of fact, allowed in 1208 (1801). Two years after the expiry of the Deoennial Settlement in 1206 (1799) the abatement was allowed under the Regulations with respect to the jama settled by the Permanent Settlement, after measurement under the authority of the Board of Revenue and the Governor General in Council. The Regulations do not say that the abatement will necessarily cause the abandonment of the land. Therefore the abatement in the present case did not entail forfeiture of the lands settled originally with Ghennu Singh, and the plaintiffs'' title to the lands subsisted all along.

The question then arises whether their title was extinguished by loss of the possession over the lauds in suit. The" question of adverse possession has not been raised in this case and from the nature of the lands it is not possible to hold that the defendants were in possession of the identical lands for a continuous period of twelve years at any time when the lands were above water. The evidence of possession offered by the defendants has been disbelieved by the Court below. The demarcation proceedings of 1796�1901 indicate that very small quantity of lands, almost negligable, had come out of water and both parties were assarting their right to the lands in question. If the defendants were trespassers to the extent of one-third of the lands of the village they must prove their possession openly and exclusively and adversely to the knowledge of the plaintiffs with respect to the particular lands in question in order to acquire right by prescription. This has not been attempted to be done in this case nor is this a case of adverse possession. The entire lands of the mauzas were again under water from 1892 to 1909 and small quantities of lands began to appear in 1909, about 100 bighas, with some negligible quantity in 1906 with respect to which the demarcation proceedings took place. But from 1909 the parties are fighting for possession and ultimately there were proceedings u/s 145 of the Criminal Procedure Code. Therefore nobody can be said to be in peaceful possession of the lands so as to acquire title by prescription as against the rightful owner. On the other hand, the plaintiffs have given evidence in the case of exercising their right of possession over such portions of the lands as come out of water. Their evidence, though it may not be sufficient for the purpose of giving them a prescriptive right, is sufficient for the purpose of preserving their right based upon their undoubted title. It is not possible to disbelieve all the evidence of possession given by the plaintiffs in the case, though it may admit of some criticism. There are rent decrees of Courts (Exhibits 25 to 32), the villages'' papers, etc Considering all this evidence it cannot be said that they have not exercised their right of possession which the peculiar nature of the lands in this particular case admit of. They have, therefore, subsisting right and this is sufficient for them to claim recovery of the land in question based on title. The appeal before us was argued entirely upon the footing that the case depends entirely upon title, and not on prescription, and if the plaintiffs proved the title they are entitled to succeed. This is also the view of the Court below. In the very beginning of its judgment, while discussing Issues Nos. 6 and 7, the Court below says that:

The plaintiffs will succeed if they prove title to the lands in dispute and they will fail on their failure to prove the title.

The plaintiffs have, no doubt, failed to prove title to the entire mauza Babbanga-wan but they have succeeded in proving their title to the one-third land of the said mauza.

Therefore the decree of the Court below must be vacated. In lieu thereof a decree should be passed in favour of the plaintiffs declaring their title with respect to one-third of 771. acres, 1 rood, 37 poles shows in the revenue survey as mauza "Babbangawan" barring 33 bighas, 3 kathas with respect to what the Court has already given the plaintiffs a decree. The plaintiffs will be awarded possession over the aforesaid area (771 acre, 2 roods, 37 poles minus 33 bighas, 3 kathas) with mesne profits to be determined by the lower Court from 1320 until delivery of possession or three years from this date, whichever is earlier. There will be no mesne profits with respect to 33 bighas, 3 kathas which have already been declared by the Court below to be in their possession.

As the plaintiffs have succeeded to one-third of their claim, they are entitled to costs in proportion to the claim throughout. The appeal and the suit are accordingly decreed to the extent indicated above.

Ross, J.

His Lordship after discussing the evidence, continued as follows:

The main contention on this evidence by the respondents is that the Permanent Settlement with Ghennu Singh was made in 1801 and was in respect: of only 33 bighas, 3 kathas in Babhangawan Kedarpura. Learned Counsel argues that Emulation I of 1793 did not, of its own force, convert the Decennial into a Permanent Settlement and that the Regulation must be read with Regulation VIII of 1793, one of the provisions of which relates to reduction in assessment. He contends that the settlement with Ghennu Singh, made in 1790, became permanent subject to any alteration made by reduction in the assessment and as the jama was finally settled at a reduced rate in respect of reduced area in 1203 (1801) it must be taken that this was the settlement which was made permanent. But the learned Counsel for the appellants points out that the Decennial Settlement expired in 1206 and that the diluvion took place after this and that the settlement became permanent at least from 1207; whereas, the reduction in the assessment did not take place until 1208, that is after the settlement became permanent. This contention is sound as far as id goes. But, in my opinion, the effect of Regulation I of 1793 was to convert the then current Decennial Settlement into a Permanent Settlement, subject to the possibility of reduction in the assessment. Tue question still remains as to what the effect of the remission of revenue was. The law on the subject is contained in Mazhar Rai v. Ramgat Singh (1896) 18 All. 290 and Arun Chandra Singh v. Kamini Kumar (1912) 41 Cal. 683 which establish this, that mere non-payment of rent or claiming or accepting remission of rent is not in itself proof of abandonment and that until it can be established that the holder of the tenure has abandoned his right to the submerged lands, it remains intact. The question is one of intention to be determined by the circumstances of each case. Now, in the present case, the Government does not claim the land as having been abandoned nor does the defendant claim that the land was abandoned by Ghennu Singh and settled with him. Therefore it is reasonably certain that there is no case of abandonment, arising in the circumstances, of the present suit. Moreover, I consider it fairly clear from the terms of the various reports of Lachman Singh, kanungo, and from the petition of Ban Wari Singh that so far as Ghennu Singh and his immediate Successor were concerned there was no intention to abandon the land but on the contrary an assertion of a continuing title to one-third of the village. Nor did the Government ever treat the land as abandoned. It was never settled with any one else. In Exhibit 13 the area of the plaintiffs'' estate in Babhangawan Kedarpura is still shown as 1,161 bighas although the jama is said to have been settled in 1208 (that is, the reduced jama). And all the Government registers which have been referred to above show that not only one-third but the entirety of Babhangawan was treated as the plaintiffs'' estate. It is clear therefore, on the documents, that the plaintiffs have title to one-third of Babhangawan. But their claim to the whole village cannot succeed. None of the earlier documents supports it; on the contrary they contradict it. They show dearly (a) that Ghennu Singh had land not exclusively in Babhangawan but in Babhangawan and Kedarpura; (b) that Parbhu Singh had land not exclusively in Kedarpura but in Kedarpura and Babhangawan; and (c) that the shares of Ghennu Singh and Parbhu Singh in the lands of both villages were one-third and two-thirds. The present litigation is confined to Babhangawan alone and, therefore, no question of the plaintiffs'' right in Kedarpura arises. But the claim to the whole of Babhangawan rests ultimately on the Mauzawar Registers alone. These are wholly unexplained. They are inconsistent with all the earlier history and evidence in the case and cannot be accepted as good evidence of plaintiffs'' title to the entirety of Babhangawan.

One more argument on behalf of the plaintiffs-appellants remains to be considered. Reference was made to the ease of Khemesh Chandra Bakshit v. Abdul Hamid Sikdar (1916) 43 Cal. 46 and it was contended that no matter to whom the land in suit belonged, the estate defaulted and the plaintiffs purchased it and became the settlement holders from the Government in respect of that property. The plaintiffs, it is argued, are not the successors in interest of the defaulting proprietors but the purchasers of the estate shown in the Collector''s register. A sufficient answer to this argument is to be found in the fact that plaintiffs 1 to 11 purchased the ijmali account subject to encumbrances and that the other plaintiffs purchased khata No. 1, also subject to encumbrances. What passed to the purchaser was not the estate but the right, title and interest of the defaulting proprietors. The plaintiffs'' title, therefore, cannot be improved by the fact that they purchased at revenue sale.

The result is that the appeal will be decreed in part in the terms proposed by my learned brother.