1922 (8) TMI 7 - HC - Indian Laws

High Court affirms Subordinate Judge's decree on Bengal Alluvion Act, Permanent Settlement, and navigable river lands.

Secretary Of State For India Versus Upendra Narain Roy And Ors.

The High Court affirmed the Subordinate Judge's decree, ruling in favor of the plaintiff on various issues including the legality of revenue assessment ... - Issues Involved:1. Legality of the revenue assessment under the Bengal Alluvion and Diluvion Act (IX of 1847).2. Whether the disputed lands appertain to estate No. 105 of the Pabna Collectorate.3. Whether the lands were assessed with revenue at the time of the Permanent Settlement.4. Whether the lands formed part of a large navigable river at the time of the Permanent Settlement.5. Bar of limitation under Section 24 of Regulation II of 1819.Issue-wise Detailed Analysis:1. Legality of the Revenue Assessment:The plaintiff contended that the disputed lands were part of his Zemindari right in Touzi No. 105 and not 'added' lands under Act IX of 1847, but re-formations in situ. The Subordinate Judge, after an elaborate enquiry, ruled in favor of the plaintiff for a considerable portion of the disputed lands, declaring them as re-formation in situ of his permanently settled villages. The assessment by the Revenue Authorities was deemed ultra vires, as the lands were not 'added' lands within the meaning of the Statute.2. Appertaining to Estate No. 105 of the Pabna Collectorate:The substantial question was whether the lands in suit belonged to estate No. 105 and were assessed with revenue at the time of the Permanent Settlement. The Subordinate Judge found in favor of the plaintiff, concluding that the lands were part of his permanently settled villages and not part of the river bed. The Crown failed to produce relevant papers from the Decennial and Permanent Settlements, leading to an adverse inference against the Crown's defense.3. Assessment with Revenue at the Time of the Permanent Settlement:The Subordinate Judge relied on historical documents, including the mouzawari register of 1827, which showed the area and boundaries of the villages as dry land. The absence of Decennial and Permanent Settlement papers from the Crown's side led to the presumption that the lands were dry and included in the estate at the time of the Permanent Settlement. The Subordinate Judge's findings were based on the principle that proof of the existence of a fact of a continuous nature at a particular time gives rise to a presumption of its existence at a subsequent or prior time, unless rebutted by evidence.4. Lands Forming Part of a Large Navigable River:The Crown argued that the lands formed the bed of the river Ganges at the time of the Permanent Settlement. However, the Subordinate Judge found that historical evidence, including Rennell's map of 1764 and the mouzawari register of 1827, indicated that the lands were dry and part of the estate. The presumption of continuity from 1764 to 1827 was not rebutted by the Crown, leading to the conclusion that the lands were not part of the river bed at the time of the Permanent Settlement.5. Bar of Limitation under Section 24 of Regulation II of 1819:An additional point raised during the argument was that the suit should be dismissed as barred by limitation under Section 24 of Regulation II of 1819. However, this point was not raised in the lower court or in the memorandum of appeal. The Court held that a new point involving questions of fact could not be raised for the first time in appeal, especially when it would prolong litigation. The Court refused to grant leave under Order XLI, Rule 2, and did not examine the reasoning of the cited cases on this point.Conclusion:The High Court affirmed the Subordinate Judge's decree, holding that the lands specified were re-formation in situ of the plaintiff's estate and that the assessment by the Revenue Authorities was ultra vires. The appeal was dismissed with costs, and the hearing fee was assessed at 15 gold mohurs.