Limitation plea in appeal and re-formation in situ findings led to rejection of revenue assessment.

A new plea that a suit was barred by limitation under Section 24 of Regulation II of 1819 could not be raised for the first time in appeal where it was not pleaded below, depended on disputed factual inquiries, and would likely require a remand; the plea was therefore rejected. On the land-status issue, the available record, including maps and revenue materials, supported the finding that the disputed lands were re-formation in situ of the permanently settled estate. Because the party withholding the best documentary evidence faced an adverse inference and the presumption of continuity was not rebutted, the revenue assessment under the Bengal Alluvion and Diluvion Act, 1847 could not be sustained, and the decree for the plaintiff was affirmed.

---

---

Issues: (i) Whether the appellant could raise for the first time in appeal a plea that the suit was barred by limitation under Section 24 of Regulation II of 1819. (ii) Whether the disputed lands were re-formation in situ of the permanently settled estate and, if so, whether the assessment of revenue under the Bengal Alluvion and Diluvion Act (IX of 1847) was valid.

Issue (i): Whether the appellant could raise for the first time in appeal a plea that the suit was barred by limitation under Section 24 of Regulation II of 1819.

Analysis: The plea was neither taken in the court below nor raised in the memorandum of appeal. It also depended on several factual inquiries, including communication of the Board's decision, applicability of the proviso to Section 24, and applicability of Section 31. A new plea involving disputed facts or mixed questions of fact and law cannot ordinarily be entertained at the appellate stage, especially where it would require a remand and would prejudice the opposite party.

Conclusion: The limitation plea was not allowed to be raised for the first time in appeal and was rejected.

Issue (ii): Whether the disputed lands were re-formation in situ of the permanently settled estate and, if so, whether the assessment of revenue under the Bengal Alluvion and Diluvion Act (IX of 1847) was valid.

Analysis: The available evidence, particularly the Rennell map, the mouzawari register of 1827, and the surrounding revenue materials, supported the conclusion that the lands were dry lands and part of the estate at the relevant time. The Crown withheld the best available documentary evidence, and an adverse inference was therefore justified. The Court applied the presumption of continuity, found no reliable rebuttal of that presumption, and held that the lands were re-formation in situ rather than added lands. On that footing, the revenue assessment could not be sustained.

Conclusion: The lands were held to be re-formation in situ of the plaintiff's estate, and the assessment was invalid.

Final Conclusion: The decree in favour of the plaintiff was affirmed and the appeal failed.

Ratio Decidendi: Where the best evidence on title and assessment is withheld by the party bearing the burden, an adverse inference may be drawn, and proof of the condition of land at known points in time may support a rebuttable presumption of continuity to determine its earlier and later state.

---