SECRETARY OF STATE Vs. MIDNAPORE ZAMINDARY CO LTD

JUDGEMENT

(1.) These two appeals are in two suits, title suits Nos. 18 and 19 of 1932 respectively, filed by the Midnapore Zamindary Co. Ltd. In both these suits the Secretary of State for India in Council is the principal defendant. There are also some pro forma defendants to both these suits, but it is not necessary to notice them in these appeals. The first suit comprises some alluvial lands which lie within the ambit of five villages, Mobarakganj, Raja-gola, Nasipore, Khamardiar and Mansurpur alias Durgapore within the jurisdiction of Thana Bhagwangola. They have been formed from the bed of the river Bhairab as depicted in the revenue survey map prepared in the year 1855. In 1929 resumption proceedings were started by the Government, revenue was assessed on them and those lands were formed into a Diara estate No. 3214 of the Murshidabad Collectorate. The Midnapore Zamindary Co. Ltd., called hereafter the company, claims these lands as appertaining to the permanently settled estate no. 523 of the said Collectorate of which it is the patnidar under the Raja of Nashipore, the proprietor of that permanently settled estate. An alternative ease is made in the plaint that the suit lands are portions of 8888 bighas 6 cottas of land which were released from assessment of revenue in 1846 in a resumption proceeding started by the Government in 1836 on the footing that the said area had already been assessed to revenue at the time of the permanent settlement of estate No. 523. The prayers are for a declaration that the creation of Diara estate No. 3214 was ultra vires and for a further declaration that the company is entitled to enjoy the suit lands as part and parcel of its patni taluk.

(2.) The second suit comprises alluvial land within the ambit of mouza Hasanpore in thana Bhagwangola. This piece of land has also been formed at the site of the river Bhairab as shown in the revenue survey map of 1855. In 1926 the Government started resumption proceedings, assessed the same to revenue and created a Diara estate No. 3213 of the Murshidabad Collectorate, The company is proprietor to the extent of six annas share and patnidar to the extent of the remaining ten annas share of the permanently settled estate No. 465 of that Collectorate. It claims the suit lands as part of the said permanently settled estate. There is also, as in the other suit, an alternative case that the suit lands are portions of 700 bighas of land which had been released from assessment of revenue in 1847 in the course of a resumption proceeding started by the Government in 1846. Prayers similar to the prayers made in the other suit were made in this suit. In both the suits the company says that at the time of the Permanent Settlement of these two estates Nos. 523 and 465, there was no river at the site at which it has been shown in the revenue survey maps of 1855, i. e., that the suit lands were dry lands at the date of the Decennial Settlement made permanent in 1793 and were accordingly assessed to revenue then. In suit No. 18 a special case has been made. It is that the whole of perganah Goas which is included in estate No. 523 and within which the suit lands lie, everything within it, "whether land or river-bed or damosh or sand, was assessed to revenue at the Decennial Settlement." The learned Subordinate Judge has upheld this contention. He has further held that the bed of the river as flowing at the time of the revenue survey of the year 1855 was dry land at the time of the Decennial Settlement of estates Nos. 523 and 465, and so the further assessment made in the Diara proceedings was ultra vires. He has, however, held that the alternative case set up by the company was not established, as the suit lands could not be identified with the lands which had formed the subject-matter of the resumption proceedings of 1836 and 1846.

(3.) For the purpose of enabling him to decide the material points in controversy the learned Subordinate Judge appointed a Pleader Commissioner, Mr. Biswa Nath Roy. The said Commissioner has prepared one case map for the two suits. Therein he has relayed a map annexed to the judgment of the settlement officer, Mr. Bijoy Mukherjee (ex. Eo-C 885). We have marked the paper books thus: That map, which will hereafter be named the "congregated map," depicts the river as at the time of Major Rennel's survey (1769-1771) and as at the time of the revenue survey (1855). That congregated map shows that at those two periods the river was flowing at different places. From the congregated map it is quite clear that the place where the river was flowing in 1855 was dry land at the time of Major Rennel's survey. He has also relaid in his case map the chitta of the resumption proceedings of 1836 and 1846.