SECY OF STATE Vs. KRISHNA PROSAD ROY CHAUDHURI

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiffs, now appellants, for a declaration that the Government have no right to resume any portion of certain Ilam lands covered by pottas Nos. 3 and 9 in suit, that is to say, potta No. 24512/9 / 24505/3 present No. 1 or to settle the same after resumption with any other third person and for a further declaration that the plaintiffs have the status of "landholder" in respect of the lands of the pottas in suit within the meaning of Assam Land Revenue Regulation, Regulation 1 of 1886, as well as for confirmation of possession of the two plaintiffs of the lands of-the patta in suit and for a perpetual injunction restraining the Secy. of State from disturbing the possession of the plaintiffs. The plaintiffs also asked in the suit for a declaration that they have exclusive right to take settlement from the Government at a proper jama of all the land of the Ilam Pottas in suit and they prayed for other reliefs also. The plaintiffs also asked for restoration of possession of such portion of the lands of the pottas in suit from which they might have been dispossessed in the meantime by the action of the Government and they prayed for mesne profits. The suit was resisted by the Secretary of State who filed a written statement in which they raised several defences to which reference will be made hereafter. The Additional Subordinate Judge of Sylhet decreed the suit of the plaintiffs in a modified form. He held that the plaintiffs have the interest of land-holders within the meaning of Section 8 of the Regulation, in respect of all lands of the Ilam potta No. 1 in suit, as described in the Ilam potta of the English year 1902, but the Subordinate Judge came to the conclusion that the defendant is entitled to make khas and to select for making khas the remainder after setting apart 1/5 out of the culturable waste land within the said property. He declared that the plaintiffs are entitled to get re-settlement of such portion of the mehal as is not included in the aforesaid resumption. The Subordinate Judge held further that the plaintiffs be confirmed in their possession of that portion of the land which the defendant is entitled to resume so long as the same is not resumed as well as of the remaining lands of the mehal. The plaintiffs have preferred an appeal against that portion of the decree which refuses to give the plaintiffs a declaration in terms of their prayer No. 1 in which they asked for a declaration that the Government have no right to resume any portion of the lands of the pottas in question. This appeal has been numbered as Appeal from Original Decree No 283 of 1931 with which we will deal first. It may be mentioned that the Secretary of State has also preferred an appeal to this Court and that is against that portion of the decree of the Subordinate Judge which affirms the plaintiff's possession in that portion of the land which the Secretary of State is held to have been entitled to resume so long as the same is not resumed. That appeal has been numbered as Appeal from Original Decree No. 277 of 1931. It has been conceded by Dr. Mukherjee who appears for the Secretary of State that if the appeal of the plaintiffs, that is Appeal from Original Decree No. 283 of 1931, succeeds it would follow that the appeal of the Secretary of State, namely, Appeal from Original Decree No. 277 of 1931, must necessarily fail.

(2.) Appeal No. 283 of 1931.--We now proceed to deal with the appeal of the plaintiffs, namely, Appeal from Original Decree No. 283 of 1931. The facts which give rise to the contentions in this appeal are not many and are not substantially in dispute. The question really turns on the effect of certain provisions of the Assam Land Revenue Regulation as to the status of the plaintiffs as well as on the effect of the potta No. 1 which has been marked as Ex. Y in the suit and was executed on behalf of the Secretary of State in the year 1902. See p. 54 of Vol. No. 1, part 2 of the paper-book of Appeal from Original Decree No. 277 of 1931 which for the sake of convenience we shall hereafter refer to as Vol. "D." The plaintiffs case is this: that there was a settlement of two estates which will be described for the sake of brevity as estates Nos. 3 and 9 with the plaintiffs in 1888. Estate No.. 3 was granted for a period of eight years commencing from 1298 to 1302 B.S., on 23 July 1888. See p. 144, Vol. D of the paper book. This document has been marked as Ex. M. With regard to the Estate No. 9 there was a kabuliat, Ex. N (1), which evidenced an Ilam settlement. It appears that under both these documents the land which was settled was .the land which belonged to the Government and was in possession of the Government and which was not in the possession of the plaintiffs; and this was the land over which none of the plaintiffs had the right of the proprietor, land-holder or settlement holder under the Assam Regulation. This was apparently the land to which provisions of Section 12 of the Assam Regulation of 1886 apply. This may be regarded as the first stage in the relationship of landlord and tenant between the plaintiffs and the Secretary of State with reference to this tenancy. It appears that before the terms of the lease expired a re-settlement of the lands in the two estates were made for ten years, that is from the year 1894 to 1904 or 1300 to 1310 B.S. The two leases in respect of the two estates, estate No. 3 and estate No. 9, have been marked as Exs. E E and E E-1 respectively and printed at pp. 64 and 67 respectively in Vol. D of the paper book. These leases were for a term of ten years and as soon as these leases were executed the plaintiffs acquired according to their contention the status of land-holders within the moaning of Section 8, Clause (b) of the Regulation. It may be stated here that the Secretary of State acceded to this position claimed by the plaintiffs in the Court below. The learned Senior Government Pleader has, however, raised a new contention and he argues that the plaintiffs did not acquire the status of land- holders because in the first stage of the settlement they entered into these lands as lessees to whom provisions of Section 12 apply. We shall consider the soundness or otherwise of this contention after we have finished the narrative of the facts of this case. This is the second stage in the relationship of landlord and tenant as between the Government on the one hand and the plaintiffs on the other.

(3.) We come now to the third stage and we will have to refer in chronological sequence to some of the events which led to the execution of potta No. 1 in 1902 which covered a period of 20 years and was to expire on 31 March 1922. (The judgment then describes the documentary evidence and the defences and then proceeds). After considering the oral and documentary evidence the Subordinate Judge has come to the conclusion that the pottas of 1894 conferred on the plaintiffs the status of landlord with a permanent heritable and transferable right for use and occupation of the lands comprising the two estates. The real issue which the Subordinate Judge had to determine in the matter of controversy before us is issue 8. That issue is to the following effect: Is the order of the Governor in Council passed on 1 January 1926 for enforcing Clause 7 of Potta resuming the waste and allow lands valid and binding against the plaintiffs and can the plaintiffs claim re-settlement of the lands resumed by order of Government?