SECY OF STATE Vs. BRAJENDRA KISHORE RAI CHOUDHURY

JUDGEMENT

(1.) The suit in which these two appeals arise was brought by the plaintiff, now respondent, for several reliefs, viz: (ka) for declaration of plaintiffs mourashi maliki right by settlement and by right of adverse possession for upwards of 12 years to 1/3 share of the two beels (fisheries) known as Dhola and Baruri beels described more fully in the schedule to the plaint and of the Chapras, Nalas, khals and Kuris attached thereto; (kha) for a declaration that according to the provisions of the Assam Land and Revenue Regulation of 1886 the plaintiff is entitled after the expiry of the period of the settlement of 1902 to get fresh settlement at a proper Jama of lands described in the schedule and of the two said beels from Government; (ga) for a declaration that the Government has no right to separate the lands of the beels, Baruri and Dhola, from the other lands of pattas Nos. 82 and 129 to assess any rent therefor separately in an arbitrary manner or upon the produce; (gha) for a declaration that the rent which has been demanded on behalf of the Government separately, and unjustly and illegally on account of the land in claim in the schedule is ultra vires, null and void; (cha)for a declaration that with respect to land mentioned in the schedule the settlement which had been granted by the Government in favour of defendants 2, 3 and 4 may be declared void, ultra vires and inoperative; (chha chaa) for recovery of possession if during the pendency of the suit the plaintiff be said to have been dispossessed from the two beels or any portion thereof; (ja) for mesne profits from the month of Pous 1330 B.S. to the time of recovery of possession; (jha) for such other reliefs as plaintiffs may be entitled to and (niya) for costs and for these other reliefs embodied in prayer Una, Chha and Ja in respect of which plaintiff's claim has been dismissed and there is no controversy in the present appeal. The principal defendants to the suit were the Secretary of State for India in Council (Defendant 1) who is the appellant in Appeal No. 68 of 1929 and Hanif Mahi, (Defendant 2), and Karimdi Mahi, (Defendant 3), who are appellants in Appeal No. 56 of 1929 and Madan Mahi, defendant 4, who was party respondent to both these appeals but who has died during the pendency of the appeal. The learned Senior Government Pleader asked for an adjournment in order to bring the legal representatives of defendant 4 on the record. But as these two appeals were very old appeals having been filed in 1929, Dr. Sen Gupta appearing for the plaintiff-respondent objected to the adjournment contending that defendant 4 was not a necessary party to these appeals as the settlement in favour of defendant 4 has been cancelled and agreed that the decree against defendant 4 may be discharged.

(2.) The suit was instituted by Brajendra Kishore Rai Choudhury (plaintiff 1), against 47 defendants. Defendants 1 to 4 were described as the principal defendants; amongst the pro forma defendants 5 to 41 were described as the co-sharers defendants 42 to 47 were lessees under plaintiff 1 and have on their own application been transferred to the category of plaintiffs and are now plaintiffs 2 to 7. The case stated in the plaint is that the plaintiff is the owner in possession in maliki right by settlement and by right of adverse possession of 1/3 share of Baruri covered by illam patta bearing No. 117 43874/82 present No. 2 and No. 149 4387/83 present No. 3 and of the two Beels Baruri and Dhola covered by Illam Pottah bearing No. 118 43913/12 present No. I which are fully described in the boundaries in the schedule and that he has been in possession by granting settlement to tenants; that the lands covered by the Beels were waste lands unfit for reclamation and were settled originally under the waste lands rules; that the plaintiff and his predecessors with great care and at enormous cost erected embankments and have turned them into a highly valuable fishery; that the plaintiff has acquired by settlement and by adverse possession for more than 12 years the status of landholder within the meaning of the Assam Land and Revenue Regulation and that he is entitled to get fresh settlement from the Government not only of the two Beels but the entire lands described in the schedule; that after the last cadastral survey the lands in the schedule together with other lands were given by Government in Ilak settlement in 1902 for a period of 20 years and the settlement expired in March 1922; that notwithstanding the expiry of the lease the Government accepted for the years 1922-23 from plaintiff and other proprietors mentioned in the patta the entire rent for the entire lands covered by the patta as the Government was bound under the law to do; that there is a custom as to how the rate of rent per bigha is to be fixed for lands settled when patit lands are re-claimed or when the condition of the same is changed and according to the said custom Ilan lands are given in settlement; that if there is any Beel in any Ilam mahal or if any lands in Ilam mahal are converted into Beel, there is no custom that only the lands appertaining to the said Beel should be separated from Ilam mahal or that the land of the Beels should be given in settlement separately, that the Government has right to grant settlement separately of only the Beel lands or to assess revenue upon the produce of the Beel in an arbitrary manner; that on receipt of a notice signed and issued by the Subdivisional Officer of Moulavi Bazar, an agent of defendant 1 on 17 June 1923, the plaintiff came to know that a proposal was made to settle the Beels Baruri and Dhola with the plaintiff at an annual rental of Rs. 500 for a period of three years from 1329 to 1331 B.S.; that on receipt of the said notice the plaintiff appeared before the Subdivisional Officer of Moulavi Bazar and filed a petition of objection on the allegations that the Government had no right to assess any rent arbitrarily and separately only for the two Beels; that the petition of objection having been dismissed by the Subdivisional Officer of Moulvi Bazar, defendants 2 and 3 and defendant 4 (Madan Mahi) on accepting the rental of Rs. 500 fixed by Government, took settlement of the said two Beels from the Government for a period of three years on 17 September 1923 and on 20 September 1923; that the Government however had already realized from the plaintiff and the other proprietors mentioned in the aforesaid two Pattas Nos. 82 and 129 the entire rental for 1329 B.S., at the previously fixed rate; hence the Government had and has no right to accept the rent of Rs. 500 again for 1329 B.S., on account of the lands of the disputed two Beels of Baruri and Dhola; that the plaintiff having refused to take settlement of the Beels Baruri and Dhola at an annual rental of Rs. 500 in accordance with the improper and unjust proposal of the Government, only the lands appertaining to the said two Beels were settled with defendants 2, 3 and 4 on behalf of defendant 1 upon which the principal defendants in collusion with each other attempted to dispossess the plaintiff and his Ijaradars, the pro forma defendants from the lands of the said two Beels in Pous 1330 B.S. Upon this state of the pleading the plaintiff has asked for the reliefs mentioned in the beginning of the judgment.

(3.) The defence of the Secretary of State falls under several heads: (1) That the suit is barred by the provision of the Assam Land and Revenue Regulation (2) The Civil Court has no jurisdiction to try and decide questions raised in prayers Ga to Cha . (3) Rights are enjoyed subject to the power of legislation vested in the Government. From the beginning of the Land Revenue Settlement it has been an invariable rule of law that at every new settlement there must be a new classification and a new rate of assessment to be determined by the Settlement Officer under the direction of the Government and with its approval. Government is the sole judge of the propriety of the classification and the suitability of the rate, and the amount of revenue settled by the Government officer is final. This has been the law always and this is the law now. It is also not a correct propositions of law that fisheries included in a lease cannot be assessed and offered for the settlement separately from the other lands of the patta. There is nothing in the Assam Land and Revenue Regulation to prevent such splitting up. (4) It is not true that there was no rule for splitting up a patta into two or more pattas. Even in the case of the present pattas, old patta No. 82 was split up into two new pattas, Nos. 2 and 3, and the old patta No. 129 was split up into two new pattas, Nos. 1 and 2, at the last resettlement and the plaintiff and his predecessors accepted settlement of the split up pattas without any objection, protest or murmur. It is not a correct proposition of law that Government has no power to settle the Beels separately or to assess them for their own profits. Government has not assessed them in an arbitrary manner. (5) In course of time the Dhola and Baruri Beels falling within the 4 pattas mentioned have become one fishery and it is inconvenient, nay well nigh impossible, to fish them separately and it was this circumstance which gave the plaintiffs a footing in those portions of the fishery which fell outside the pattasout of old patta No. 82 of which he was one of the settlement holders. Though he was not entitled, as of right, to settlement of those portions of fishery falling within the two pattas out of old patta No. 129, as he was not the settlement-holder thereof and had not acquired the status of the landholder in respect of the same, yet the Settlement Officer determined in the exercise of his own discretion to offer him settlement of those portions also on the strength of his possession as the plaintiff has neither any right nor any possession of the rest of the lands of the two pattas; this necessarily involved the separation of the fishery from these lands.