MIDNAPORE ZAMINDARY CO LTD Vs. SECRETARY OF STATE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff, the Midnapore Zamindary Co. Ltd., herein referred to as the Company, in a suit for declaration of certain rights in property. It has been dismissed by the learned Subordinate Judge of Nadia by his judgment and decree dated 19 December 1934. To follow the points raised in the appeal a short history of the Estate called Char Marichardiar bearing touzi No. 1905 of the Rajshahi Collectorate, now touzi No. 3520 of the Nadia Collectorate (herein referred to as the chur), within which the lands in suit are situate and the precise nature of the Company's claim have to be noticed. In or about 1840 a vast island chur was formed in the bed of the river Padma and became fit for occupation. Robert Watson & Co. (to be called the Watsons), who were in possession of some asli lands in the neighbourhood came upon this chur in 1841 and began to possess it. Adjoining riparian proprietors laid claim to different portions of this chur either on the ground of reformation in situ or on the ground of accretion to their permanently settled estates, but the Watsons successfully resisted their claims to a great extent, all the suits except one or two being dismissed. The Watsons fought all these suits on the defence that no portion of the said chur was part of any permanently settled estate or accretions thereto but was the Government's property, being originally an island chur found in the bed of a large navigable river. From 1841 to 1869 however they did not pay anything to the Government on account of their occupation.

(2.) In the sixties of the last century, a Diara survey of this chur was made, and in 1869 the Watsons took a settlement from the Government for a term of three years stipulating to pay a fixed amount to the latter. The document evidencing this settlement has not been produced and we do not precisely know anything about the nature and terms of this settlement beyond the fact that it was for a term of three years. The Watsons held over from year to year till March 1883. In 1882 the ryots of the said chur rose in revolt against them and petitioned the Government for realizing rent from them directly. The Government acceded to their prayer and resolved to hold the estate under khas management. The evidence establishes the fact that direct possession was taken by the Government from April 1883. This fact is not only mentioned in a series of settlement reports beginning from [1888 Ex. 13 (a) B 88] but is admitted in a petition of the Company (Ex. 28-B-166). A survey of the said chur as also a jamabandi (settlement of rent of the cultivating ryots) was begun immediately after the Government took the estate under khas management.

(3.) It appears from the record that the Watsons were in khas possession of some portion of the chur, and cultivated the same themselves, they being indigo planters. The rest was in the possession of cultivating tenants. When the ryots of the said chur petitioned the Government for khas management the Watsons took steps to counteract that move. They submitted a memorial to the local Government on 26 December 1882 in which they prefer-red two claims. They claimed proprietary rights to a good portion of chur and occupancy rights in the remainder, this last mentioned claim being founded upon their khas cultivation. Their claim of proprietor-ship was founded upon adverse possession, their case being, Part 1 has been marked by me as A, Part 2, Vol. 1, as B, Part 2, Vol. 2 as C, Part 2 Vol. 3 as D, Part 2 Vol. 4 as E, and Part 2 Vol. 5 as F, that a portion of the chur was re-formation in situ of Bobanund Diara, an estate which belonged to the Chowdhuries, whom they had kept out of possession for the statutory period. The Government in its resolution dated 6 April 1883 held that their claim to proprietary right was unfounded and acting upon the opinion of the Advocate- General, who had in the meantime been consulted, rejected their claim to jotedari rights (occupancy rights). The Lieutenant-Governor however did not wish that their possession over such portions of the chur as were in their khas cultivation should be disturbed, but they were to be asked to pay rent to the Government at the rates current in the locality (Ex. 1-B-75). In this resolution there are two passages, one at p. 79 1. 26-32 and the other at p. 80 1. 40-46, which indicate that the Government considered itself to have proprietary title in the chur and that the Watsons were its tenants up to March 1883, they being rent collectors, farmers of rent or ijardars. This fact and the facts noticed in the next paragraph have an important bearing on the first question liaised in the appeal, namely on the construction of the document Ex. 17 (d) (B-62), the document by which the Watsons engaged with the Government for a term of 20 years from 1887.