PROVINCE OF BENGAL Vs. MRITUNJOY ROY CHOUDHURY

JUDGEMENT

(1.) This appeal is by the defendant, the Province of Bengal, from the judgment and decree of the District Judge of Rangpur dated 2 March, 1938, by which the judgment and decree of the Munsif, Second Court, Rangpur, dated 31 July 1937 has been affirmed. The subject-matter of the suit is 199.23 acres of land in Mouzas Ganeshpore and Pirabad held without payment of revenue from at least 1805. No attempt had been made on the part of the Government to assess it with revenue before 1935. The plaintiff-respondent is the owner of a permanently settled estate, being touzi No. 161 of the Rangpur Collectorate. The lands in suit lie within the geographical limits of that estate. When settlement proceeding under Chapter 10, Ben. Ten. Act, was in progress resumption proceedings were started by the Settlement Officer which culminated in a resolution passed by the Board of Revenue on 31 July 1935 declaring that the said lands were liable to be assessed with revenue. In pursuance of the said resolution a sum of Rs. 381 was assessed as revenue. Shortly after, the plaintiff brought this suit for a declaration that the lands were not liable to be assessed with revenue and the assessment made is illegal. The grounds on which he wished to sustain his suit are two in number: (i) that he and his predecessors had been holding the lands as revenue free property from before 12th August 1765, the date of the accession of the East India Company to the Dewani, under a revenue free grant from Raja Mansingh. The Government has accordingly no right to challenge his revenue free title in view of the provisions of Section 2 of Regn. 19 of 1793; (ii) that the right of the Government to assess it with revenue was barred by time.

(2.) Both the Courts below have negatived the plaintiff's claim based on the first ground, but the second contention of the plaintiff has been given effect to by both the Courts below. The lower Appellate Court found that the plaintiff's predecessors were in possession at least from 1805 without payment of revenue. The first ground taken by the plaintiff cannot be reagitated by him before us, as findings of fact conclude him. The only point therefore which we have to consider is whether the Government's claim is barred by the lapse of time. The first Regulation of importance is Regn. 19 of 1793, the Regulation dealing with non-Badshahi grants. We need not consider the provision, though they are of a similar nature, of Regn. 37 of 1793, which relates to Badshahi grants, as the plaintiff does not claim revenue free title from a Badshahi grant. The provisions of Eegn. 19 classify lakherajes into three principal classes according to point of time. (1) If the lakheraj grant is proved to have been made before 12 August 1765, the date of the Dewani to the East India Company, the grant is not to be questioned. (2) If the grant had been made after 12 August 1765, and before 1 December 1790, the grant is to be deemed invalid unless made or confirmed by the Government or by a duly authorized officer of the Government. (3) If the grant had been made after 1 December 1790 without the authority of the Governor-General in Council it is to be void and of no effect. There is a fundamental distinction between invalid grants falling in the second class and those falling within the third class. The grantees falling within the second class of invalid lakherajes are not to be dispossessed. Their proprietary rights are recognized; they are not to be dispossessed but their lands are to be assessed with revenue only, ( Secs.4 and 5) according to the principles laid down in the Regulation. The grantees falling within the third class of invalid grants are to be dispossessed and their lands annexed to the permanently settled estate within the ambit of which they lie.

(3.) Invalid grants falling within the second class are sub-divided into two divisions in reference to area. If the area be 100 bighas or more the right to assess would remain in the Government and the Government is to have the assessed revenue. If the area be less than 100 bighas the zamindar within the ambit of whose estate they lie is given the right to assess and to have the benefit of the revenue assessed without being required to pay more to the Government than what he has to pay as revenue on account of his permanently settled estate, These provisions accordingly give the Government right to assess land which form the subject of an invalid lakheraj grant created within the period of 12 August 1765 and 1 December 1790, provided that the lands-included in one single grant is 100 bighas or more in area. With regard to invalid grants of the third class, whatever the area thereof be, all the rights conferred by Section 10 of the Regulation belong to the proprietor of the permanently settled estate within the ambit of which the lands lie and no right is retained by the Government, unless the Government was in khas possession, i.e., unless the lands lay not within the ambit of an estate permanently settled to a proprietor but within an area held in khas by the Government. The zamindar is given-the right to summarily dispossess the grantee. He may at his option however allow the grantee to retain possession and assess him with rent. In view of these provisions, the Government would have no right to assess the lands in suit except on the assumption that they were included in an invalid revenue free grant created after 12th August 1765 and before 1 December 1790. As the point was not raised in this form we would, in deciding the question of limitation, proceed on the hypothesis that the lands in suit were included in an invalid revenue free grant which the Government) could in law resume. The finding of the learned District Judge is that the grantee was in possession from 1805 at least and that finding is supported by the fact that the person in possession made a return to the Collector in 1212 B.S. (1805) (Ex. 2) showing there that he was in possession under a revenue free grant made for maintenance (khangi petbhata - maintenance for family).