The burden of proof lies on the Government to demonstrate that lands are beyond the limits of permanently settled estates before applying regulations that extinguish proprietary rights. Long-term possession and revenue authority decisions can establish that lands are part of a settled estate.

Judgement

Appeal from a decree of the High Court (March 29, 1904) affirming a decree of the Subordinate Judge of Sylhet (April 15, 1899).

The plaintiff was one Mahomed Ali Amjad Khan, who died after the decree of the First Court, the appellants being his legal representatives. The respondent Secretary of State was one of the defendants.

In the exercise of powers vested in him by Regulation III. of 1891, which is sufficiently set out in their Lordships judgment, the Chief Commissioner of Assam on July 25, 1891, notified that the Regulation would be put into force in certain areas from October 1 following. Among the tracts of land to which the notification related was the area in suit, which admittedly contained jhum lands. These lands are described in the judgment of the High Court as " lands in wild and jungly tracts on the Sylhet frontier, which were never brought under settlement by the Revenue authorities, but were left waste to be occupied by migratory cultivators who, after a time, abandoned them, and moved on to other similar lands with greater advantages. The proprietors of neighbouring estates seem to have taken rents, or forest dues, from these persons. Any rights so acquired, either by the cultivators, or by those who took rents or dues from them, were of a very indefinite and transitory character."

The plaintiff sued on April 13, 1897, for a declaration that the notification issued by the Chief Commissioner of Assam does not affect the plaintiffs right and possession of the lands in suit.

The relief was prayed for on two grounds—(1.) that the lands in suit (known locally as the lands of Puber Pahar, or Eastern Hill) were part and parcel of the permanently settled estates named in schedules 4 and 5 attached to the plaint, and not lands in which the plaintiff and his co-sharers had merely the jhum rights; (2.) that, by adverse possession for over sixty years, plaintiff had acquired a title against the Government. The plaint also stated that, under the permanent settlement, the settlement holders of those estates were given absolute proprietary right to the land described in schedule 1, and that the highest Revenue authority had decided that those lands appertained to the permanently settled estates.

In his written statement the Secretary of State for India in Council denied (1.) that the lands in suit were included in the taluqs, or estates, named by the plaintiff; and (2.) that the plaintiff had acquired any title to the land by adverse possession. With reference to the other allegations made in the plaint, it was stated, in answer, that all that the highest Revenue authority admitted was that the plaintiff had jhum rights attached to the lands in dispute, but it was contended that, even if it were admitted that the plaintiff and his co-sharers really held such jhum rights, they had been extinguished by Regulation III. of 1891.

The Subordinate Judge dismissed the suit. With regard to Regulation III. of 1891 he observed that it was evident from the preamble that the Regulation did not apply to lands within the limits of the permanently settled estates, but applied to lands beyond the limits of those estates, upon which lands the proprietors of those estates carried on jhum or shifting cultivation, the income derived from such cultivation having formed part of the estimated assets, which formed the basis for assessment of revenue of the permanently settled estates. The first question, therefore, for determination was whether the land in dispute was within, or was beyond, the limits of the permanently settled estates.

After an examination of the documentary evidence in the record, he came to the conclusion that the land in dispute was beyond the limits of the permanently settled estates, and he therefore found that that land came within the operation of Regulation III. of 1891. He also held that, as the plaintiff had failed to shew that the disputed land was included in the permanently settled estates, it necessarily fo