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1923 Supreme(SC) 1
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BUCKMASTER, LORD PHILLIMORE, SIR JOHN EDGE, SIR LAWRENCE JENKINS, AND LORD SALVESEN.
NARESH NARAYAN ROY - Appellant
Versus
SECRETARY OF STATE FOR INDIA IN COUNCIL - Respondents
On Appeal from the High Court at Calcutta.
Decided On : January 23, 1923.
Solicitors for appellant: W. W. Box & Co.
Solicitor for first respondent: Solicitor, India Office.
In disputes over permanently settled estates affected by navigable rivers, courts should favor justifying title over rendering it insecure. A previous judgment for a co-sharer, combined with a partition deed and an unchallenged commissioner's report, is sufficient to prove re-formation in situ.
Headnote:(A) Code of Civil Procedure, 1908 - Section 75 and Order XXVI, Rules 9 and 10 - Indian Evidence Act - Section 36 - Land disputes involving riverine formations - Re-formation in situ - Proprietary rights of permanently settled estates - Burden of proof - Admissibility of previous judgments and partition deeds - The bed of a public navigable river is the property of the Government, but if private property is submerged and subsequently left bare by the water, it belongs to the original owner. In disputes over boundaries of a permanently settled estate traversed by a navigable river of variable course, the court should proceed upon an attempt to justify the title rather than render it insecure.
(B) Evidence - Admissibility of previous judgments - A judgment in favor of a co-sharer, when followed by a deed of partition among co-sharers and the Government, constitutes material evidence to establish the title of other co-sharers to the land.
(C) Local Investigation - Weight of Commissioner's report - A commissioner's report based on local investigation and site visits, if not challenged or cross-examined, carries significant weight and should not be interfered with except upon clearly defined and sufficient grounds.
Facts of the case:
A proprietor of a permanently settled estate sought a declaration of proprietary rights over lands formed in a river, claiming they were re-formations in situ of his estate. The trial court ruled in favor of the plaintiff based on a commissioner's report and a previous judgment involving a co-sharer. The High Court reversed this decision, holding that the previous judgment was inadmissible and the plaintiff failed to discharge the burden of proof regarding the land's status at the time of the permanent settlement.
Findings of Court:
The commissioner's report, which found the land to be a re-formation in situ, was admissible and weighty evidence as it remained unchallenged. The previous decree in favor of a co-sharer, coupled with a subsequent partition deed, served as material evidence of the plaintiff's title. The court found that the High Court had been over-critical of the commissioner's report and had wrongly excluded the previous judgment.
Issues: Whether the disputed lands were re-formations in situ of a permanently settled estate; whether a previous judgment in favor of a co-sharer and a subsequent partition deed were admissible as evidence; and whether the commissioner's report was sufficient to establish the plaintiff's claim.
Ratio Decidendi: The court held that where a navigable river's course is variable, the burden of proof should not be applied so strictly as to defeat a title to a permanently settled estate. A previous judgment for a co-sharer, when linked by a partition deed, is material evidence. Furthermore, a local commissioner's findings, if not contested during trial, should be given due weight.
Result: Decree of the High Court set aside and decree of the Subordinate Judge restored.
Legal Category Hierarchy
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property law
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land law
- alluvion and diluvion
- permanent settlement
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land law
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practice and procedure
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evidence
- admissibility of judgments
- commissioner's reports
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evidence
Judgement
Appeal (No. 2 of 1921) from a judgment and decree of the High Court (March 14, 1919) reversing a decree of the Subordinate Judge of Nadia (June 19, 1917).
The suit was brought by the appellant against the Government and related to char lands formed in the Padma river. The plaintiffs case was that the lands were re-formations on the site of his permanently settled estate, and that consequently he was entitled to hold them independently of certain settlements entered into with the Government by his adoptive mother and himself in 1891 and 1910 respectively; the plaintiff claimed the return of land revenue paid by him under those settlements.
The facts appear from the judgment of the Judicial Committee.
The trial judge made a decree in favour of the plaintiff acting on the report of a commissioner who had been appointed to make a local inquiry, and upon a judgment of the Privy Council delivered in 1906, in circumstances which appear from the judgments of the Judicial Committee.
The High Court (Beachcroft and Greaves JJ.) allowed an appeal by the Government, and dismissed the suit. The learned judges held that the judgment of 1906 was not admissible in evidence, and that the admissible evidence was not sufficient to discharge the onus upon the plaintiff.
1922. Nov. 30; Dec. 1, 4. Dunne K.C. and Wallach for the appellant. The result of the local investigation, ordered and made under the Code of Civil Procedure, 1908, s. 75, and Order xxvi ., rr. 9, 10, should not have been interfered with except upon clearly defined and sufficient grounds Surut Soondree Debea v. Prosunno Coomar Tagore . (( 1870) 13 Moo. I. A. 607, 617.) The report was not challenged by the Government, and the grounds upon which its conclusions were rejected were not put to the commissioner or supported by the evidence. The judgment of the Privy Council in 1906 should not have been excluded. Having regard to the circumstances, more particularly the partition subsequently made, it estopped the Government; If it did not amount to an estoppel it was material evidence in the case. Upon the whole evidence the plaintiff established his case. [Reference was made to Secretary of State for India v. Maharaja of Burdwan (( 1921) L. R. 48 I. A. 565.), and Haradas Acharjya Chowdhuri v. Secretary of State for India . (( 1917) 26 Cal. L. J. (P. C.) 590.)]
De Gruyther K.C. and Kenworthy Brown for the respondent. The burden of proof was upon the appellant. The judgment of 1906 was not admissible either as raising an estoppel or as evidence. The co-sharer was not then suing on behalf of the appellant, because his adoptive mother had previously taken a temporary settlement; the appellant himself took one in 1910. When the adoptive mother took a settlement she was in possession as a widow, and her act bound the estate. The former suit arose in different circumstances, and was decided upon different evidence. A consideration of the various maps shows that the commissioner came to a wrong conclusion. [Reference was made to Jagadindra Nath Roy v. Secretary of State for India . (( 1902) L. R. 301. A. 44, 52.)]
Dunne K.C. replied.
1923. Jan. 23. The judgment of their Lordships was delivered by
LORD PHILLIMORE. This action was brought in the year 1912 by the plaintiff, who is a zamindar, for a declaration of his proprietary right to certain land in the district of Nadia, and for a declaration that he had been twice assessed for revenue in respect of it, and for a return of the overpaid revenue in past years. He succeeded in the Court of the Subordinate Judge, but that judgment was reversed on appeal, and now he has appealed to His Majesty in Council.
The case made by the plaintiff was that the tract of land in question was within the collection or block or taraf of villages known after the name of its principal village as the Taraf Jotashai in the pargana of Laskarpur ; his case being that this pargana consists of seven mauzas or villages described as Jotashai Ramkristopur, Nowser
