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, Nowsera Ramk