Judgement

Appeal (No. 28 of 1922) from a decree of the High Court (March 15, 1920) affirming a decree of the Subordinate Judge of Backergunj.

The suit was brought by the present respondents against the Government for a declaration that certain alluvial lands were within the ambit of mahal Debnathpur, of which they held a settlement from Government and for the cancellation of orders of the Collector, affirmed by the Board of Revenue, assessing certain revenue thereon, under Act IX. of 1847.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge made a decree in the plaintiffs favour.

An appeal to the High Court by the present appellant was dismissed. The learned judges (Fletcher and Ghose JJ.) were of opinion that Act IX. of 1847 did not apply owing to the fact that the lands were in the Sundarbans and the nature of the lease held by the respondents. Further, they agreed with the trial judge in holding, though on slightly different grounds, that it was not established that the lands were not included in the respondents mahal.

1924. Feb. 19, 21, 22, 25. Dunne K.C. and Kenworthy Brown for the appellant. Act IX. of 1847 was applicable. The view of the High Court that the emerged lands were settled for a leasehold interest was erroneous ; the document of 1839 constituted a revenue settlement. The decision of the Board in Secretary of State for India v. Maharaja of Burdwan (( 1921) L. R. 48 I. A. 565.), given after the present case was before the High Court, shows conclusively that the Court was wrong in considering that as the emerged lands were within the medial line of the river bounding the estate they were not liable to assessment under the Act. There was no irregularity of procedure with regard to the map. The Act contemplates a new map showing merely the land in its existing state. The assessment is not made by the surveyor, but by the revenue authorities, upon a comparison of the new map with previous maps. The Board of Revenue held that the map was sufficient. If land assessed under the Act is already assessed, the civil Court has jurisdiction ; save in that case the decision of the Board of Revenue is final Secretary of State for India v. Fahamidunnissa. (( 1889) L. R. 17 I. A. 40.) No technical objection to the procedure as to the map was raised before the revenue Courts. [Reference was made also to Jagadindra Nath Roy v. Secretary of State for India. (( 1902) L. R. 30

I. A. 44.)]

De Gruyther K.C. and Dube for the respondents. Act IX. of 1847 does not authorize the proceedings taken in the case. A comparison of the Act with Ben. Reg. II. of 1819 shows that the finality of the decision of the Board of Revenue is only as to the amount of the assessment; the question of liability to assessment is always within the jurisdiction of the civil Court. The new map contemplated by the Act is one which on its face shows the old and new line of diluviation. There was no identification of the old line upon the ground.

Dunne K.C. replied.

May 2. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a decree dated March 15, 1920, of the High Court of Judicature at Fort William in Bengal, which affirmed a decree dated July 27, 1918, of the Additional Subordinate Judge of Backergunj.

The plaintiffs are Roy Jatindra Nath Chowdhury and Roy Harendra Nath Chowdhury. They instituted this suit on January 30, 1917, after due notice, against the Secretary of State for India in Council, contesting the legality of the assessment imposed in the course of an alleged diara survey on lands in the villages of Amragachi Hagalpati and Nizamia Gopekhali in the district of Backergunj.

These villages are part of an estate called Debnathpur bearing towzi No. 4908 of the Backergunj collectorate owned and possessed by the plaintiffs. The plaintiffs title to this estate is undisputed, and its earlier history is set forth in a rubokari of the Sunderbans Commissioner of July 15, 1872.

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