Viscount Haldane:-

In this litigation the High Court at Fort William, as the Court of Appeal, reversed a judgment and decree of the Subordinate Judge, Third Court, 24 Parganahs. The appel lants had brought a suit in the latter Court for a declaration that a forfeiture by the Government of a certain lease and agreement was invalid and that they, as plaintiffs, were entitled to possession of the land, the subject of the lease.

The learned Subordinate Judge de cided in favour of the plaintiffs, but the High Court allowed an appeal from his decision and dismissed the suit. The present appeal is brought by the plaintiffs, and it seeks to have the decision of the learned Judge of first instance restored.

The only question now relevant for de termination is whether the resumption by the Government in 1906 of Crown land in the Sunderbans, originally leased on the 7th December, 1900, and a subsequent pottah by the Government, dated the 27th July, 1909, in favour of the respondent, Rudra Narayan Jana, were validly made.

The only material facts are not numer ous. A lot called Monsadwip in Saugor Island, Sunderbans, was put up to auction by the Government for settlement, and the highest bidder was one Golak Chandra Das. At his request the Govern ment on the 7th December, 1900, granted a lease in favour of Golak Chandra Das himself, Narayan Prashad Ballav, Pra sanna Kumar Maiti, Narendra Nath Bhuiya, and Cubir Chandra Patra. By partition deed the shares of the first three were declared to be of 4 annas each, and the shares of the last two of 2 annas each.

These lessees, or their representatives, were the original plaintiffs and the appel lants here. In August, 1903, the first respondent, Rudra Narayan Jana, pur chased from the successors-in-title of Golak Chandra Das, who had died, a 2 annas share of the 4 annas share to which the latter was entitled.

The lease of the 7th December, 1900, gave an occupancy right for forty years from April, 1901, of jungle land. Under the third clause of this lease one eighth of the entire area leased was to be cleared and to be in a fit state for cultivation at the end of the fifth year and at any time after the expiration of the fifth year the Sunderbans Commissioner or other officer appointed by the Government or any person authorised by him might enter on the land and cause it to be measured for the purpose of ascertaining whether this condition had been fulfilled.

The fourth clause provided that on failure to comply with the above clearing condition, the lessees should be liable at the discretion of the Government to the forfeiture of all rights in land under the lease or to an annual penalty. The Government, if the lease was determined, was to have the right of immediate re entry. There was also a provision for the construction by the lessees of "protec tive works" with a right in the Govern ment to put an end to the lease in case these were not constructed within a time prescribed.

In the view which their Lordships take of the case it is not necessary to consider this provision.

By an agreement of the same date with the lease, the 7th December, 1900, the lessees covenanted that they would undergo the penalties set forth in "the clauses of the lease," provided that the Sunderbans Commissioner or other offi cer should give to them or their legal representatives fifteen days notice within which to show cause why the penalties should not be enforced. No question now arises on this covenant or proviso.

On the 12th April, 1906, Mr. Sunder, who as Settlement Officer had taken over the duties of the Commissioner in the Sunderbans, an office which had been abolished, visited the property leased. He had previously made various intimations of visits which were not carried out, and he had, on the occasion on which he actually inspected, arrived three days before the time he had intimated.

These circumstances, however, do not affect the question of his right. He ap pears to have gone to the property and to have looked at it