The central legal point established in the judgment is the requirement for the Crown to establish that disputed lands are 'added' lands within the meaning of Act IX of 1847, and the principle of rebuttable presumption of continuity in determining the status of lands at the time of Permanent Settlement.

JUDGMENT

1. This is an appeal by the Secretary of State for India in Council, who was the defendant in a suit instituted by the plaintiff-respondent with a view to test the legality of an assessment of revenue made under the Bengal Alluvion and Diluvion Act (IX of 1847). The case for the plaintiff is that the disputed lands, which have been constituted into a new estate and assessed with revenue, belonged to him by virtue of his Zemindari right in Touzi No. 105 of the Collectorate of Pabna. The plaintiff maintains that the assessment could not have been validly made under the provisions of Act IX of 1847, as the lands are not "added" lands within the meaning of that Statute, but are re-formations in situ. The plaintiff seeks, in addition, consequential relief by way of recovery of possession and mesne profits. The claim is resisted on behalf of the Secretary of State substantially on the ground that the disputed lands formed the bed of the river Ganges, locally known as Padma, at the time of the Permanent Settlement, and were not included in the estate settled with the predecessor of the plaintiff; the lands were thus not assessed with revenue at that time, nor have they been so assessed at any subsequent period. On these pleadings, the substantial question in controversy was formulated in the third issue in the following terms:

Do the lands in suit appertain to estate No. 105 of the Pabna Collectorate, and were they assessed with revenue at !the time of the Permanent Settlement of that estate? Did these lands form part of a large navigable river at that time?

2. The Subordinate Judge has, after an elaborate enquiry, answered this question in favour of the plaintiff in respect of considerable portion of the disputed lands and has declared his title thereto as re-formation in situ of his permanently settled villages Nandalalpore, Paranpore and Sibrampore lying towards the north of a line S.R. drawn on the map of the Commissioner. Subordinate Judge has also granted the plaintiff consequential relief on this basis, the correctness of the conclusion of the subordinate Judge has been assailed in this appeal on behalf of the Secretary of State.

3. An additional point not taken in the memorandum of appeal, nor raised in the Court below, has been mentioned in the course of argument, namely, that the suit should have been dismissed as barred by limitation u/s 24 of Regulation II of 1819. This point, in our opinion, cannot be taken by the appellant for the first time in the course of argument here. The case for the appellant that as the final Order A Board of Revenue was made on the 25th January 1912 and the suit was not instituted till the 15th November 1915, that is, long after the expiry of the period of one year mentioned m Section 24 of Regulation II of 1819, as interpreted in secretary of State for India v. Profulla Nath Tagore 58 Ind. Cas. 896 : 24 C.W.N. 809 and Profulla Nath Tagore v. Secretary of State for India 58 Ind. Cas. 902 : 24 C.W.N. 813 the claim should be dismissed as barred by limitation, the substance of the matter, then, is that it is sought to be argued on behalf of the Crown that the suit is barred, not under Article 14 of the Schedule to the limitation Act, but by the provisions of Section 24 of Regulation II of 1819. That point was not taken before the lower Court; it has not been taken in the grounds of appeal to this Court, nor has notice been given to the respondent of the intention of the appellant to ask the leave of the Court to take this additional ground. Apart from this, a Court of Appeal will not allow such a point to be raised, if it involves the determination of questions of fact. A new point may be allowed to be raised by a party for the first time in appeal or second appeal, if it is a pure question of law and does not take his opponent by surprise: Basant Singh v. Mahabir Pershad 19 Ind. Cas. 571 : 31 C.L.J. 259 : 47 C. 733 : 17 C.L.J. 566 : 17 C.W.N. 669 : (1913) M.W.N. 481 : 11 A.L.J. 469 : 17 C.L