JUDGMENT

1. The appellant in this case (the plaintiff in the suit) is the Raja of Jessore. The respondent is the Commissioner of the Sunderbuns, representing the Government of Bengal. The real object of the suit is to obtain a judicial declaration that the lands, which are the subject of it, form part of Pergunna Shahosh, the revenue on which was permanently assessed by the decennial settlement with the appellant's ancestor; and on that ground to set aside certain instruments which have been executed by or on behalf of the appellant to Government for the payment of the revenue lately assessed on the same lands, on the assumption that they were not part of his settled estate; and to recover back the payments which have been made to Government under that engagement. The persons who are in actual possession of the lands are not parties to the suit, which is erroneously stated to be one for the recovery of possession,--an error which has led to some confusion in the argument. The true nature of the suit is shown by the issues which have been settled in it. These were:--

1. Whether the boundaries of lot No. 221 fixed by Mr. Dampier, the former Commissioner of the Sunderbuns, in 1829, in accordance with rule, not having been set aside up to this date by any Court, and the plaintiff not having filed objections in reference to such boundaries for thirty-one years, his claim was barred by clause 2, section 13 of Regulation III of 1828.

2. Whether the land claimed formed part of the decennially settled Pergunna Shahosh, or the right of Government as being part of the Sunderbuns, and whether the plaintiff's former proprietor had ever been in possession of the land.

3. When the disputed land with its boundaries had been released from the claims of Government on proof of its being rent-paying or mal land, and subsequently by means of survey, dowel was unjustly taken for it, on the allegation that it was the right of the Sunderbuns, whether the plaintiff is entitled to have the said dowel set aside, and obtain possession of the land, as his mal right, together with wasilat.

2. The history of the pergunna is briefly this:--After the perpetual settlement, the then Raja, the appellant's grandfather, mortgaged it to one Biswanath Bose. He is said fraudulently to have allowed the revenue to fall in arrear, and to have purchased the estate when put up for sale by Government benami some time in 1804. This transaction was afterwards impeached, and the Government (we must assume regularly) declared the estate to be forfeited, but in 1825 re-granted it to the appellant, then an infant. It is alleged, and not disputed, that the effect of this re-grant was to remit the appellant to the precise rights of his ancestor under the perpetual settlement. The estate, between 1825 and the date at which the appellant attained his majority, was administered by the Collector and other revenue officers acting as the Court of Wards, but their acts are material only, as bearing upon one or other of the issues in the suit; and particularly upon that which affirms that the lands in question formed part of Pergunna Shahosh in 1792.

3. This Pergunna, whatever were its precise boundaries, unquestionably abutted upon, and at least on one side of it was bounded by that large tract of waste and jungle land, which forms the seaboard of the delta of the Ganges, and is known as the Sunderbuns. And it is certain that the Sunderbuns, whatever were then their precise limits, were neither included, nor intended to be included, in the decennial settlement of 1792, but remained the property of Government as the general owners of the soil.

4. From the quinquennial register of 1795, it appears that two of the component parts of Pergunna Shahosh were the Mauzas or Chaks of Tildanga and Komarkola. There is, however, no evidence to show what the areas of these Mauzas, when settled, were. They were situated at two of the points at which Pergunna Shahosh touched the Sunderbuns. And the broad quest