JUDGMENT

1. The litigations which have culminated in these two appeals were commenced by the appellants against the Secretary of State for India in Council, for declaration that the disputed lands in each suit were included in permanently settled estates held by them, that they were not liable to be assessed, as they have been assessed, with revenue by the Collector under the Bengal Alluvion and Diluvion Act, 1847, and for consequential reliefs. The defence of the Secretary of State in substance was that the disputed lands were not settled with the predecessors of the plaintiffs at the time of the Permanent Settlement and that they lay, at that time, in the bed of public tidal navigable rivers. The Subordinate Judge has dismissed the suits on the ground that the plaintiffs had failed to prove that the lands were included in the permanently settled estates held by them, and that consequently the proceedings for assessment of revenue could not be deemed illegal and without jurisdiction. The conclusion has been assailed before us as opposed to the facts established by the evidence and to well-recognised principles of law.

2. The lands in Suit No. 5 of 1915 and Appeal No. 12 of 1918 are claimed as part of the permanently settled estate No. 2699; they have been formed by the recession of the rivers Kaliganga and Dhulia and are situated in Mouzas Bhatsala, Nailtala and Chota Buiohakati. The lands in Suit No. 6 of 1915 and Appeal No. 127 of 1918 are alleged to appertain to the permanently settled estate No. 2694; they have emerged out of the bed of the river Charamuddi and are situated in Mouzas Char Hijaltala, South Char Hijaltala and Chandpura. It will be convenient to refer to the facts of the two suits separately.

3. As regards the first suit, there can be no doubt that the disputed lands did in recent times form part of the beds of the rivers Kaliganga and Dhulia and are now dry lands because the rivers have receded from their former beds. The substantial question in controversy is whether at the time of the Permanent Settlement, these river beds were settled with the predecessors of the plaintiffs as part and parcel of the estate granted to them. The plaintiffs can succeed, only if they can establish the affirmative of this proposition. The burden of proof lies on them, on the elementary principle that if their allegation is not made out, the decision of the Revenue Authorities is not displaced and remains unaffected. The Permanent Settlement papers have not been produced in this suit. The plaintiffs have consequently been constrained to rely upon the Thak and survey maps, made in 1859 and 1860. On a scrutiny of these maps, two cardinal fasts are discovered, which have an important bearing upon the solution of the controversy between the parties.

4. In the first place, it is clear that the river Dhulia which adjoins Bhatsala as also the river Kaliganga (sometimes called Adajuri) which pisses by Mouzas Nailtala and Chota Buiohakati, were both large tidal navigable rivers at the time of the surveys. The Kaliganga was 405 feet wide, while the breadth of the Dhulia at different places was 8:0, 960 and 1,200 feet respectively. The plaintiffs have endeavoured to negative the effect of this evidence, by an assertion that at the time of the Permanent Settlement these rivers were narrow channel; no evidence has been adduced in support of this allegation, The oral evidence, as might have been anticipated, is of no value. On the other hand, Runnell's map which is based on surveys made between 1764 and 1773, and has been produced on behalf of the Secretary of State, indicates the existence of Kaliganga and Dhulia as large navigable rivers in those days. The map of 'Alexander Hodges prepared in 1831, in so far as any conclusion can be drawn therefrom regarding the general outlines of the locality, indicates that at that time Dhulia was a large navigable river. The conclusion may, consequently, be drawn, with approach to such certainty as may re