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TMI Blog1949 (1) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals and appellant in the second plaintiff No. 2) and the other trustees of a trust (plaintiffs) created by one Nowroji Jamsetji Wadia with respect to two villages "Juhu" and "Vile Parle" for the recovery of non-agricultural assessment collected by the Government from certain lands in these villages. 3. By a grant in 1848, the Government granted to Nowroji the two villages, "Vile Parle" and "Juhu", which are situated in the island of Salsette. These have now become prosperous residential suburbs of Bombay. Shortly stated, the grant after reciting that the grantee had prayed that a Government grant of ₹ 4,000 per annum which he had enjoyed might be exchanged for a grant of villages in Salsette, stated that the two named villages "are hereby assigned to you and your heirs in perpetuity". This statement was followed by a description of the boundaries of the villages with a detailed statement of the land revenue paid by the occupant owners amounting to ₹ 4,679-1-8. From this was deducted "the amount of your inam". It was then stated that the difference along with the value of some trees, amounting in all to & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question whether, prior to the levy of the non-agricultural assessment, an agricultural assessment had been fixed under the Bombay Land Revenue Code of 1879, such being under Section 48(2) a pre-requisite for the fixing of a non-agricultural assessment. This is the main question for decision before the Board. 6. Besides the above question which is common to both suits, certain other questions had also to be decided by the trial Court. These were (1) in the "Vile Parle suit"-whether the above question has become res judicata by reason of the decision of the Privy Council in Wadia v. The Secretary of State for India in Council (supra); (2) in the "Juhu suit"-(a) whether the Government is estopped from raising their present contention that there was no survey settlement under the Code of 1879, (b) whether the suit is incompetent by reason of plaintiffs' failure to serve notice on the Government (defendant) complying with the provisions of Section 80 of the Civil Procedure Code, (c) in case the plaintiffs succeed, what is the period for which they are entitled to recover the non-agricultural assessment, i.e. whether it is three years only under Article 62 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships intimated to counsel that since the villagers in the two villages in the possession of non-agricultural land therein and paying non-agricultural assessment were interested in the appeals, it was desirable that some such villagers should be brought on record and appear at the hearing. Two villagers-one from "Juhu" and another from "Vile Parle"-have now been added in the respective appeals by Order in Council dated August 5, 1948-Through their learned Counsel Mr. Subba Row they generally support the Government. 13. Their Lordships will first consider the appeal in the "Juhu suit" (i.e. the second appeal before the Board.) 14. As already stated, this suit along with the other, the "Vile Parle suit", was decreed by the trial Court, but the decree in this suit was reversed on the ground that notice which had been served on the Government did not comply with the provisions of Section 80 of the Civil Procedure Code. That section states that: No suit shall be instituted against the Crown-until the expiration of two months next after notice in writing has been delivered to or left at the office of.... (c) in the case of a suit against a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion precedent to the filing of the suit was not fulfilled. 16. Their Lordships fully concur with the above view. The provisions of Section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice valid in law has been served on the Government. In the present case it is not contended that any notice on behalf of plaintiffs Nos. 2 and 3 was served on the Government before the filing of the suit. Their Lordships have not been shown any provision in the Code enabling the trustees to sue in the name of the trust. For these reasons the suit against the Government must be held to be incompetent and the appeal fails. No further question therefore arises for decision in this appeal. 17. Their Lordships will now take up for consideration the appeal in the "Vile Parle suit" (i.e. the first appeal before the Board). 18. The first point for decision in this appeal is whether the main question which their Lordships have to decide has become res judicata by the decision of the Board in Wadia v. Secretary of State for India (supra). It is not contended that the decision of this question has become res judicata in the 'Juhu suit' a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which, if decided in their favour, would have involved the dismissal of the suit. It is clear that the question was not directly put in issue between the parties to the suit because of the admission to which their Lordships have referred. In support of the argument reliance was placed on Explanation IV of Section 11 of the Code of Civil Procedure which runs as follows: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. It is no doubt true that this matter might have been raised, and if raised, a decision on it might have resulted in the dismissal of the suit against the Government, but the question is, ought this matter to have been raised by the Government? Their Lordships think it is impossible to say that the Government ought to have raised it, because of the admission made in that case. It is obvious that the most important question with which the Government was concerned was the construction of the grant, namely whether it was not merely an assignment of the revenue or whether it amounted to a grant of the proprietorship of the villages to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 3,000. In 1886, after the new Act had come into force, the Government announced to the grantees that a settlement had been introduced and since then recoveries had been made according to that settlement until the introduction of the non-agricultural assessment in these villages. It will be observed that the work of the survey settlement started under the Act of 1865 was completed in 1886 under the new Act of 1879. It is not disputed that the Government continued to levy this assessment from 1886 onwards for something like fifty years. The Courts in India have rightly drawn special attention to this fact which is of considerable importance in deciding this appeal. 23. To appreciate the arguments advanced before the Board it is necessary to refer to certain relevant provisions of the Acts I of 1865, and V of 1879, relating to survey settlement. The provisions of Act I of 1865 are as follows:- Section 25. It shall be lawful for an officer in charge of a survey to assess to the land revenue, under such general and local rules as may be in force in the Survey under his charge, all lands cultivated or uncultivated, and whether hitherto assessed or not, provided that such assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and relating to any of the matters hereinafter dealt with, shall (so far as they are consistent with this Act) be deemed to have been respectively prescribed, made, furnished, conferred, issued and published hereunder. And all proceedings now pending, which have been commenced under any enactment hereby repealed, shall be deemed to have been commenced under this Act, and shall hereafter be conducted in accordance with the provisions of this act. 26. Section 3(19), now (20), "alienated" means transferred in so far as the rights of Government to payment of the rent or land revenue are concerned, wholly or partially, to the ownership of any person. 27. Section 48(1) and (2) have already been referred to. 28. Sections 65 and 66 provide for the fixing and levy of altered assessments under Section 48, in unalienated land. 29. Sections 95-117 make up Chapter VIII "of Survey Settlements and the Partition of Estates." 30. Sections 100 and 101 authorised the officer in charge of the survey to fix assessments. 31. Section 102(in Chapter VIII) provided:- The assessment fixed by the officer in charge of a survey shall not be levied without the sanction of Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at or about which the assessments will be announced as aforesaid. If the holder or other person interested in any holding do not appear in person or by agent, he shall be subject, nevertheless, to the same liabilities as if he had attended. When the assessments have been announced in the manner provided in the first clause of this section, the survey settlement shall be held to have been introduced." "Section 216(Chapter XIV). Save as is otherwise provided in Section 111 and hereinafter in this section, the provisions of Chapters VIII to X shall not be applied to any alienated village except for the purposes of fixing the boundaries of any such village, and of determining any disputes relating thereto.... But it shall be lawful for the Governor in Council, on an application in writing being made by the holder of any such village to that effect, to authorise the extension of all or any of the provisions of the said chapters to any such village. 36. In support of his contention that there was no non-agricultural assessment because there was no pre-existing assessment fixed under the provisions of the Code of 1879 (i.e. any survey settlement) Mr. Pringle, learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggested that agricultural assessment had not been properly introduced into these villages, and that he must draw all proper inferences against the Government. 41. So far as the application in writing required under Section 216 from the grantees is concerned, he stated that (p. 642, ante) : ...we must presume that such an application was made, and has been either lost or destroyed. The original, of course, would be in Government custody, but nobody suggests that Government is suppressing anything. The evidence is that Government has in fact not got any such application at the present time and the grantees admit that they have not got any copy of it. But a letter may easily be lost or destroyed in the course of fifty years. 42. Dealing with the question of "sanction" he expressed the following Opinion (p. 642, ante) :- So far as Government sanction is concerned, as I read Rule 89 and Section 102, it is not necessary that Government's sanction for introduction of survey settlement should be notified in the Gazette, unless the sanction goes on to fix an assessment for a specified number of years. But the mere sanction, without fixing any number of years, could, I thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever that an announcement was made to the grantees that a survey settlement was made in the suit villages, or that the Government continued to levy the rates for something like fifty years without themselves suggesting any legal difficulty in the way. 46. Under Section 48(2) of the Act of 1879 it is only when as assessment has been fixed "under the provisions of this Act" (Act V of 1879) that the Provincial Government can introduce non-agricultural assessment, i.e. "altered" assessment under the Act. The burden of proving that a survey settlement under the Act has been made lies on the plaintiffs; that is to say, they have to prove that an application in writing under Section 216 of the Act to extend the provisions of Chapter VIII to their villages was made to the Government, and that the Governor in Council authorised such extension; and that sanction under Section 102 of the Act was granted and was notified as required by the rules. These the plaintiffs have failed to prove by direct evidence. It is true that the Government have shown by examining the Gazettes from 1871 to 1917 that there is no record of any sanction and that they have sot got with them a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Collector's office" and this fact also can well be presumed to have taken place at this distance of time. Further-from the undisputed evidence which shows conclusively that the grantees were formally told that a settlement had been made-which must obviously be held to have been done under Section 103 of the Act-it may well be held that all the necessary preliminary steps required to make a valid settlement have been taken by the Government. Section 114 of the Indian Evidence Act entitles a Court to presume:- The existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustration (e) says "The Court may presume." "that judicial and official acts have been regularly performed." 49. While Section 114 of the Indian Evidence Act states the general maxim that all acts are presumed to have been rightly and regularly done, illustration (e) draws attention to a special application of the maxim with particular reference to judicial and official acts. It is impossible to think that the office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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