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TMI Blog1924 (5) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... er of July 15, 1872. 4. On September 1, 1839, a grant was made by the Government to Debnath Roy, benamidar for the plaintiffs' predecessors in title, of a tract of the jungle and forest land then known as Tushkhali, but later as Debnathpur. The grant was an ijara lease for twenty years, and was rent free. 5. Debnath Roy, taking advantage of rules recently framed by the Government, obtained a grant on November 17, 1856, of the portion of waste land in the Sunderbans estimated to contain 34,000 bighas, described as lot or abad Debnathpur, shown in Captain Hodge's map and bounded on the south and west by the Sapleza and Baleswar rivers respectively. The transaction was evidenced by a patta and a kabuliyat (exhibit 3). The grant was at a progressive rent for a term of ninety-nine years, to take effect from September 1, 1839, and power was reserved to the Government to make a survey and measurement at any time between the twentieth and thirtieth years from that date to ascertain the area of the land granted and to calculate the stipulated revenue. In the course of a survey of the leased lands directed by the Commissioner of the Sunderbans in 1858, a map was prepared in or abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bedford was appointed extra Assistant Superintendent and Mr. Beatson-Ball was again appointed Superintendent. 7. As already stated in 1900 the Government decided to make a revenue survey of the Backergunj district in accordance with the provisions of the Bengal Tenancy Act (VIII. of 1885). Whilst the revenue survey was proceedings - itself a work of great labour, minuteness and complexity - it was considered desirable to make a survey also of the alluvial accretions that had taken place to the north and east of the two rivers, Sapleza and Baleswar, by the recessions of the rivers between the years 1872 and 1900. The entire proceeding is set out in considerable detail in the final report of the Diara Commissioner (p. 30 of Part III.). This is an important document which requires full consideration to judge whether the revenue authorities acted in accordance with the law or not in carrying out the diara measurements : "It was originally intended," says the report," that the diara survey should be carried out concurrently with the preparation of the record of rights in the district and by notification No. 1967 T.R. dated October 2, 1900, published in the Calcutta Gaze ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled within fifteen days from the date of receipt of this notice." 11. No objection appears to have been filed. The Diara Collector accordingly made his order for the assessment of the accreted lands on October 22, 1914. The objectors (the plaintiffs) applied for time (apparently for further representation), which was allowed three times. But they appear to have done nothing, and the order for assessment was finally enforced on February 2, 1915. The plaintiffs there-upon execute a kabuliyat simply stating that they would bring a suit in the civil Court in respect of the said diara lands and that they executed the kabuliyat under protest. 12. By a further notice of February 11, 1915, it was stated that it had been found, on a comparison with the settlement map of 1870, that smaller areas had formed as diara accretions. This correction was based upon the fact that it had been discovered that certain diluvion had taken place, reducing the extent of the emergent or alluviated lands. It was accordingly just and proper that the assessment should proceed upon the extent thus corrected. The parties were thus joining issue upon the fact (1.) of alluvion and its extent, and (2.) wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in particular, on the legality of the assessment. 21. The plaintiffs' contention that Rule 745 of the Bengal Settlement Manual was expressly incorporated in their lease cannot be sustained, nor is there any force in their argument that this rule was otherwise a bar to assessment proceedings even if legally initiated. 22. Equally ineffective is the contention that a survey after the thirtieth year from its commencement was in contravention of the terms of the lease; the survey proposed was of land not comprised in the lease. For this reason, too, the provision in the lease defining the rate of revenue has no application. 23. The High Court's view expressed in the forefront of their judgment that mahal Debnathpur is not, as Act IX. of 1847 requires, "an estate paying revenue directly to Government," is obviously erroneous, as is its ground of decision on the position of the lands in dispute and the character of the rivers Baleswar and Sapleza. 24. With the exception of the one point about to be noted, their Lordships have now discussed all the objections that were dealt with in the course of a minute and protracted argument, and they are of opinion that these ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, that it is not sufficient to submit in a Court of law that, upon the documents before the Board of Revenue, doubts arise as to whether this, that, or the other detail of investigation should have been set to rest more clearly in the course of the administrative procedure. If such doubts arise upon points of fact, the Board of Revenue is competent to deal with them and is, further, the proper c Court before which they should be stated. In order that the doubts should be promptly set at rest, it may have to be on the ground itself. Such is the proper function of an administrative body. 29. All other objections having been dealt with, the one which remains is set out in para. 7 of the plaint in the following terms : "That actually no new survey was made of any land on the banks of the rivers Baleswar or Sapleza in accordance with Government notification No. 1967 T.R., dated October 2, 1900, issued under Act IX. of 1847, and that no map was prepared Under the said Act." 30. This objection is in two parts, first, that there was no new survey, and, second, that there was no map. On these subjects the two witnesses are the Diara Deputy Collector, Hara Kishore Biswas himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in exhibits N, N(1), etc., are in my hand. I put them on that occasion in the locality. I showed the diara as also the diluvion lines on the map." 32. As already explained, not only had this land been previously surveyed and maps made as mentioned, but much care seems to have been taken, not only to mark the alluvion in 1904-5, but in 1914 to give the benefit to the taxpayer by a resurvey and a redrawing so as to exclude from accessibility land subsequently diluviated. 33. After a careful and anxious examination of all the facts submitted, their Lordships are quite unable to affirm that a diara survey was not made. It is true that one map was superimposed upon another, surely a very natural thing to do when land was supposed to have undergone accretion between two dates; but the land itself was visited and surveyed. 34. What remains appears to be that - granted superimposition of plans - a separate map was not made of the alluviated land per se. That is to say, the results of the comparative map formed by inscribing the results of superimposition marked upon the maps used in that process, and when marked thus formed a comparative map, were not put upon a separate piece of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd they further desire to add that, while the survey proceedings and the map proceedings had been the subject of the examination of the two officers practically and personally connected with this work, the respondents, who have resisted throughout having assessment made on these lands, did not appear as witnesses on the subject, although, in the evidence already given, it had been clearly shown that the survey had properly been made in the presence of many persons named. 39. It would rather appear as if the whole of this point was a mere incident in a case which was essentially founded on a mistake. The respondents resisted the assessment of this increment of the estate upon grounds which this Board has recently found to be unsound in law. They maintained, in short, that the mahal included the increment, because its boundaries extended in the case of each of the rivers mentioned - namely, the Baleswar and Sapleza--ad medium filum. The High Court, in their judgment, erroneously treated this as a sound ground. Their judgment was pronounced upon March 15, 1920. 40. But the law applicable to this subject is to an opposite effect, as has been settled in the case of Secretary of State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in this action, although claimed as part of char Raninuggur No. 2, really fell within char Raninuggur No. 1, and that there had been a confusion of mauza Jirat, which lay in the north of the disputed area, with an area called char Jirat, which lay outside of it and to the south, some miles away. Their Lordships' Board has had occasion before now Rajcoomar Roy's Case L.R. 19 I.A. 140 to deprecate the practice of 'propounding riddles of this kind,' and to point out how rarely they succeed. It may be doubted if such efforts are worth the labour they involve. After the best consideration that they could give, their Lordships are clear on one point only, namely, that this case was not made at all at the trial, and is not made out now." 43. The Board is of opinion that these observations fitly apply also to proceedings in the Board of Revenue, a Board specially charged with the settlement of disputes as to boundaries and changes therein and other matters of fact and procedure which are capable of being most satisfactorily treated with all the advantages of local and special and accumulated experience. It has been noted accordingly that objections were taken and di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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