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TMI Blog1922 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fact and law: Narayana v. Chengalamma 10 M. 1 : 3 Ind. Dec. (N.S.) 751, Sita Ram Nathmal v. Sushil Chandra Das & Co. (?)63 Ind. Cas. 813 : 43 A. 553 (?) : 19 A.L.J. 495. In the present case, the objection attempted to be taken involves at least three questions of fact, namely, (I) whether the decision of the Board was communicated to the respondent, if so, on what date; (II) whether there are any facts which bring the case within the proviso to Section 24; and (III) whether there are any facts which make Section 31 applicable. Consequently, if the point were allowed to be taken under Order XLI, Rule 2, a remand would be inevitable. There is no explanation why the point was not taken in the lower Court or in the memorandum of appeal here; on the other hand, the respondent urges with good reason that a litigation which has already lasted for nearly seven years should not be further prolonged merely to enable the defendant to take a new point. We are of opinion that leave should not be granted under Order XLI, Rule 2. We need not accordingly examine the reasoning whereon the decisions in Secretary of State for India v. Profula Nath Tagore 58 Ind. Cas. 896 : 24 C.W.N. 809 and Profu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 C.W.N. 619 : (1922) A.I.R. (P.C.) 6 : 49 C. 103 (P.C.). If, in such circumstances, the relevant papers are withheld, the Court cannot but draw an inference adverse to the defence set up by the Crown. In this connection, we may usefully re-call the emphatic disapproval, expressed by Lord Shaw in Murugesam Pillai v. Gnana Sambanda Pandara Sannadhi 39 Ind. Cas. 659 at p. 661 : 44 I.A. 98 : 40 M. 402 : 25 C.L.J. 589 : 21 M.L.T. 288 : 32 M.L.J. 569 : 15 A.L.J. 281 : 1 P.L.W. 457 : 5 L.W. 759 : 21 C.W.N : 761 : 19 Bom. L.R. 456 : (1917) M.W.N. 487 (P.C.) of the practice, in which has grown up in Indian procedure, of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof and failing accordingly to furnish to a Court of Justice the best material and the best assistance for its decision. We need hardly emphasise that if the carriage of a suit or conduct of a defence in this style by a private litigant merits such disapprobation, similar management of a judicial proceeding on behalf of the Crown cannot escape without equal condemnation. In the case before us, the Trial Court has been constrained to adjudicate on the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relaid by the Revenue Authorities and the report of the Collector forwarded to the Commissioner on the 3rd November 1896, shows that Rennell's map was used to determine the situation of the mouzas relatively to the course of the river. The same course had been followed in 1881, and there is no reason why the map should not be used for a similar purpose now as in 1881 and 1896. 6. The next document which has an important bearing on the question of the location of the mouzas initially comprised in the estate now held by the plaintiff, is the mouzawari register of 1827. 1827 register shows the area and the boundaries of the villages at that time. It was kept apparently under Regulation V of 1816 which was extended to the entire Province by Regulation I of 1819. The document was in the custody of the Collector and its authenticity and probative value have never been questioned by successive Revenue Officers; indeed, some of them have thought that the register was of special value as probably based on the decennial papers. The entries in this register practically demolish the case for the Crown, and every effort that ingenuity could suggest was made by the legal advisers of the Cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Secretary of State 58 Ind. Cas. 902 : 24 C.W.N. 813. Indeed, if we are to apply the doctrine of presumitur retro enunciated by Lord Watson in Anangamanjari Chowdhrani v. Tripura Sundari Chowdhrani 14 C. 740 : 14 I.A. 101 : 11 Ind. Jur. 361 : 5 Sar. P.C.J. : 45 : 7 Ind. Dec. (N.S.) 490 (P.C.), and if we start backwards from 1854 and pass through 1849, our progress is arrested in 1827, when we find from the mouzahwari register that the lands of the mouzas were dry lands not yet diluviated. If, from that stage we proceed further backwards, we must apply the presumption that in 1789 and 1793 the condition of things was identical with that in 1827. If we proceed further backwards, we find affirmative evidence in Rennell's map that the condition in 1764 was the same as in 1827. The process of reasoning we have described is nothing beyond an application of the elementary principle that proof of the existence at a particular time of a fact of a continuous nature gives rise to a rebuttable presumption, within logical limits, that it exists at a subsequent time or has previously existed. The limits of time within which the inference of continuance possesses sufficient probative force ..... X X X X Extracts X X X X X X X X Extracts X X X X
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