Phear, J.@mdashThe essential facts of the plaintiff''s case are that the property which is the subject of suit originally formed part of his zamindari Sultangnnge in the District of Malda(sic) was surveyed by the Revenue Authorities as being a portion of that zamindari in the year 1847, and was from that time onwards, until the year 1861 or 1862, possessed and enjoyed by him the plaintiff as a substantive portion of Sultangunge. About that time the Ganges, by changing its course, flowed over and submerged this portion of the plaintiff''s zamindari; and this land remained submerged for two or three years until the Ganges by a further change in the same direction as before allowed it to emerge from the waters on the other side, so to speak, of the river. And in this state, it became attached to Mauza Gobindrampore, part of the zamindari of the second defendant, Rao Jogendro Narain Roy. After this occurrence, the plaintiff regained possession and enjoyment of this piece of land to a certain extent when he was dispossessed by Mr. Thomas Lyon acting under the authority of an ijara lease which he had obtained from the defendant Jogendro Narain Roy. At this stage of matters, the Survey Authorities came upon the scene, and finding this piece of land added to the zamindari of Jogendro Narain, they took proceedings under Act IX of 1847, and assessed an additional jama in respect of this land against Jogendro Narain Roy.
2. The plaintiff complains in this suit, which he has Brought against the Government, Jogendro Narain and Mr. Lyon, that by these proceedings on the part of the Government, the zemindar and the ijaradar jointly, he has been wrongly dispossessed of the property for which he sues.
3. The Government do not in this appeal seriously contest the facts of the case as alleged by the plaintiff, but maintain that the revenue proceedings, taken under Act IX of 1847, had the effect of concluding the matter, not only between Government and Jogendro Narain Roy, but between Government and everybody else including the present plaintiff, and that this suit will not lie.
4. The defendant Jogendro Narain Roy disputes the principal allegations of the plaintiff. But Mr. Lyon does not appear in this appeal.
5. We do not think it necessary to discuss in detail the evidence which has been given by the plaintiff. The lower Court has arrived at the conclusion upon that evidence that the principal facts alleged in the plaint are completely established. And we see no good reason for differing from the Judge upon this point.
6. It is almost beyond question that the land, which is the subject of suit, was included within the zamindari of Sultangunge as surveyed in 1847. It seems from the report of the Ameen that this land can be distinctly identified as forming a portion of the land which wag mapped in 1847; and we think that the plaintiff has, by his evidence, satisfactorily made out, that, until at any rate 1862 or 1863 when the Ganges passed over the land, he had enjoyed it as a portion of his zamindari. The witnesses speak to a limited amount of occupation and enjoyment of this land even after the Ganges had again shifted its course so as to allow this land to emerge from the water. And we see no good reason for doubting the substantial truth of their testimony in this matter. There is nothing of any weight to be put against it. And, on the whole, it appears to us, that we should sot be justified in disturbing the finding of the lower Court with regard to the facts of the case.
7. This being so, it follows that as against Jogendro Narain and Mr. Lyon, the plaintiff has made out a good title to this property. And the question next arises, is he by reason of the survey proceedings under Act IX of 1847 barred from recovering his property from the hands of these defendants on the strength of his title? His suit is not barred by the operation of the ordinary Acts of Limitation, because, according to the facts which we think are undoubtedly established, he had actual enjoyment of it long within the period prescribed by those Acts for the limitation of suits. The question, whether the proceedings taken under Act IX, and the final decision come to by the Commissioner upon those proceedings, had the effect of barring the plaintiff from bringing this suit even against the trespassers Jogendro Narain and Mr. Lyon, depends upon the proper interpretation of Act IX of 1847.
8. The Act itself is entitled "An Act regarding the assessment of lands gained from the sea or from rivers by alluvion or dereliction within the Provinces of Bengal, Bihar, and Orissa." And to some extent, this marks out the scope of the Act. From these words, we should gather that it was intended to apply only to a subject which was gained from the sea or from rivers by alluvion or dereliction--not to land seemingly gained from another proprietor by the mere changing of a river''s course. And the words of the preamble tend in the same direction. The Act then goes on to provide that periodical surveys of lands on the banks of rivers and on the shores of seas shall be made in order to ascertain the changes that may have taken place since the date of the last previous survey, and new maps shall be made from time to time.
9. In s. 5, it is enacted that, "whenever on inspection of any such new map it shall appear to the Local Revenue Authorities that land has been washed away from, or lost to, any estate paying revenue directly to Government, they shall, without loss of time, make a deduction from the sudder jama of the said estate equal to so much of the whole sudder jama of the estate as bears to the whole the same proportion as the mofussil jama of the land lost bears to the mofussil jama of the whole estate, &c." And in the 6th section it is enacted that, "whenever, on inspection of any such new map, it shall appear to the Local Revenue Authorities that land has been added to any estate paying revenue directly to Government, they shall without delay assess the same with a revenue payable to Government according to the rules in force for assessing alluvial increments, and shall report their proceedings forthwith to the Sudder Board of Revenue, whose orders thereupon shall be final." It seems to be very clear that the action, which the Government of Bengal is empowered to take by this Act, has direct reference to the land, which is at any time found in the possession of a zemindar, and enjoyed by him as a part of his zamindari bordering on the sea or on a river, and apparently gained therefrom. When the land so possessed by him is found by a comparison of the new map with the old map to be in excess of what he had previously been possessed of as constituting his zamindari, the Government is empowered to make an addition to the jama which is payable by him in respect of his zamindari. And all orders that may be made by Government in this matter, are, by the words of s. 6, rendered final; that is, as regards the person whom they may directly affect, namely, the zemindar.
10. In the case which is before us, as has been already stated, the plaintiff complains that the principal defendant, Jogendro Narain Roy, has, under cover of the Government survey proceedings, taken away from him a portion of his properties. And, no doubt, the Survey Authorities, when they made the new survey in 1866-1867, were led by some means to suppose that this piece of land, which the evidence given before us shows to be land belonging to the plaintiff, was at the time of the new survey possessed and enjoyed by Jogendro Narain as part of, or as land added to, his zamindari. And upon that state of facts it was settled with him, and an additional jama was assessed in respect of it upon his zamindari. So far as that addition to his jama is concerned, the orders of the Revenue Authorities are made final by s. 6, Act IX of 1847. But so far as the assumption of fact made by the Revenue Authorities, to the effect that this piece of land was land which had been gained by Jogendro Narain from the river by alluvion is concerned, there was no actual order made. And we think it never was the intention of the legislature that any order or declaration which might be considered as implied in that respect, by reason of the formal settlement of the land with Jogendro, should be made final by the words of s. 6 against third parties. So that in our view, the order which was passed by the Revenue Authorities in 1866-1867, assessing this additional jama upon the zamindari of Jogendro Narain, does not operate to take away the right which the plaintiff has to seek by a suit in the Civil Court to recover his property from the hands of those who are keeping it from him.
11. But it is further said that s. 9 of this Act IX of 1847 bars the suit. The section runs in these words:--"And it is hereby-enacted, that, except as regards the proprietary right to islands no suit or action in any Court of Justice shall lie against the Government, or any of its officers, on account of anything done in. good faith in the exercise of the powers conferred by this Act." And it is argued that the plaintiff is by these words barred from bringing a suit against the Collector as representative-of Government to recover this property, and, if barred against the Collector, he is also barred from bringing his suit against Jogendro Narain Roy and Mr. Lyon, who have had this property settled with them by the action of the Revenue Authorities.
12. It does not appear to us that this argument ought to prevail, in its entirety at any rate. In the view we have taken of the facts, it is perhaps not necessary for us to express a judicial opinion as to whether the words of this section would bar a suit of this kind from being brought against the Government, if the property sought to be recovered was actually in the hands and under the control of the Government. Speaking for myself alone, I may say that I do not at present see any reason to alter the view which J expressed on a former occasion in the case of Poorna Chunder Roy v. Balfour 9 W.R. 535, with regard to the meaning of an enactment some what similar to this section, namely, a portion of s. 87 of the Municipal Act (Beng. Act III of 1864). To me the words of this section seem to be limited to forbidding a suit wherein the plaintiff seeks to make Government, or any of its officers, responsible in damages on account of anything done in good faith in the exercise of the powers conferred by this Act; and do not necessarily extend to forbidding a suit which is brought to recover property, which either the Government or its officers might be instrumental in keeping away from the rightful owner. And it seems to me that the exception as regards the proprietary right to islands strengthens this view.
13. But however this may be, we think that upon the facts of this case, and evidence which has been given, the plaintiff''s suit, so for as concerns the Government, fails. Neither the Collector nor the Revenue Officers have done anything to take the property out of the hands of the plaintiff, or to keep it away from him. Under Act IX of 1847, the Revenue Officers could not rightly take action until they found the land which was sought to be assessed in the hands of the zemindar or whose zamindari it seemed to be added. Obviously the land must be added to the zamindari before the new assessment in respect of it can be made. And it appears to us upon the evidence in this case, that in the new survey of 1866-1867, by which this land was thakked with the zamindari of the defendant, Gobindrampore, proceedings were taken by the Revenue Officers bona fide, upon the land being ascertained by them to foe in the possession of the defendant or of his people. They did not themselves deprive the plaintiff of possession of the land) or assist the other defendant in keeping him out of it. Neither did they, by making the new settlement, pretend to deal with the land, and convey it to Jogendro Narain adversely to the plaintiff''s rights. In short, the plaintiff has not satisfied us that the Government has directly invaded or hostilely threatened his proprietary right, and has not shown any good cause for our making a judicial declaration of his'' right as against it. Therefore the decree in favor of the plaintiff in this suit ought to be limited to a decree against the defendant Jogendro Narain Roy and Mr. Lyon. In our view the suit, as against the Collector representing the Government, ought to be dismissed. In ordinary course this would be with costs; but regard being had to the defence which has been unnecessarily set up on the part of the Government, not only in the Court below but in this Court, that is to the effect that the action taken by the Government had the effect of transferring the property from the hands of the plaintiff to the defendant, we are of opinion that the Government is not entitled to its costs.
14. We think that as regards the defendant Jogendro Narain, the appeal should be dismissed with costs, and the decree of the lower Court affirmed; but, as regards the Government, the decree of the lower Court must be reversed, and the suit dismissed without costs. We do not think we ought to interfere with the order made in the lower Court, directing Jogendro Narain to pay the costs of Mr. Lyon.
