Beaumont, C.J:— In this appeal the learned Advocate-General takes a preliminary objection that no notice was given to the Collector of Bombay, who is the defendant, under section 80 of the cpc. That section provides that no suit shall be instituted against the Secretary of State for India in Council or against; a public officer in respect of any act purporting to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been given. The learned Advocate-General contends that having regard to the decision of the Privy Council in Bhagchand Dagadusa v. Secy. of State (1) it is now established that the giving of a notice under S. 80 is a condition precedent to the institution, of the suit and that the Curt has no jurisdiction to entertain a suit to which S. 80 applies unless that notice has been given. It is admitted here that notice was not given, and also that no objection was taken in the Court below on the ground that notice had not been given. But the learned Advocate-General argues that the question is one going to the jurisdiction of the Court and that the doing of an act necessary to confer jurisdiction cannot be waived since that would be conferring upon the Court, by the act of the parties, jurisdiction which the legislature has not-seen fit to give. In my opinion it is not necessary in the case to express any opinion upon the effect of Section 80 of the because I think that, reading the Bombay City Land Revenue Act 2 of 1876 with the Code of Civil Procedure, S. 80 does not apply to this particular suit. The Bombay City Land Revenue Act provides in. S. 8 that it shall be the duty of the Collector subject to the orders of Government to fix and levy the assessment for land revenue. Then S. 14 provides that the Collector's decision upon any question arising out of the provisions of Ss. 8 to 13 shall, unless superseded by the Revenue Judge, be binding upon all persons whom it may concern and shall be acted upon accordingly, but the Collector's decision shall be stayed, on any such person giving security to the satisfaction of the Collector that he will within thirty days from the date when such decision was made known to him institute a suit before the Revenue Judge for the purpose of contesting the legality of the Collector's decision. Now at the date of that Act there was no provision similar to section 80 of the cpc.

2. The first section passed in the terms of Section 80 is contained in the CPC, 1877, and it seems to me very improbable that the legislature when they passed the Civil Procedure Code of 1877 intended to provide that an undertaking given under Section 14 of the Bombay City Land Revenue Act to bring a suit within thirty days should in every case be broken by requiring the plaintiff not to bring his suit until after the expiration of two months. It is a well established principle resting on decided cases and recognized in section 4 of the cpc, itself that where there is a conflict between a special Act and a general act the provisions of the special act prevail. When one comes to look at Section 17 of the Bombay City Land Revenue Act, it provides that the Revenue Judge shall decide all suits brought before him against the Collector or any person on his establishment on account of land revenue or of acts done in their official capacities by the Collector or any of his assistants or other subordinates; so that section seems to draw a distinction between suits brought on account of land revenue and suits brought on account of acts done in their official capacity by the Collector or any of his assistants or other subordinates, and the words of Section 80 of the CPC, refer to the latter class of suits and not to the former. It seems to me that reading the two Acts together the effect is that where you have a suit such as this which is brought pursuant to an undertaking given under S. 14 within thirty days from the Collector's decision, then that is not a suit which falls within S. 80; it is a suit on account of land revenue brought under the special provisions of the special Act, and, in my opinion, the general provisions of S. 80 do not apply to such a suit. That being so, I think we must hear the appeal on the merits.

3. N.J Wadia, J.:— I agree.

4. (The appeal was then heard on the merits and the following judgment was delivered.)

5. Beaumont, C.J:— This is an appeal by the Collector of Bombay from the decision of the Bombay Revenue Judge. The plaintiff filed a suit praying for a declaration that there is a right on the part of the plaintiff in limitation of the right of Government to possess and hold her land mentioned in the plaint free from assessment for land revenue, or in the alternative, that it may be declared that the said land is liable to be assessed as of pension and tax or quit and ground tenure. The plaintiff is the present spiritual head of a Hindu Vaishnava temple situate at Cutch-Mandvi and as such is the owner of a piece of land situate at Bora Bazaar Street within the Fort, which is the piece of land in question in suit. So far as the title is concerned, the earliest title deed is dated 1788 and is a conveyance to two persons; than the property seems to have descended to the daughter of one of those persons, who in 1828 devised the land to her spiritual guru and the plaintiff claims under that guru. The learned Revenue Judge in his judgment goes into the history of land tenure in the island of Bombay, and it is nob, I think, necessary to deal with that matter at any length. It seems that when the island of Bombay was under the King of Portugal tenures were mostly of a feudal nature, that is to say, the land was held in return for services to be rendered to the Crown. In 1661 the island of Bombay was transferred by the King of Portugal to the King of England, and in 1669 by Letters Patent the King of England transferred the island with all his rights and powers in connexion therewith to the East India Company, and it is, I think, clear that the East India Company thereby acquired the general right to assess lands to tax, that being a right which has always been possessed by the governing power in India. After that transfer there seem to have been disputes between the Company and various holders of lands who claimed to have acquired their lands from the King of Portugal. In 1672 an agreement was come to between the Government of Bombay and these various subjects, which is known as “the Aungier Convention.” The effect of that was that the title of the persons who claimed the lands within the island was admitted subject to their paying an annual sum of 20,000 Xerphins and the lands subject to that tax are now known as pension and tax lands. There is no evidence that the land in question in this suit is pension and tax land, and there is no suggestion that any part of pension and tax has ever been paid in respect of that land. I think that we must assume that the land in question originally belonged to the King of Portugal and passed to the East India Company. It appears from the Dickinson survey which was made in 1813 that this land at that date did not pay any tax because it is mentioned in the survey as “paying no ground rent.”

6. Mr. Vakeel has suggested that the English statutes of limitation have some bearing on the question at issue, but, in my opinion, that argument is untenable. Apart from the question of any express limitation on the rights of the Company, it seems to me that the only way that the plaintiff can put her case is to say that inasmuch as she or her predecessor-in-title have been in possession of this land since at any rate 1788, and inasmuch as no land revenue has been paid at any rate from 1813, we ought to presume a grant to the plaintiff or her predecessor-in-title free from liability to be assessed to land revenue. No authority has been cited in favour of such a presumption. No doubt the Court always presumes that a person entitled to property will assert his rights, and if it is shown that for a long period of years he has not asserted his rights, the Court will presume that those rights have been granted away. But, in my opinion, that presumption cannot be made in the case of Government's right to levy a tax. That right if vested in the Crown is clearly a prerogative right, and if vested in some body claiming through the Crown it may be a liberty or franchise, but is clearly in the nature of a prerogative right. Government are not bound to levy assessment every year on all the lands over which they have power to levy assessment. There may be very good reasons why Government for a long period think it undesirable to assess a particular piece of land, and I think that it would be altogether unreasonable to presume that because Government have not for many years assessed particular land therefore that land has been granted free from liability to assessment. In this particular case, Government may have taken the view that this land was used for charity, and that it was undesirable to assess it. But if subsequently the policy of Government, or the user of the land, changes, it would be unreasonable to hold that Government have lost their right to assess. I, therefore agree with the learned Revenue Judge that apart from the question of express limitation the plaintiff's case must fail. The learned Revenue Judge has, however held that under Regn. 17 of 1827 there was an express provision exempting lands from the payment of land revenue if no payment had been made for 60 years. The first answer made by the Advocate General to that is that Regn. 17 of 1827 applied only to the moffusil and not to the city of Bombay. In 1827 a considerable number of Regulations were passed—all on 1st January,—and it is necessary to read them together. Regn. 1 is entitled:

“A regulation for forming into a regular Code all rules that may be enacted for the internal Government of the territories subordinate to the Presidency of Bombay.”

7. That Regulation, I take it, would apply to all the territories subordinate to the Government of Bombay and that general regulation repeals all the previous regulations. Then Regn. 2 deals with the constitution of Courts of Civil Justice, and the only material provision in that regulation is S. 16 and Appendix (E). S. 16 provides that there shall be a Judge in each zillah, who shall preside over the Court of Adawlut and have general control over the establishment annexed thereto, and the zillahs at present established under the Presidency of Bombay are as specified in Appendix (E), When one looks at Appendix (E) one finds various zillahs described in respect of the various moffusil districts, and then the last one is headed “The Presidency” and the Court referred to under that heading is the Court exercising revenue jurisdiction of the Island of Bombay and its adjacent dependencies. So that, in that Regulation zillahs include the Revenue Court, and “The Presidency” seems to be used as meaning the island of Bombay. The next material Regulation is Regn. 17, and one has to determine whether that Regulation applies only to our moffusil or to the moffusil and the island of Bombay. It is headed:

“A regulation for the territories subordinate to Bombay, prescribing rules for the assessment and realization of the land revenue and so forth.”

8. The expression “territories subordinate to Bombay” taken by itself would, I think, include the “Island.” The Regulation deals with zillahs, but that expression might include the island Court as in Regn. 2. In Regn. 17, Ch. 9, S. 36, it is provided:

“Whenever land has been enjoyed without payment of public revenue, for more than 60 years, in succession, by any person, his heirs or others deriving right from him, such enjoyment shall be considered as sufficient title to the exemption.”

9. The question is whether that provision applies to the island of Bombay. Now there seems to be nothing in Regn. 17 which expressly excludes the island of Bombay, and, as I ‘have said the title by itself would include the island. But, on the other hand, there is noting in the Regulation which expressly deals with the island, and when one comes to the appendices they do not seem to cover the island. Appendix A contains a list of tenures recognized by the custom of the country. All the tenures referred to there are moffusil tenures, and not tenures applicable to the city of Bombay. Then the form of notice in Appendix B seems appropriate to moffusil, and not to the city of Bombay. In Appendix C there is a list of officers who, under former Governments, had power to confer grants exempting lands wholly or partially from the payment of public revenue and the list does not include the King of Portugal from whom the island of Bombay was acquired. There is, therefore, some internal evidence to show that the Regulation does not include the island of Bombay, but I am disposed to think that there is not sufficient evidence in the Regulation itself to exclude the island of Bombay. We next come to Regn. 19, and, as I have said, all these Regulations, which were passed on the same day, must be read together. This is intituled:

“A regulation for the Presidency prescribing rules for the assessment and collection of the land revenue.”

10. It is, I think, clear that throughout that Regulation “the Presidency” means island of Bombay. S. 1 provides that there shall be a Collector of Bombay for the purpose of collecting the land revenue of the Presidency. That clearly refers to the Collector of the city of Bombay. Then the Regulation provides how the revenue is to be collected and so forth. In S. 3 it is provided:

“The land revenue of the Presidency shall be assessed and levied by the Collector and his assistants, according to the principles laid down in Regulation 17, A.D 1827, S. 3, the three first clauses of S. 4, S. 5 and Clause 1 of S. 6.”

11. Now it is obvious that provision is wholly inconsistent with the theory that Regn. 17 itself applies to the island of Bombay. If the Regulation applied, there would be no necessity, to provide that the Collector was to levy assessment on the principles laid down in Regn. 17. Clause 2 of S. 4 of Regn. 17, which is one of those incorporated in Regn. 19, provides:

“When there is a right on the part of the occupant in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit.”

12. Regulation 19 contains no provision such as is contained in Regn. 17 exempting land from liability to assessment if such exemption has been enjoyed for 60 years. Mr. Vakeel has argued that we must read into Regn. 19 such a provision because that is one of the methods of proving that the land is held in limitation of the right of Government. But, in my opinion, that argument in untenable. I think that all that Regn. 19 provides is that the assessment is to be levied on the principles laid down in (amongst other sections) S. 4 of Regn. 17, and that it does not incorporate the method of proving the right of the owner of the land to hold in limitation of the right of Government. It seems to me, reading those two Regulations together, that Regn. 17 must be limited to the moffusil districts and that Regn. 19 deals with land within the island of Bombay, and that as Regn. 19 contains no provision that sixty years' enjoyment of the land free from the payment of tax is to be sufficient evidence of exemption from liability, we cannot read such a provision into the Regulation. The subsequent history of the matter supports that view. The material provisions of Regn. 17 were repealed by Act 7 of 1863 which contains a fresh provision as to limitation in respect of land which had been held free from assessment for more than sixty years' although that Act was limited to land held on recognized tenure, and there is no evidence that the land in question in this case is held as on any recognized tenure. Then the rest of Regn. 17 was repealed by the Land Revenue Code of 1879 which deals with moffusil lands, and Regn. 19 was repealed by the Bombay City Land Revenue Act of 1876, which deals only with land within the City of Bombay. So that Government apparently treated Regn. 17 as applying to moffusil and, and Regn. 19 as applying to the city of Bombay. We are not of course bound by the view which Government took as to the effect of the Regulations, but, for the reasons I have given, I think that the view Government took is the right view and that Regn. 17 does not apply to land in the city of Bombay. On that ground, I think, we must differ from the judgment of the learned Revenue Judge.

13. The Advocate-General took a second point which does not arise having regard to the view I take of Regn. 17, but I will notice it. That point is that S. 36 of Regn. 17 only provides that whenever land has been enjoyed without payment of public revenue for more than sixty years in succession such enjoyment shall be considered as sufficient title to the exemption, and does not provide that the owner of such land shall be entitled to hold it free from liability to assessment. So that the section deals only with the method of proof of exemption. Consequently the Advocate-General says that when that Regulation was repealed it became of no use to the plaintiff. The plaintiff's answer is that repeal of a statute never affects rights acquired under it. That, no doubt, is so, and I should agree with the contention of the plaintiff on that point if the effect of the Regulation was to provide that sixty years' enjoyment was to confer an indefeasible right to the land free from the liability to tax. But I am disposed to think that the Advocate-General is right when he says that these provisions merely deal with evidence necessary to prove exemption, and that as soon as the Regulation containing those provisions was repealed the plaintiff ceased to be at liberty to rely on that particular privilege. However, it is not necessary definitely to decide that point because I think the true view is that Regn. 17 does not apply to land in the city of Bombay. For these reasons the appeal is allowed and the suit is dismissed with costs.

14. N.J Wadia, J.:— I agree. The plaintiff's claim to exemption from liability to assessment is based solely on the ground that at least from 1813 onwards the land has never been assessed. The fact that it has not been so assessed is not disputed. It is well established that the ruling power in India has always been entitled to a share of the produce of land in the shape of land revenue and this has not been disputed by the plaintiff. The plaintiff's contention however is two-fold. It is argued, in the first place, that the right to levy assessment is a prerogative of the Sovereign and that when Bombay was transferred by the Crown to the East India Company by the Charter of 1868 this prerogative right of the Sovereign did not and could not pass to the company. It is also argued in the alternative that even if it is held that this prerogative right passed to the Company, the city of Bombay was governed by the English law and that the right of the Company to assess had been lost through its not having been exercised for over sixty years. I do not think that there is any force in either contention. According to the Charter by which the town and island of Bombay were transferred to the Company, the King transferred to the London Company.

“all the rights, profits, territories and appurtenances there of whatsoever, and all singular royalties, revenues, rents, customs, castles, forts, buildings, fortifications, privileges, franchises, pre-eminences and hereditaments whatsoever, etc., in as large a manner as the Crown of England enjoyed or ought to enjoy them under the grant of the King of Portugal in the treaty of 1661 and not further or otherwise.”

15. Article 9 of the Convenant of Aungier also provided that

“all royalties, rights, privilages, immunities, which did formerly belong to the Crown of Portugal of Foros and royal rents of what mature or condition soever, they shall be saved as of right they belong to the Honourable Company.”

16. It would appear therefore that the fall right of sovereignty over the town and island of Bombay had been transferred to the Company including the royal prerogative to a share in the produce of the land. No satisfactory authority has been cited to us to show that the right of the ruling power in India to assess land can be lost by mere non-user. The analogy from the English law as regards acquisition of rights against the Crown by prescription would not apply in India, and in any case English statutes passed after 1668, the date of the Charter to the Company, would not apply to Bombay. The case for the plaintiff must therefore be decided by the Indian law applicable to the Presidency. The plaintiff relies in that case on Regn. 17 of 1827 which, it is contended, applies to the city of Bombay also. But the language of that Regulation leaves in my mind no doubt that it was not intended to apply to the city of Bombay, and that the legislature did not intend it to apply appears from the fact that on the very date on which that Regulation was passed another Regn., 19 of 1827, was enacted to provide specially for the City of Bombay. There is nothing in any of the sections of Regn. 17 which deals specifically with the city of Bombay, and the Appendix to that Regulation appears to make it clear that there was no intention to apply the Regulation to the city of Bombay. It has been argued that even if Regn. 17 as a whole does not apply to the city of Bombay, certain sections of it have been made applicable to the city by the third section of regulation 19 of 1827, which provides that the land revenue of the city shall be assessed, and levied according to the principles laid down under S. 3, the three first clauses of S. 4, S. 5 and the first clause of S. 6 of Regn. 17. It is further argued that the provisions of Ss. 35 and 36 of Regn. 17 must by implication be held to be also incorporated in Regn. 19 of 1827 as they lay down the principles on which the revenue is to be assessed. In the first place Ss. 35 and 36 do not, in my opinion, deal with the principles on which the land revenue is to be assessed.

17. They deal only with the methods by which parties may prove their claim to exemption.

18. If it had been the intention of the legislature that Ss. 35 and 36 should apply to the city of Bombay also, those sections would have been expressly referred to in S. 3 of Regn. 19. Even if Regn. 17 were held to apply to the city of Bombay Ss. 35 and 36 would not, in my opinion, help the plaintiff. The only part of S. 35 which the plaintiff could avail herself of is the second clause, but the benefit of that clause has been restricted to lands held under some tenure recognized by the custom of the country. It has been admitted that the plaintiff does not hold her land under any of, the recognized tenures under which land in the city of Bombay is held. It may also be mentioned that Appendix A to Regn. 17, which specifies the tenures which are to be considered as recognized by the custom of the country, does not include any of the Bombay tenures. The benefit of S. 36 of Regn. 17 could have been claimed by the plaintiff only so long as that Regulation was in force. That Regulation was repealed by Bombay Act 7 of 1863 and the plaintiff's case must be governed by the present law dealing with Bombay city, viz., the Bombay City Land Revenue Act of 1876 which has no provision corresponding to S. 36 of Regn. 17 of 1827. The fact that Regn. 17 of 1827 was repealed by the Bombay Land Revenue Code 5 of 1879 and not by the Bombay City Land Revenue Act of 1876, though not in itself sufficient to prove conclusively that Regn. 17 of 1827 did not apply to Bombay city, at least, lends strong corroboration to the view taken by us that Regn. 17 of 1827 did not apply to Bombay city. The plaintiff has set up a claim in derogation of the right of the Sovereign power to assess lands, and strict proof of such claim is necessary. She has failed to discharge this burden. The appeal filed must therefore in my opinion, be allowed.

K.S

19. Appeal allowed.