The Judgment of the Court was as follows:—

Richardson, J.:— In this case, the revenue authorities assessed to revenue certain lands within the ambit of the estate of which the Respondents are the proprietors. The Respondents have succeeded below in a suit brought by them to contest the validity of the assessment and to recover possession of the lands and an appeal has been preferred on behalf of the Secretary of State.

The lands in question were at the time of the thak and revenue surveys of 1859 and 1860 the bed of a done or river, known in one part as the Lakshipura and in other parts apparently by the names of the villages by or through which it flowed. The river was part of a not work of rivers and channels connected ultimately with the main stream of the Ganges. Whatever else may be said about this river, it is a fundamental fact in the case that it never was a public navigable river. The fact is asserted in the plaint and is not denied in the written statement. There is no express issue on the subject and the Subordinate Judge finds on the evidence that the done was “small and shallow.” The evidence is that it was in the habit of drying up during the hot season.

The river owing to natural causes silted up and the former bed became suitable for cultivation. According to the evidence the change occurred sometime in the eighties of the last century. By proceedings under Act IX of 1847 commenced in 1906, these lands on the site of the river were assessed to revenue, and the assessment was confirmed by an order of the Board of Revenue, dated the 25th February 1913. The revenue officers took possession of the lands on the 1st April 1913, but the circumstances under which they did so, are not before us. The present suit was instituted on the 17th April 1914.

The learned Subordinate Judge found on the first issue framed by him that the suit wes not barred by limitation, on the second issue that the lands were assessed to revenue at the time of the permanent settlement and on the third issue that this revenue authorities had no jurisdiction ??? proceed under Act IX of 1847. By ??? decree he declared that the assessment was invalid and restored the Respondent to possession.

On the second issue, the important issue on the merits, whether the lands were assessed to revenue at the time of the permanent settlement, the Respondent examined a number of witnesses of advanced age who all speak to the ??? coming first into existence a few year before the thak and revenue surveys. The Subordinate Judge has accepted the evidence of these witnesses, and if it is accepted, it is conceded that the appeal must far. The evidence would go some length at leas to show that the lands were dry at the permanent settlement and if so they ??? have been assessed to revenue and cannot now be re-assessed.

Two answers are made on behalf of the Appellant, the Secretary of State. The first is that the Respondents had no right to make the case that the lands were ??? at the permanent settlement and no right to give evidence in support of that case, shall deal with that when I come to the question of limitation.

The second answer is that the evidence is unreliable. It does seem that the locality must be a healthy one to produce so many old men with memories so clear but their account of the matter is by ??? means impossible or improbable.

But if this body of evidence be rejected and if it be assumed that this river existed at the permanent settlement the result ??? the same.

On that hypothesis it is argued for the Appellant that the burden lies on the Respondents to show that the lands were included within the limits of the estate permanently settled with the Respondent predecessor. That may be so, but ??? burden is discharged or shifted as soon as it is shown or admitted that this river, which is within the ambit of the estate, was not a navigable river.

We were referred to Maharaja Jagadindra v. Secretary of State and to some of the cases in which it has been followed and applied. But in all those cases the subject of dispute was the bed or the former bed of a public navigable river. The question is always one of fact and the law has to be applied to the facts of each case as it arises [cf. Haridas v. Secretary of State ]. A public navigable river is opposed to a private non-navigable river. The distinction represents in more precise language the distinction which the Regulations draw between the principal rivers or rivers spoken of in association with the sea on the one hand and the small and shallow rivers on the other, the test being whether a river is navigable for boats at all seasons of the year. [Secretary of State v. Bijoy Chand Mahaiab ]. The question of size may not be without importance but speaking generally the presumption in the one case is that the bed belongs to the public or is public domain and in the other that the bed belongs to a private proprietor. In the absence of any other evidence to the contrary than that afforded by a that or survey map, these natural presumptions may be sufficient to displace the contrary evidence of the map. In the present case the thak and survey maps support the prima facie presumption that this river with its bed was included in the estate permanently settled which now belongs to the Respondents and the burden of proving the contrary rests on the Appellant. As apart from the map, there is no evidence one way or the other, the Appellant fails.

This view is supported by the language of the fourth clause of sec. 4 of Reg. XI of 1825 which speaks of “small and shallow rivers, the beds of which with the jalkar right of fishery may have been heretofore recognised as the property of individuals.” It is also supported by the cases cited in Secretary of State for India v. Bijoy Ghand Mahatab as to the proprietary right in the beds of non-navigable rivers which run between two estates [Secretary of State for India v. Bijoy Ghand Mahatab ]. But then it is said that even if, in the language of Beg. II of 1819, this river was included within the limits of the estate for which a permanent settlement was concluded, the revenue authorities are now entitled to assess revenue on the dry bed. The contrary, however, has been decided by the Privy Council with reference to the provisions of Keg. II of 1819 and those of Act IX of 1847 [Secretary of State v. Fahamidunnissa , Maharaja Jagadindra v. Secretary of State and see Secretary of State for India v. Bijoy Chand Mahatab ]. Prom the argument addressed to us it seems to be thought that there is something in the fourth clause of sec. 4 of Reg. XI of 1825 read with the second proviso to the first clause, which justified the assessment made in the present case.

The first clause of the section applies to land “gained” by accession from a river or the sea, the word “gained” being that used in the second clause of sec. 3 of Reg. II of 1819 and interpreted in the decisions of the Privy Council. Such land is to be considered an increment to the estate to which it is annexed subject to two provisos, firstly, that the proprietor is not to have a larger interest in such land than he has in the parent estate, and secondly, that the land is not to be exempted from “any assessment for the public revenue to which it’ may be liable under the provisions of Reg. II of 1819 or of any other Regulation in force.”

The fourth clause enacts that sand banks or churs thrown up in small and Bhallow rivers “shall as hitherto belong to the proprietor of the bed of the river, subject to the provisions stated in the first clause of the present section.”

There is no dispute that the first proviso is operative both in cases which arise under the first clause and in cases which arise under the fourth clause. As to the second proviso it neither adds to nor subtracts from the rights and liabilities of the proprietor under preceding Regulations, including II of 1819. It introduces, therefore, no new element which takes the case out of the Privy Council decisions.

In Fahamidunnissa's case , the question arose as to lands dry in 1793 which afterwards became covered with water and then again reformed. If, as would appear from the fact stated in the report, the lands had been diluviated by the action of navigable rivers, the case was, if anything, a stronger one than the present because the lands had, temporarily at least during the period of submergence, become a part of the public domain. The lands in the present case, whether or not they were covered with flowing water at the permanent settlement, were never a part of the public domain.

It is abundantly clear, therefore, that neither Reg. II of 1819 nor Act IX of 1817 empowers the revenue authorities to assess the lands now in question. If they were river bed at the permanent settlement, they were none the less in the circumstances lands presumably within the estate settled. That being so, they are in no respect different from other waste land included in the estate. As the Privy Council said in Lopez v. Muidw Mohun . “The site is the property.” Whatever changes may have occurred from natural or artificial causes, however the land may have improved in value Government are not entitled to addition a revenue for such lands [Bala Surya Prashad v. Secretary of State ].

There remains the question of limitation. In the Court below Art. 11 of the present Limitation Act seems to have been applied. It was held that with the deduction allowed by sec. 15(2) of the Act the suit was in time. It was argued before us that the procedure applicable to the case was that provided by secs. 22, 23 and 24 of Reg. II of 1819 as modified by sec. 10 of Reg. III of 1828 and that the suit was barred by limitation under sec. 24 of the former Regulation. If that be so, sec. 15 of the Limitation Act is inapplicable [Kalimuddin v. Sahiluddiu (7)].

It was further argued on the same basis that the Respondents were not at liberty to tender evidence that these lands were dry lands at the permanent settlement (Reg. III of 1828, sec. 10, third clause).

The effect of Act IX of 1847 on the procedure provided by the Regulation cited was considered by the Privy Council in Fahamidunnissa's case . Their Lordships held (p. 47) that Act IX of 1847 only dealt with machinery and (p. 51) that it only applied to lands “already liable to be assessed under existing legislation.” They further held, on the terms of the first section, that it was only in relation to such lands “that the previous Regulations are to cease to have effect.”

In my opinion, therefore, there is considerable force in the argument that in cases where the revenue authorities properly take action under Act IX of 1847, the procedure provided by the Regulations is swept away by sec. 1 of the Act, but where the action taken is unauthorised and invalid, the statutory remedy is still the remedy which the Regulations provide.

It is unnecessary, however, in the present case to express a final opinion on this, topic.

As regards the pleadings, even if the question whether the lands were dry at the permanent settlement is anything more than a question of the evidence admissible under the general issue whether the lands are liable to assessment, the result in the view, I take, is the same whether the lands were dry at the permanent settlement or were covered with water.

As to limitation, under sec. 24 of Reg. II …. “persons whose lands may be assessed” are entitled to sue “any time …. within one year from the date of their being informed of the Board's decision.”

The Court below was not asked to apply this provision and as Greaves, J., pointed out during the argument, there is no evidence on the record showing the precise date on which the Respondents were informed of the Board's decision. It is stated in the plaint that the local officers took possession of the estate on the 1st April 1913, but there is no admission by the Respondents that, the Board's decision was communicated to them before that date. I am unable to say therefore that supposing sec. 24 applies the suit is out of time.

In my opinion the appeal should be dismissed with costs.

Greaves, J.:— I agree.

N.G