The judgment of the Court was as follows:—

The plaintiff appeals against the judgment and decree of the learned District Judge of 2-Parganâs dated June 6, 1935. The learned Subordinate Judge, by his judgment and decree dated January 30, 1935, had decreed his claim, but the learned District Judge dismissed his suit entirely.

The facts are not in controversy, but the question raised is, we believe, one of first impression, and is of general interest so far as the lotdârs of the Sundarbans are concerned. The question is whether a lotdâr, who is holding under a grant on the terms herein below noted, is entitled to get abatement of the amount payable by him to Government under his engagement on account of some portion of his grant being diluviated, under the provisions of s. 52 of the Bengal Tenancy Act, 1885.

In the year 1854, the Sundarbans Commissioner, acting on behalf of the Government, granted to one Bazlar Rahman a large block of waste land under the Waste Lands Rules of 1853. This grant is known by the name of Abad Dwarik Jangal, being Sundarban lot No. 106 of Captain Hodge's map and touzi No. 1419 of the Collectorate of Twenty-four Parganâs. The area was then estimated to be 20,900 bighâs. The pâttâ which was executed on September 7, 1860, was in the standard form printed at pp. 93 and 94 of the Revenue History of the Sundarbans by Mr. Pargiter. One-fourth of the area was to be forever free from assessment, the remaining three-fourths to remain “free of revenue” for the first twenty years, from the twenty-first to the thirtieth year assessment was to be at the rate of half an anna for every standard bighâ, from the thirty-first to the fortieth year at the rate of one anna per bighâ, from the forty-first to the fiftieth year at the rate of one anna and a half per bighâ, and from the fifty-first to the ninety-ninth year at the full rate of two annas per bighâ. Clause 3 of the pâttâ provided that between the twentieth and the thirtieth year either the Government or the grantee could have a survey and measurement made with a view to ascertain the exact area of the lands contained in the grant and the revenue thereafter was to be fixed on the said measurement at the rates mentioned above. The fourth clause of the pâttâ is in these terms:—

That after the ninety-ninth year, the grant shall he liable to survey and re-settlement and to such moderate assessment as may seem proper to the Government of the day, the proprietary right in the grant and the right of engagement with the Government remaining to the grantee, his heirs, executors or assigns under the conditions generally applicable to owners of estates not permanently settled, and that revenue equal to the amount annually paid from the fifty-first to the ninety-ninth year shall be paid annually by the grantee, his heirs, executors or assigns until such survey and re-settlement or re-assessment as described above be effected.

The next clause made it obligatory on the grantee to clear and render fit for cultivation within stated periods certain proportions of the grant under the penalty of the grant being resumed on failure to do so. It is only necessary for us to state that one half of the area was to be cleared within the first twenty years, and three-fourths of the area (i.e, the whole of the area liable to assessment) was to be cleared within thirty years from the date of the grant. The sixth clause deals with the manner of paying “the revenue,” and provides that it shall be recoverable by the Government by the process that now is or hereafter may be in force for recovery of arrears of Government revenue. An analysis of the pâttâ establishes the following:—

(1) the Government demand is fixed on the basis of area;

(2) the area was, at the date of the pâttâ, stated only by guess; it was only a rough estimate, as it must be, as the grant was then a forest area;

(3) the grant was to be surveyed and measured between the twentieth and the thirtieth year, when it was expected that the forest would be cleared substantially so as to render accurate measurement possible;

(4) there was no provision for re-survey and remeasurement at any other period within the period of the grant which was to last for ninety-nine years, but after the ninety-ninth year the grant was liable to be re-surveyed and re-measured with a view to resettlement at a new rate;

(5) the grant was a proprietary grant, the grantee being entitled to have a re-settlement under conditions applicable to owners of temporarily-settled estates; and

(6) the Government demand is described as revenue and made recoverable by the same process by which revenue can be recovered.

These characteristics, we may state at once, in our judgment, militate against the view that the relationship between the Government and the grantee was that of landlord and tenant and that the Government demand, though described as “revenue”, was really “rent.” If the jural relationship is that of landlord and tenant and consequently the Government demand is rent, there can be no doubt (subject, however, to the question about the applicability and effect of the Crown Grants Act, 1895, which we shall consider later on) that the plaintiff would be entitled to get abatement and to recover the excess amount paid by him under protest. If, however, what is payable is revenue, the suit is a misconceived one, the relief of the plaintiff lying not in the civil Court but in the hands of the revenue authorities.

The interest of Bazlar Rahman devolved upon the Agra Bank, Ltd., from whom it has passed to the plaintiff. On September 9, 1884, the Agra Bank Ltd., applied for survey and measurement of the lot in terms of cl. 3 of the pâttâ. That prayer was allowed and the lot was measured. The area was found to be 11,882 bighâs. A revised pâttâ and kabuliyat were recommended and sanctioned by the Board of Revenue on May 10, 1886, and they were executed on September 1, 1887. The terms of the pâttâ were the same as of the original pâttâ of September 7, 1860, with the exception that cl. 3, the clause that gave the right to the grantee and the Government to survey and measure, was (as was apposite in the circumstances) dropped out. The Government demand on the progressive scale in accordance with the terms of the original pâttâ was calculated on the ascertained area of 11,882 bighâs and embodied in a dowl which was executed by the bank and attached to the kabuliyat. At the cadastral survey under ch. X of the Bengal Tenancy Act in the year 1924–1925, the area of the lot was found to be less than 11,882 bighâs by 358 bighâs 9 cottâs 13 chhitaks. The plaintiff claims abatement for this deficit area at the rate of 2 annas per bighâ.

As we have stated above, if the relationship between the Government and the plaintiff be that of landlord and tenant, the plaintiff is entitled to succeed, for the Government demand would be “rent.” If, however, it is “revenue” the claim is not sustainable in a civil Court.

Mr. Roy Chowdhury for the plaintiff appellant contends that as the grant was conferred by a pâttâ for a fixed term or period, the word “revenue” used in it must be taken to have been used in a loose sense only. The consideration on which he most strongly relies is that the Secretary of State for India is the proprietor of the Sundarban area and a grant by him to a person must, as a matter of law, confer only tenant right on the grantee. He supports his contention by reference to that part of cl. 1 of s. 13 of Regulation III of 1828 which states:—.

The uninhabited tract known by the name of the Sundarbans has ever been, and is hereby declared still to be, the property of the State

and to the following passage at p. 51 of the first edition of Mr. Sarada Charan Mitra's Tagore Law Lectures of 1895:—

The settlement of land-revenue in temporarily-settled estates and khâa mehâls takes place periodical. The Government is a landlord within the meaning of the word as used in the Bengal Tenancy Act, and though the amount payable directly to Government in the khâs mehâls is rent, the paramount title of the State carrying with it the right to receive revenue and the proprietary right to receive rent uniting in the Government, the proprietary interest merges in the paramount title, and rent in such cases is called revenue.

It has further been broadly contended for by Mr. Roy Chowdhury that only the settlement-holders under the Government under the Bengal Permanent Settlement Regulation, 1793, are or have been made “proprietors,” and that consequently their relationship with the Government is not of landlord and tenant, but that all other settlement-holders holding directly under the Government are “tenants,” that is, tenure-holders or râiyats. He finally refers to the decision of the Judicial Committee in the case of Khetramoni Dasi v. Jiban Krishna Kundu and says that decision establishes that a Sundarban lotdâr, holding under the Government on terms exactly similar to the terms of the pâttâ we have before us, is a tenure-holder. It is necessary to examine these contentions a little more in detail.

In the middle of the eighteenth century, the Moghul Sovereign at Delhi was only a titular one. The East India Company were the virtual Sovereigns of Bengal. On August 12, 1765, the Company obtained from Shah Alam, the titular Emperor of Delhi, the Dewâni of Bengal, Bihar and Orissa on an agreement to pay to the latter 26 lakhs of rupees as revenue, for the said provinces. Having obtained the Dewâni from the Mahomedan ruler, they thought it prudent to follow the Mahomedan system. From the Mahomedan financial system, they claimed the inheritance of a right to seize upon an unduly large portion of the gross produce as khirâj or land revenue, and coupled the same with their own doctrine of the proprietary right of the Sovereign by reason of conquest. The seven years which followed the grant of the Dewâni were years of chaos, resulting from double Government, the Dewâni of the English and the Nizâmat of the Nawab of Murshidabad, though at this period attempts were made to gather information and to establish a machinery for collecting revenue and making settlements: Tagore Law Lecture of 1895, pp. 29, 30; Field's Landholding and Relation of Landlord and Tenant in Various Countries of the World, ch. XX. In 1772, the Company made settlements of land revenue with the zemindârs of Bengal for a period of five years, and the assessment was adjusted yearly, till the Decennial Settlement of 1790, which was made permanent in 1793. The Decennial Settlements (confining ourselves to Jessore, 24-Parganâs and Bakarganj) were made with the zemindârs of what may be roughly said to be the culturable area in the said districts or of such areas as, though not under cultivation at the moment, were in the nature of patit and could be made culturable easily and with little labour and capital, the impenetrable forest bordering on the sea on the Ganjetic delta known as the Sundarbans being excluded from these settlements. Just before the Permanent Settlement a controversy was carried on with great keenness between Lord Cornwallis and Mr. Shore as to whether the zemindârs with, whom the Decennial Settlements were to be concluded by the Government were to be considered as fit for the responsible rights of property and whether Permanent Settlements were to be made with them. The Permanent Settlement Regulation, however, was passed in spite of Mr. Shore's strong protest, and, though in form, it recognised the zemindârs as proprietors of the soil, in reality it made the zemindârs, who were formerly farmers of revenue, proprietors. In other words, in effect the Government purported to divest itself of the proprietary right in the soil in favour of the persons with whom the Permanent Settlements were concluded. The Decennial Settlements were made permanent with some degree of haste, with the result that the boundary lines on the forest side of the permanently-settled estates bordering on the Sundarbans were not fixed or defined with any degree of certainty. In fact, in many permanently-settled estates in Jessore no boundaries were given at all, and only at a later period the zemindârs were asked to supply boundaries, which they did by filing with the Collector papers called hâd-bandi papers. The documents were mostly unreliable and inaccurate, larger areas than those actually settled with them being in almost all cases included within the boundaries, as the zemindârs had by that time extended cultivation by encroaching upon the forest area lying on the borders of their estates. As cultivation extended, some of the hâd-bandi papers were even tampered with in the Collector's office in collusion with his âmlâs.

From about the year 1770, attempts were made to encourage reclamation of some portion of the forest area within the 2k-Parganâs. From 1770 to 1773 Mr. Claude Russell, the Collector-General, granted leases of lands to individuals on certain terms. These grants were known as patitâbâdi tâluks, but a larger scheme to bring under cultivation the Sundarban forest was embarked upon by Mr. Henckell in 1783–1788. His object was of a two-fold nature: to increase the Government revenue, and to break up the lurches of dacoits and robbers in the forest area. Mr. Henckell made between 1784 to 1788 one hundred and forty-four grants known by the name of Henckell's tâluks, but most of these grantees could not make much out of the grants, because the zemindârs obstructed them and dispossessed them of areas reclaimed by them, on the claim that the grounds cleared were parts of their permanently-settled estates in which they had proprietary rights. The result was that most of the grants made by Mr. Henckell were surrendered and a few only of Henckell's tâluks survived. The undefined boundaries of the permanently-settled estates bordering on the Sundarban created great difficulties in the way of the Government making settlements of the Sundarban forest, no part of which had in fact been included in estates permanently settled.

To overcome these difficulties it was necessary to determine what was exactly included in permanently-settled estates and to prevent the zemindârs from enlarging their claims as cultivation extended in the forest area. It was also essential to maintain the grantees from the Government of the forest area in possession of what they had reclaimed. The Sundarban Commission was established in 1816 for fiscal management of the Sundarban, and from 1817 regulations were passed for facilitating grants of the Sundarban area. Regulation XXIII of 1817 was the first of these regulations. In its preamble the Moghul theory that the State was entitled to the khirâj (a certain proportion of the produce of every bighâ of land) was asserted, and it was further asserted that the Sundarban area had not been included in any permanently-settled estate. This Regulation was repealed and Regulation II of 1819 was passed. By 1825 by Regulation IX of 1825 the settlement rules of Regulation VII of 1822 were extended to the Sundarban area. These regulations were insufficient to meet the claims of the zemindârs, and the defects and difficulties up to 1828 will be found summarised in ch. IV, s. 60 at p. 22 of Mr. Pargiter's “Revenue History of the Sundarbans from 1765 to 1870.” To put a stop to the claims of the zemindârs to portions of the forest area which may later on be cleared by future grantees from the Government, s. 13 of Regulation III of 1828 was enacted. The material part of the preamble of this Regulation declares that—

Commissioners have from time to time been appointed under orders of Government to maintain and enforce the public rights in different districts, in which extensive tracts of country unowned and unoccupied at the time of the perpetual settlement are now liable to assessment, or being still waste belong to the State.

Section 13 enacts the following provisions which are of importance to us:—

First—the uninhabited tract known by the name of the Sundarbans has ever been, and is hereby declared still to be, the property of the State: the same not having been alienated or assigned to zemindârs………. in the arrangements of the perpetual settlement; it shall therefore be competent to the Governor General in Council to make as heretofore, grants, assignments and leases of any part of the said Sundarbans,…………………….

All parties to whom such grants, leases or assignments shall have been made or to whom they may hereafter be made, shall be entitled to hold or to take possession of any tract of Sundarban Jungle so granted or assigned without question or opposition, and all public officers shall aid and assist the same:

The zemindârs were given the right to contest the validity of the title or the right of possession of any such grantee or lessee, but if it be proved that at the time of the grant, assignment or lease the area so granted was within the limits of the unoccupied jungle their suits were to be dismissed.

Such being the history behind this piece of legislation and such being the object of the said Regulation, viz., to maintain and enforce public rights in the area which was dense forest at the time of the Permanent Settlement, it follows that the right of property in the Sundarbans claimed and declared to be vested in the State by s. 13 is not of the same category as the right of property vested in a private person which may in a sense be regarded as a derivative right. In our opinion, the right of property so asserted in the State in the said section is the right of property in the Sovereign by reason of conquest, which was asserted, as we have noticed above, just after the grant of the Dewâni. Such proprietary right in the Government was not of the same class as its property right in what are technically known as khâs mellâis, where its position is that of a private proprietor. By the force of s. 13 of Regulation III of 1828 alone, the State does not, therefore, become a “landlord” as defined in the Bengal Tenancy Act, when it grants to a person a tract of the Sundarban forest. If the terms of the actual grant or assignment make it a landlord, that is another matter, for the State can also grant leases of its property in such a capacity. The grant in question in the present suit has been included in Register “A” maintained under the Land Registration Act as touzi No. 1419. It is accordingly an “estate” as defined in s. 3, sub-s. (4) of the Bengal Tenancy Act and the plaintiff is its proprietor as defined in sub-s. 11 of the said section. This is in accord with the terms of the pâttâ which has, in terms, conferred a “proprietary right in the grant” on the grantee, his heirs, executors, and assigns, and the right to engage with Government on conditions applicable to owners of temporarily-settled estates. The passage cited by Mr. Roy Chowdhury from p. 51 of the Tagore Law Lecture of 1895 is quite correct with regard to khâs mehâls, but we disagree if it is intended to mean that the Government is the landlord as defined in the Bengal Tenancy Act in respect of all temporarily-settled estates, the lots in the Sundarbans granted under the Waste Land Rules of 1853 being undoubtedly temporarily-settled estates. We accordingly overrule the main contentions of Mr. Roy Chowdhury.

The case cited by Mr. Roy Chowdhury, Khetramoni Dasi v. Jiban Krishna Kundu is no authority for the proposition contended for. The case does not decide that a Sundarban lotdâr holding land under the Waste Land Rules of 1853 is a tenure-holder under the Government. In that case the appellant had a grant of a Sundarban lot from the Government. He had granted a permanent mokarrâri tenure to the respondent in 1890, the terms of which precluded the respondent from claiming abatement of rent for diluvion. A portion of the lands of this tenancy diluviated, and the respondent claimed reduction of rent under s. 52(1)(b) of the Bengal Tenancy Act. The appellant maintained that the respondent was bound by his contract in view of s. 179 of the Bengal Tenancy Act. The only question that was decided was whether the land of the tenancy which the respondent held under the appellant was within “a permanently-settled area”. This Court on review, and also the Judicial Committee of the Privy Council, held that the lands being in the Sundarban were not in a permanently settled area, and so the contract between the parties did not affect the right of the respondent to have abatement of rent under s. 52(1)(b) of the Bengal Tenancy Act. No doubt the appellant admitted in his written statement that he was a permanent tenure-holder under the Government, but the question as to whether he was a tenure-holder or a proprietor was neither raised in issue nor decided nor at all relevant to the case. The Judicial Committee held that the terms of the grant made to the appellant were inconsistent with the terms of the Permanent Settlement of 1793 and that the lands could not be said to be in a permanently settled area. That case therefore has no material bearing.

The learned District Judge has also held that even if it be assumed that the plaintiff is a tenure-holder, the Crown Grants Act, 1895, precludes the plaintiff from getting abatement. In the view we have taken of the status of the plaintiff, it is not necessary to decide the point. The Crown Grants Act, 1895, applies to grants by Government of Sundarban lands. The scope of the Act is not limited to affecting the provisions of the Transfer of Property Act only. The Crown has unfettered discretion to impose any condition, limitation, or restriction in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law. These matters have been discussed in detail in Jnanendra Nath Nanda v. Jadu Nath Banerji. The grant, assuming it to be a lease, is for a term of ninety-nine years. It gives the grantee the right to have the lands measured once and only once, between the twentieth and the thirtieth year of the grant, and the adjustment of the Government demand on the results of the said measurement was to be the only adjustment during the currency of the term of ninety-nine years. This view of the terms of the lease, assuming it to be a lease, militates against the right conferred by s. 52(1)(b) of the Bengal Tenancy Act, which section must consequently give way in view of the provisions of the Crown Grants Act. We, accordingly, dismiss the appeal with costs.

Appeal dismissed.

P.K.D