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Judgment
P.K. Goswami, C.J.—This second appeal is by the Plaintiffs against the decree of the learned Subordinate Judge, Silchar reversing that earlier decision of the learned Munsiff.
One Surendra Chandra Das Gupta the original Plaintiff in the suit, was the owner and possessor of the land in Dag No. 180 appertaining to second R.S. Patta No. 71 of village Saidpur Part II Pargana Leverputa, District Cachar. The river Surma was originally flowing contiguous West of the land. The river gradually and imperceptibly receded towards west and the Schedule land gradually and imperceptibly accreted to the aforesaid dag, of which the Plaintiff was admittedly the owner in possession. Both the Plaintiff and the Defendant No. 2 applied for settlement of the schedule land and the Collector settled the land in Settlement case No. 177 of 1957-58 in favour of the Defendant No. 2 on 8th October, 1958. The Plaintiff thus brought this suit for declaration that the accreted schedule land forms part and parcel of his land in Dag No. 180 and that he is the settlement holder of the accreted land. He also prayed for a decree for confirmation of possession and in case he is out of possession, for khas possession of the land. He also prayed for a direction to the Defendant No. 1 for assessing revenue of the suit land.
The State of Assam (Defendant No. 1) resisted the Plaintiff''s claim. It averred in the written statement that the disputed land was lying khas from a very long time and cannot be considered as part and parcel of Dag No. 180. It further stated that both the Plaintiff and the Defendant No. 2 applied for settlement and "as the Plaintiff was found to hold land measuring more than 150 bighas his prayer was rejected and the settlement of the land in question i.e. dag 833 was granted in favour of Shri Manindra Kumar Pal by the Deputy Commissioner''s order dated 03-05-1958 in Settlement Case No. 177 of 1957-58". (Paragraph 12(2) of the written statement). The State also denied that the land was gained by alluvion. The Defendant No. 2 also similarly denied the Plaintiff''s claim.
The trial court held that the "suit land is an accreted land that has been thrown up within 4/5 years by the gradual recision of river Surma according to Government patwari." It also found that the land of the Plaintiff is contiguous east of the disputed land. The court therefore held that u/s 34(b) of the Assam Land and Revenue Regulation the Plaintiff is entitled to the settlement of the land. The trial court rejected the plea of the State that the Plaintiff was owner of more than 150 bighas of land in absence of any evidence to that effect. Besides, the Government Patwari (D.W.2) did not state in his evidence that the settlement was refused on the ground of the Plaintiff owning more than 150 bighas of land. The trial court also rejected the contention of the Defendants that the suit was barred u/s 154 of the Assam Land and Revenue Regulation. The learned Munsiff, therefore, decreed the suit.
The learned Subordinate Judge held the land to be accreted land and also contiguous east of the Plaintiff''s periodic patta land covered by Dag No. 180. He also found that the Defendant No. 2 has no land contiguous to the disputed land. He therefore agreed with the learned Munsiff that "the suit land must have been settled with the Plaintiff and the State is entitled to assessment of revenue for the suit land if otherwise not barred." The learned Judge, however, on the admission of P.W. 1 (son of the original Plaintiff) that the Collector refused to settle the suit land as he had more than 150 bighas of land, held that the settlement was rightly refused under the provisions of the Assam Fixation of Ceiling on Land Holdings Act, 1956 (hereinafter referred to as ''the Ceiling Act'') as specifically averred in the written statement of the Defendant No. 1.
He found that the Plaintiff had more than 150 bighas of land and since u/s 4 of the Ceiling Act no person shall be entitled to hold as owner or tenant lands which exceed the limit of 150 bighas in aggregate he held that the Collector was justified in refusing settlement of the land in favour of the Plaintiff. He also held that as the Collector refused settlement of the suit land under the provisions of the Ceiling Act, the Plaintiff could not challenge the order of the Collector in a Civil Court u/s 32 read with Section 20 of the Ceiling Act. He held that the Civil Court''s jurisdiction was barred. As a result, the learned Subordinate Judge dismissed the Plaintiff''s suit. Hence, this second Appeal.
Dealing with Section 20 of the Ceiling Act, the learned Judge observed as follows:
So though under the law of alluvion read with Section 34, proviso (b) and the Explanation to Clause (b) of Section 3 of the Assam Land and Revenue Regulation the Plaintiff was entitled to the suit land as accreted land, Plaintiff''s acquisition of the suit land was barred u/s 20 of the Assam Fixation of Ceiling on Land Holdings Act. 1956 and so the learned Collector was justified in refusing settlement of suit land to the Plaintiff.
Section 20 may be read:
(1) Notwithstanding anything to the contrary in any law usage, contract or agreement from and after the commencement of this Act, no person as owner or tenant shall acquire or possess by transfer, exchange lease agreement or settlement any land which with or without the lands already held by him or any member of his family, shall in the aggregate exceed the limit fixed u/s 4 of this Act.
x x x x
From the finding of the learned Judge, it is clear that the land accreted to the periodic patta of the Plaintiff. If that is so although the Bengal Alluvion and Diluvion Regulation 1825 (Bengal Regulation 11 of 1825) is admittedly not applicable in the Cachar district the principles of justice, equity and good conscience will be easily invoked and under those principles even in absence of a provision like Section 4 of the Bengal Regulation, the principle of that Section will apply.
We may, therefore, read Section 4:
When land may be gained by gradual accession, whether from the recess of a river or of the sea, it shall be considered an increment to the tenure of the person to whose land or estate it is thus annexed whether such land or estate be held immediately from the Government by a zamindar or other superior land-holder, or as a subordinate tenure by any description of undertenant whatever....
Explanation to Section 3 of the Assam Land and Revenue Regulation is directly applicable to this case. That Explanation reads:
Any land gained by alluvion or by dereliction of a river to any estate as here defined, which under the laws in force is considered an increment to the tenure to which the land has accreted, shall be deemed to be part of that estate.
This Explanation clearly shows that any land gained by alluvion, as in this case, shall be deemed to be part of the main estate to which it has accreted, provided under the laws in force such alluvion is considered an increment to the tenure to which the land has accreted.
In this context, reference to Section 34 of the Regulation may be apposite. By that sec. "when a settlement has been accepted, the revenue fixed thereby and no more shall be payable from such date and for such term, as the State Government may fix in this behalf:
Provided that:
(a) X X X X
(b) X X X X
(c) in the case of gain by alluvion or by dereliction of a river, or loss by deluvion during the currency of the settlement increment shall be assessed and reductions granted by the Deputy Commissioner according to such limitations as to the extent of gain or loss and such other conditions as may be prescribed....
Proviso (c) to Section 34 of the Regulation therefore clearly indicates that by operation of this provision of law the accreted land becomes a part of the tenure to which it is annexed and the main estate with this addition will be liable to increased assessment of land revenue.
The Explanation set out above may, therefore, be referable to the provision u/s 34, proviso (c) of the Regulation in addition to the principles of justice, equity and good conscience. The result is that the accreted land having already formed part of the periodic patta land of the Plaintiff viz. dag No. 180 to which it is immediately contiguous, is not available for settlement in favour of the Defendant No. 2 on the erroneous assumption that it is a khas land. There is no evidence on record that this land is khas as claimed by the Defendants. There is no finding of the court below to the effect that the disputed land is khas land of the Government. The settlement in favour of the Defendant No. 2 is therefore invalid as the land under the Regulation, formed part of Dag No. 180 which automatically became the estate of the Plaintiff unless the Plaintiff refused to accept the same. The Plaintiff in this case applied to the Government for settlement of the accreted land although such an application was not necessary as he was entitled to it under the law. We are therefore, clearly of opinion that settlement in favour of the Defendant No. 2 is unauthorised and invalid and the Plaintiff is entitled to the settlement of the disputed land and also to khas possession of the same. The view we have taken receives support from a Division Bench decision of this Court in Safiulla Vs. The State of Tripura, Manipurini v. State of Assam.
From the above conclusion we will presently show that Section 20 of the Ceiling Act is not at all attracted in the present case. It is not a case where the Plaintiff has acquired or possessed this land by transfer exchange, lease, agreement or settlement. He is entitled to this land by operation of the law as shown above and he should get an opportunity under the provisions of the Ceiling Act to either retain it or to surrender the same in accordance with law and the procedure laid down therein.
The learned Judge also relied upon Section 32 of the Ceiling Act as a bar to jurisdiction of a civil court in entertaining such a suit. That section may be quoted:
Except as otherwise expressly provided in this Act, no decision or order made in exercise of any power conferred by or under this Act shall be called in Question in any Court.
It is enough to state that this section is not in the way of the Plaintiff. The Plaintiff in this suit has not challenged any decision or order of any authority made in exercise of the powers under the Ceiling Act. The Deputy Commissioner settled the land in favour of the Defendant No. 2, as we have found above, on the mistaken assumption that it was khas land available for settlement under the Assam Land and Revenue Regulation. It is true that he settled the land in favour of the Defendant No. 2 in preference to the Plaintiff who has more than 150 bighas of land. Even so, the order of settlement in favour of the Defendant No. 2 is not an order made in exercise of the powers under the Ceiling Act. It is an order in the usual course under the provisions of the Assam Land and Revenue Regulation. That being the legal position. Section 32 of the Ceiling Act is no bar to the institution of the suit.
In the result, the appeal is allowed. The judgment and decree of the learned Subordinate Judge are set aside and the decree of the learned Munisff is restored. We will, however make no order as to costs here as well as in the trial court.
M.C. Pathak, J.
I agree.