Case: Ranendra Narayan Sinha &amp; Ors Vs. State Of West Bengal

2. There is not much dispute about the facts which give rise to the claim. By Regulation 1 of 1793 called "The Bengal Permanent Settlement Regulation 1793," thegave legislative recognition to the Proclamation previously addressed to the zamindars, independent Talukdars and other actul proprietors of land paying revenue to Government in the Province of Bengal. Thereby, inter alia, the Jammu assessed upon the land under the permanent settlement was to be continued after the expiry of the period of the current decennial settlerment, and to remain unalterable. The amount payable to the Government for rue Pargana Goas was determined at the time of permanent settlement at (Sicca) Rs. 99,160/11/11/3/4 Gondas. The Pargana consisted of 12 Hudas or groups of Mouzas, one of which was Huda Alaipur. Appertaining to Huda Alaipur are 11 ferries. The revenue of Alaipur estate was fixed at (Sicca) Rs. 10,052/6/5 including (Sicca) Rs. 4,500/as the revenue payable in respect of the ferries. By Act 17 of 1835 the Sicca Rupees of the Company in terms of which the revenue was assessed were converted into New Companys Rupees and in view of the change in the coinage for every 15 Sicca Rs. 16 New Companys Rupees were payable. The revenue assessed in respect of the 11 ferries was accordingly fixed at Company Rs.The zamindars of Pargana Goas were before and after the permanent settlement in possession of the ferries and were receiving income by letting out the right to transport passengers and goods and were levying tolls on the ferries. Between the years 1857 and 1860 the ferries were, in exercise of the power conferred by Reg. VI of 1819, declared public ferries by the Government of Bengal, and the then zamindar was paid as compensation Rs. 53,923/4/6 being ten times the income received from the ferries in the year next after resumption of the ferries by the Government. The zamindar claimid abatement of revenue in respect of the ferries resumed by the Government, but no reply was given thereto, and according to the plaintiff under threat of coercive action the plaintiffsthe court of Wards which was in management for a long time since the year 1860 and Raja Bhupendra Narayan Sinha were made to pay (Sicca) Rs. 4,500/per annum as revenue in respect of the ferries even after the ferry rights had ceased to belong to the zamindar.3. The plaintiff filed in 1945 in the Court of the Subordinate Judge, Murshidabad, the suit out of which this appeal arises. The suit was contested by the State of West Bengal on the pleas inter alia that the ferries resumed by the Government during the years 1857 to 1860 were not identical with the ferries described in the Rokhabandi papers of 1206 B. S. on which the plaintiff relied that in any event the ferries appertaining to Huda Alaipur did not form part of the assets of the estate bearing Tauzi No. 523 of the Murshidabad Collectorate and the assets of the ferries were never taken into account in assessing the revenue of the estate that in any case the liability to pay revenue of the ferries had not been separately assessed at (Sicca) Rs. 4,500/that the suit was barred by the law of limitation and estoppel and that the Court had no jurisdiction to try the suit. In the opinion of the Trial Court the Civil Court had jurisdiction to try the suit that the suit was not barred by the law of limitation or by estoppel that the ferries described in the Rokhabandi papers of Huda Alaipur were identical with the ferries resumed by the Government during 1857 to 1860 that the assets of the ferries were included in Huda Alaipur which was one of the 12 Hudas included in Tauzi No. 523 of the Murshidabad Collectorate, that the revenue of the ferries had been separately assessed at (Sicca) Rs. 4,500/and that the plaintiff was entitled to abatement of revenue to the extent of (Sicca) Rs. 4,500/i. e. Company Rs. 4,800/The learned Judge accordingly decreed the plaintiffs suit.4. The State of West Bengal appealed against that decree to the High Court. During the pendency of the appeal the rights of the Zamindar were extinguished. The dispute in the High Court was therefore, restricted to the right of the plaintiff to recover the arrears of revenue decreed and a declaration of the right to obtain refund to excess revenue paid by the plaintiff between date of the institution of the suit and the extinction of the interest of the Zamindar. Before the High Court it was urged that the income of the ferries did not form Part of the assets of Huda Alaipur at the time of the permanent settlement, that the ferries were not separately assessed to revenue at (Sicca) Rs. 4,500 that the ferries resumed by the Government between 1857 and 1860 were not identical with the ferries mentioned in the Rokhabandi papers that the suit filed by the Raja Bhupendra Narayan Sinha was not maintainable that in determining compensation for the ferries the Government had included the value of abatement of the revenue and that the claim for declaration of abatement was barred by the law of limitation. The High Court decided the first three contentions in favour of the plaintiff and the remaining in favour of the State. The High Court held that the compensation amounting to Rs.which was ten times the gross collection from the 11 ferries in the year after resumption included the value of the right to abatement claim and that in any event the claim for a declaration of abatement of revenue was barred by the law of limitation. On the question of the maintainability of the suit the two learned Judges differed. S. K. Sen, J held that the civil Court had no jurisdiction to entertain the suit: Amaresh Roy. J. reached a contrary conclusion. But consequent upon the findings on the other two issues the High Court reversed the decree passed by the Trial Court and dismissed the suit.

Reasoning: Two matters appear clear on the findings of the Trial Court and confirmed by the High Court: (1) that the revenue in respect of the 11 ferries was separately assessed; and (2) that the right to ferry was recognised as a right to property for resumption of which the Government of the day was liable to pay compensation. The ferries were appurtenant to the lands of the Zamindar each ferry being a connecting link between two highways on the lands of the plaintiffs predecessors. The right to the ferries was resumed by the Government in exercise of the power conferred by Regulation VI of 1819 and the right of the Zamindar to receive compensation for loss of the ferry right was conceded. But on the resumption of the ferries no abatement of revenue payable in respect of the ferries was granted. The result was somewhat anomalous.Whereas the ferries in respect of which the revenue was separately payable were taken over by the Government by compulsory acquisition or by resumption, the Zamindar still remained liable to pay the revenue assessed thereon.argument that a larger compensation was paid and on that account the plaintiff was not entitled to abatement of revenue appealed to the High Court. But, in our judgment the record of the case does not support the conclusion reached by the High Court.It is clear that originally it was proposed to resume only one or some but not all the eleven ferries, and abate the revenue by Rs.Later it was decided to resume all the ferries in Huda Alaipur and to pay compensation at ten times the amount of profit determined "on the basis of one years working of the ferries" after they were takenthe argument proceeds upon several assumptions which are not supported by evidencc. There is no evidence that the plaintiffs predecessors were making only Rs. 5,392/gross (income) out of the ferries. It cannot be assumed that because the Government collected from the 11 ferries Rs. 5,392/in the first year after the ferries were taken over and the Zamindar was liable to pay Rs. 4,800/only.15. There is nothing in the correspondence to indicate that any part of the compensation was to include the capitalised value for abatement of revenue. The ferries were regarded as assets belonging to the Zamindari and were separately assessed to revenue. It was but just that the revenue assessed upon the ferries should, to the extent of resumption or acquisition of ferries, be abated. In the absence of any evidence to prove that the Government took into account the value of abatement of revenue and the Zamindar agreed to receive compensation, agreeing still to pay the revenue in respect of the ferries resumed, the conclusion inevitably follows that on the resumption or acquisition of the ferries the Zamindar ceased to be liable to pay the annual revenue assessed upon the ferries.16. There is no evidence of a written claim made by the Zamindar for abatement of revenue since 1860, and we are unable to infer from that circumstance anything adverse to the plaintiff. For many years, the Pargana was in the possession of the Court of Wards and it is the case of the plaintiff that from time to time requests were made for abatement of revenue, but no relief was given and the revenue including the revenue from the ferries was recovered from the Zamindar under threat of coercive process. No inference from the delay in making a claim for abatement of revenue arises.17. The High Court was of the view that the claim made by the plaintiff was barred by the law of limitation. The plaintiff was claiming in this suit the amount of revenue recovered from him in excess of the amount lawfully due from him and he claimed a declaration that the revenue stood abated. Right to collect revenue which is not due cannot be acquired by prescription, and if the plaintiff had been compelled to pay sums of money which he was not liable to pay the claim could properly be made within three years from the date on which the payment was made. The Trial Court was, in our judgment, right in holding that an amount of Rs. 14,440/was properly recoverable. The Trial Court was also right in declaring that there was complete extinction of liability to pay revenue in respect of the 11 ferries. To the claim for declaration of the right to abatement there is, in our judgment, no bar of limitation. Each demand for recovery by the Government confers a fresh cause of action. In any event, there is nothing on the record which suggests that the claim for abatement was refused, before theis undisputed that there is no express bar under any of the statutes to the maintainability of the present suit, nor is our attention invited to any provisions of law or circumstances which may justify an inference to that effect.There is nothing in the Regulation which excludes the jurisdiction of the Civil Court in the matter of revenue qua a private ferry resumed orcase has, in our judgment no bearing in the present case. The method for determining the compensation is provided by Act 1 of 1885 and the Civil Courts jurisdiction to determine compensation pro tanto may be deemed excluded.The rules and instructions set out in the Manual are apparently not statutory. Even as summing that they are statutory there is nothing to indicate that they exclude the jurisdiction of the Civil Court in respect of matters relating to abatement of revenue in the civil suits and as rightly conceded by counsel for the State of West Bengal, there is no evidence that any such Rule like Rule 159 was in operation at the time when the ferries belonging to the Zamindar were resumed or acquired by the Government of the Province of Bengal.23. S. K. Sen. J., was, in our judgment, in error in holding that the Civil Court had no jurisdiction to enterain the claim for abatement of revenue and for a declaration that the plaintiff was not liable to pay revenue in respect of the ferries which were resumed by the Government.