The Right Hon. the Lord Justice Turner

1. At the time of the perpetual Settlement, the large Zemindary known as the Khurruckpoor Mehals in Zillah Bhagulpoor was settled with Maharajah Kadir Ali Khan, who in or before the year 1790 was in possession of it. It consisted of twenty-six Pergunnahs, of which five were alleged to be and were then held as Lakhiraj. Of these alleged Lakhiraj Pergunnahs it is only necessary to specify Pergunnah Khurruckpoor Havelee, which has throughout the argument before us been conveniently called "Havelee." Of the Malguzary, or revenue-paying Mehals, it is sufficient to name Pergunnahs Suhrooe, Sukrabadee, and the most important of all, Purbutparah, which was subdivided into Tuppahs, Lodhwah and Semroum, Daygee, Mullia, and Bhudra. The Settlement above mentioned was made, as in other cases, by Pergunnahs, without any survey or measurement of the lands comprised in them; and as this vast Zemindary included a great deal of wild, uncultivated mountainous and forest land, it may be supposed that, however well ascertained may have been the boundaries of the whole, those of its component parts, or Pergunnahs, inter se, were not very clearly defined. The effect of the Settlement was to fix permanently and for ever the revenue payable in respect of the Malguzary, or, as they are termed in these proceedings, " the Nizamut Mehals," and to leave the Lakhiraj Mehals free from the payment of revenue, but subject to the right reserved to the Government by Ben. Reg. XIX. of 1793, to resume and assess the lands, should the tenure, under which they were claimed to be held Lakhiraj, thereafter be found to be invalid. Kadir Ali Khan on his death was succeeded by his eldest son, Ikbul Ali Khan, who also died some time before the year 1836, and was succeeded by his brother Ruhmut Ali Khan.

2. In 1836, the Government impeached the Lakhiraj title of the Zemindar. Pergunnah Havelee was resumed and separately settled. The proceedings which resulted in the settlement of it will hereafter be fully considered. At present, it is sufficient to say that they began in the year 1836, and continued until the 9th of April, 1844, when a temporary settlement for twenty years was made with the Maharanee Wujhoonissa, to whom the interest of her husband, Ruhmut Ali Khan, had been transferred.

3. Pending the proceedings for the resumption and settlement of this Pergunnah, Ruhmut Ali Khan suffered the Government revenue on the Nizamut Mehals to fall into arrear, and these Mehals were accordingly sold by public auction for such arrears, and on the 11th of August, 1840, were purchased by the Appellants father, Rajah Bidianund Singh, and another person, who afterwards transferred his share to Rajah Bidianund Singh. This sale, of course, put an end to the unity of ownership of the Nizamut Mehals and of Havelee; Rajah Bidianund Singh thenceforward being the Zemindar of the former, with all the rights possessed by the original Zemindar at the date of the perpetual Settlement; whilst the latter, subject to the rights of Government in respect of the revenue to be assessed thereon, continued to belong to Ruhmet Ali Khan, and after him to Wujhoonissa.

4. In 1845, Wujhoonissa having failed to pay the revenue assessed on Havelee, that estate was also sold for the arrears, and was purchased by Maharajah Rooder Singh, the grandfather of the present Respondent, Lukhmissur Singh, on the 5th of November, 1845.

5. The estates having thus become separate, boundary disputes took place between the owner of the Nizamut Mehals, or his tenants, on the one side, and the owner of Havelee, or her tenants, on the other. It may be necessary hereafter to refer more particularly to the proceedings to which these disputes gave rise. At present, it is sufficient to say that the controversy was continuing during the proceedings of the Government surveyors engaged in making a topographical survey of the Zillah Bhagulpoor in the years 1846 and 1847.

6. It appears to have been the duty or practice of the Officers employed in this survey, to lay down the boundaries of estates or other divisions of land, where there was any dispute concerning them, according to the evidence which they might find of the actual possession of the lands. In the present case they had to deal with a controversy touching the boundary line between Havelee and Pergunnah Purbutparah, and the other Nizamut Mehals contiguous to it. The owner of the latter, on the one hand, insisted that this had been conclusively determined at the time of the settlement of Havelee by a map prepared after actual survey and ad-measurement by a Captain Ellis, under the instructions of the settlement officers. The owner of Havelee, on the other hand, disputed the accuracy of Captain Elliss map, if it purported to be a map of the entire Pergunnah Havelee, and questioned the intention to include the whole of Havelee in that map. The Officers of the survey, relying for the most part on the evidence which they had, or thought they had, of actual possession, came to a conclusion adverse to the Appellants ancestor, and prepared the map known in the proceedings as " Captain Sherwills map," by which upwards of 175,000 beegahs of land in excess of that comprised in Captain Elliss map was attributed to Havelee, and taken out of the Nizamut Mehals as laid down in that map. The effect of these proceedings was to leave somewhat doubtful the question, whether this land was included, or intended to be included, in the settlement of 1844, or whether it was a Towfeer or surplus which the Government was still entitled to assess de novo.

7. Some further proceedings afterwards took place in the Foujdary Court and elsewhere, touching the right to the possession of this land; but the effects of these proceedings was to remit the Appellant, or his father, Rajah Bidianund Singh, to a regular suit, in which alone the title could be litigated.

8. The suit out of which this appeal has arisen was accordingly instituted by the Appellant on the 5th of June, 1851. Its object is to recover as part of the Nizamut Mehals the 175,000 beegahs of land laid down by Sherwills map as within Havelee, in excess of the land attributed to Havelee by Elliss map; but the plaint divides this land in certain proportions between certain specified Mouzahs, the names of which occur in the lists of the villages, comprised in Pergunnahs Purbutparah and Sukrabadee, which were prepared at the time of the perpetual Settlement, or shortly subsequent to it. The Defendants to the suit, the Respondents to this appeal, are the Government, Maharajah Lukhmissur Singh, and some of the tenants, and they insist that the 175,000 beegahs of land in question properly belong to Havelee.

9. The suit was heard first by the Principal Sudder Ameen of Bhagulpore, who by his decree, dated the 9th of July, 1855, dismissed the suit on the ground that the Plaintiff had failed to establish a title to recover the lands in question. This decision was based upon proceedings of the Government surveyors, and seems to imply that the land was Towfeer.

10. On appeal to the Sudder Dewanny Adawlut, that Court, by a majority of two Judges to one, confirmed the decision of the Principal Sudder Ameen, but did not adopt its grounds. The two Judges appear to have held that something in excess of the lands comprised in Captain Elliss map was included in the Havelee settlement, that the extent of that excess was undetermined, and that it lay upon the Plaintiff to show what he was entitled to recover, which he had failed to do. The dissentient Judge, on the contrary, held that no part of the land in dispute was included in the settlement of Havelee; that, therefore, ex necessitate, the whole must be taken to form part of the contiguous Nizamat Mehals, and that the Plaintiff had established his title to recover it.

11. According to the view, therefore, both of the affirming Judges and of the dissentient Judge, the decision of this suit depended on the question whether the land claimed, or any, and if any, what defined part of it, was included in the Havelee settlement; and we think that this was a correct view of the case. It was incontestible that the land in question formed part of the Zemindary which by the perpetual Settlement was assured to Kadir Ali Khan; but that Zemindary consisted partly of the Nizamut or revenue-paying Mehals, in respect of which the revenue payable by the Zemindar was then finally settled, and partly of the Mehals, including Havelee, which were alleged to be Lakhiraj, and on which, therefore, no revenue was assessed. The land in dispute is so situated that it must necessarily belong either to Havelee or to the contiguous Nizamut Mehals; but the perpetual Settlement. unfortunately omitted to define the boundary line between Havelee and these Mehals : had it done so the question in the cause could not have arisen, since, we need hardly say, no Court would disturb what had been fixed by the perpetual Settlement. The resumption of Havelee afforded a fresh occasion for the definition of these boundaries, even whilst both Havelee and the Nizamut Mehals belonged to the same owner; because Government, by virtue of the resumption, acquired the right of assessing revenue upon all that lay within the boundaries of Havelee, whilst it had no right to assess any fresh revenue upon a single beegah of land within the Nizamut Mehals. Subsequent events severed the ownership of Havelee from that of the Nizamut Mehals, and the question of boundary then arose in this suit, not as a question of revenue between the Government and a Zemindar, but as one of title to land between the Zemindars and proprietors of two contiguous and separate estates, the Nizamut Mehals and Havelee.

12. In dealing with this question it must, as we have said, be assumed that so much of the land in dispute as was not included in Havelee belongs to the Nizamut Mehals; and in considering what was included in Havelee the Court below could only deal, as we upon this appeal must deal, with the Havelee settlement as it stands. For the purposes of this suit that settlement must be considered as valid and subsisting. If the boundaries of Havelee ascertained by it are at all capable of being corrected, they certainly cannot be corrected in a suit of this nature. All that we can determine in this suit is whether, according to the true construction and effect of the Havelee settlement taken as it stands, the whole, or what part of the lands in question, belongs to Havelee, or the whole, or what part of them, is included in the lands which were the subject of the perpetual Settlement.

13. In considering this question three views of this Havelee settlement present themselves for our consideration.

14. The first is that it included, and was intended to include, the whole of Pergunnnah Havelee, and that all which it did include is within the limits of Elliss map. The second is, that it included, and was intended to include, the whole of Pergunnah Havelee, but that some portion of what it did include lies beyond the limits of Elliss map, and is to be found in the district of which the ownership is now in dispute. The third is, that it did not include the whole of Pergunnah Havelee, but that, either from accident or design, the large district in question, or some undefined portion of it; was omitted from the settlement, as well as from the map, and is now what in these proceedings is called a Towfeer or surplus.

15. We proceed, therefore, to consider the intention, extent, and effect of the Havelee settlement proceedings with reference to these views.

16. The first of these proceedings is that of the 1st of July, 1836. By it Mr. Travers, the Deputy Collector of the Zillah Monghyr, on grounds which, for the purposes of this suit, must be deemed sufficient, decided against the claim of Ruhmut Ali Khan to hold Havelee and the other four Pergunnahs to which we have before referred Lakhiraj, and affirmed the right of Government to resume and assess them.

17. There was an appeal against this Order, pending which the Government, not being able to effect an arrangement with the Zemindar as to the intermediate collections of Havelee, assumed the management of it by a Tehsildar of their own appointment. The appeal was dismissed on the 30th of November, 1837, by a Special Commissioner acting under Ben. Reg. III. of 1828, and the title of Government to assess the whole of Havelee thus became complete.

18. It then became the duty of the Deputy Collector, or the Settlement Officer, under Ben. Reg. II. of 1819, sec. 21, cl. 4. " to ascertain the limits of the land " (i.e., of the whole of Pergunnah Havelee), and to fix the assessment; and various proceedings were had with this object. Most of these proceedings are found in extenso in the first volume of the printed record, and we must refer to the more, important of them).

19. On the 9th of April, 1838, Mr. Farquharson, described as the Superintendent of the Khas Mehals, but acting as the Settlement Officer in the case, held a proceeding as to Havelee. After reciting that the Surhudbundee and Rookbabundee (the specifications of boundaries and area) were not with the record, it ordered Ruhmut Ali Khan to file a list of the villages of Havelee, and also of Pergunnahs Suhrooe, Sukrabadee, Singhool, and Luckhunpore, Pergunnah Purbutparah (these being doubtless assumed to be the contiguous Nizamut Mehals), accompanied by a Surhudbundee thereof. It also ordered the Putwarrees to file the Surhudbundee and Rookbabundee of their respective Mouzahs. The object obviously was to obtain a definition by metes and boundaries both of the whole Pergunnah and of its component villages.

20. In the proofs and documents filed by the Plaintiff we have the actual process issued in respect of Bounuckabad, a principal village of Havelee, under this order, and the return to it. The dates are the 17th of April and the 31st of May, 1838, and there is a proceeding in the office of Khas Mehals of the 14th of April, 1838, before Mr. Farquharson. It complains of the omission of a village named Bheembandh, though part of Havelee, and that two other villages have been returned as waste, though in fact they were inhabited. It directs the attachment of Mouzah Bheembandh as far as Koh Marug, Tuppah Dighee, and gives other directions that are not material to the present question. It orders notice to be sent to Ruhmut Ali Khan that no settlement will be concluded with him unless he file correct Jummabundee papers.

21. On the 11th of November, 1838, Mootee Lall, the Tehsildar appointed by Government, reported to Mr. Farquharson that two Mouzahs adjoining Bheembandh, one named Goormah, the other Pakum, were west of Bheembandh in the hills, and asked for an inquiry concerning them.

22. This led to Mr. Farquharsons proceeding of the 23rd of January, 1839. In that, after stating that it had come to his knowledge that two villages (there called Tolahs) are situate in Bheembandh, but had not been attached, he directs the issue of a Purwannah to Mootee Lall, ordering him to bring these Tolahs under collection, and to explain why they had not been resumed along with Bheembandh.

23. Then we have the report of Mootee Lall, the Tehsildar of Khas Mehal, in answer to this order; it is dated the 8th of April, 1839. It appears to be indorsed on the Purwannah, and reports that after the issue of it, Mr. Farquharson had arrived at Khurruckpoor and had given a verbal order to relinquish Mouzah Kormaha (which is obviously the same place as that previously called Goormah), and to have the survey of Kita Bakun (before called Pakum) made with Bheembandh; that afterwards a Purwannah of the 23rd of March, directing a separate survey of Bakum, had arrived, and that accordingly Mouzah Kormaha had been relinquished, and Mouzah Bakum would be surveyed. On this report Mr. Farquharson has indorsed " That this be put up with the record: May 16th, 1839."

24. Intermediately Mr. Farquharson seems to have taken the depositions of Meer Dad Khan, a former Tehsildar of Havelee, and of Bhowanni Lall, described as an inhabitant of Havelee, but Peshkar of Pergunnah Purbutparah. The former was taken on the 8th of April, 1839, the other was taken on the 15th of March, 1839. They may have conduced to Mr. Farquharson s determination to relinquish Kormaha.

25. In the evidence there are detailed measurements of the lands of Mouzahs Rouncekabad, Bheembandh, and Mudhobun. The second alone is dated, and as the date is the 24th of March, 1839, it may be inferred that Kita Bakum, which by the report of the 8th of April is treated as about to be separately measured, was not included in this measurement.

26. On the 15th of April, 1839, Ruhmut Ali Khan who describes himself as Malik or Zemindar of the entire Mehals of Khurruckpoor, presented a petition, which, as we understand it, is confined to Bakum as a Kita or part of his Nizamut Mouzah Bhorebhundaree. He protests against its inclusion in Havelee. The petition seems to have been presented to Captain Ellis, then engaged in surveying Havelee and making his map. He on the 22nd of April, 1839, directed a copy to be sent to the Settlement officer (Mr. Farquharson), who on the 6th of May, 1839, directs the officer (Ellis) to be informed that the case is pending in that Cutcherry. The decision was adverse, for we have a further petition from Ruhmut Ali Khan, which (and as it seems wilfully) confounds Bakum with Kormaha, alleging that the former though relinquished had been separately surveyed by Mootee Lall; that the measurement papers of Havelee are being prepared and Kita Bakum inserted in the English map, and stating that he objects to take attested copies of the English map because Kita Bakum (a Nizamut Mehal) is inserted in it. The order indorsed on this petition is dated the 8th of July, 1839, and is, that it be rejected.

27. On the 14th of September, 1839, a summary settlement was concluded by Mr. Farquharson with Ruhmut Ali Khan for one year, i.e., from the 1st of May, 1839, to the 30th of April, 1840, and this by a subsequent order was confirmed and extended to April, 1841.

28. It was during the currency of this temporary settlement that the Nizamut Mehals were sold, and Ruhmut Ah Khans interest became limited to the resumed Mehals.

29. It is also probable that during the same period, Mr. Beadon, who had succeeded Mr. Farquharson, began the investigation which resulted in the proposal for a permanent Settlement, next to be considered, and that, in aid of that investigation, Captain Ellis, by his proceeding of the 30th of June, 1840, directed "the measurement papers of the Mouzahs of Havelee, filed by the Ameens, which had on comparison with the English measurement papers been found to correspond," to be forwarded to the Superintendent of Khas Mehals.

30. Mr. Beadons final settlement proceeding is dated the Kith of December, 1841. It gives a summary of the former proceedings, and states that " whereas a perpetual Settlement of that Mehal (Havelee) was proper, and the Mehal having been surveyed by the Revenue Surveyor (who from the mention of his name in the next paragraph is clearly Captain Ellis), the measurement papers are forthcoming in the office. Hence, after inquiring into Jummabundee, from the statements and papers of the cultivators and Putwarrees, a perpetual Settlement had been, conformably to Regulation VII. of 1822, concluded from the 1st of May, 1841."

31. The proceeding then details at great length the principles upon which this Settlement bad been effected. It seems sufficient to state that Mr. Beadon took the area as measured at 123,207 beegahs and a fraction. From this he deducted 60, 433 beegahs and a fraction as absolutely jungle, waste, and unculturable, leaving a balance of 62,774 beegahs and a fraction. This again, when subdivided, was found to consist of 18,998 beegahs and a fraction of land actually cultivated, and producing, or capable of producing, rent; and of 43,775 beegahs and a fraction of land which, though not cultivated, he describes as "culturable." The annual revenue derivable from the cultivated land he estimated at S. Rs. 15,517, to which he added S. Rs. 738. 2, the amount of Sayers, or miscellaneous revenue (a description of revenue which will require further consideration), making the total revenue S. Rs. 16,255.6. The moiety of this, being, when converted from sicca Companys rupees, 8,666 and a fraction, he fixed as the revenue payable perpetually, abandoning all further claim to revenue from either the 48,775 beegahs of culturable, or the 60,433 beegahs of unculturable land.

32. It is to be observed that Bakum (spelt Bakhum) is included in the list of villages, its measured area being stated to be 129 beegahs 19 biswas. It follows, therefore, that whether the Bakum resumed by Mr. Farquharson be in Elliss map or not (a question hereafter to be considered), its measured area is included in the 123,207 beegahs, the basis of the Settlement.

33. It is further to be observed that there is no trace of Goormah or Kormaha in this or the subsequent Settlement proceeding.

34. Again, it is to be observed that the total of the miscellaneous revenue, Sayers, or cesses, was taken by Mr. Beadon to be S. Rs. 738.2, of which S. Rs. 576 consisted of rents payable by the lessees of the Sayer Mehal, according to the deposition of Ameen Dad Khan, taken on the 14th of March, 1841, and the rest consisted of the Sayers returned by the Putwarrees and Ameens. We may here observe, too, that in the S. Rs. 576 is included an item of S. Rs. 400 payable by Rujjib Ali as farmer of "Ghauts Marug and Kurrailee, &c.," touching which we have also his deposition, taken the 24th of March, and the Ummulnameh of 1248 (1841), a document which may be of some importance with reference to the present inquiry; for whilst it gives the names of various Ghauts, as proposed to be included in the lease to which it refers, it seems to indicate that the lease was to comprise not only such tolls as may be conceived to be leviable from persons passing the Ghauts, but Bunkur, which properly is a right of cutting wood, and Phulkur, a right of gathering fruit-rights indicative of a certain dominion over the soil in a given locality.

35. On the 16th of September, 1843, Mr. Beadons proposal of a permanent Settlement on this basis was overruled by the Commissioner, who, on the 25th of the same month made over the estate to Mr. Joachim Piron, to be settled de novo.

36. Shortly before this, and on the 13th of June, 1843, the transfer of Havelee from Ruhmut Ali Khan to Wujhoonissa had taken place.

37. Mr. Pirons first step was to ask whether he was to make a new measurement. He was told to test the former measurement; to adopt it if he found it to be correct; to make a new one if he found it to be incorrect.

38. Mr. Pirons general report bears date the 20th of June, 1844; his settlement proceeding of the same date : the Doul Settlement. The report states that he made a settlement for twenty years with Wujhoonissa, of which the other papers give the details and the principles. His report also states expressly that the measurement which he tested was that completed under Captain Ellis; that he found it correct in every instance; and that his only objection to the former survey regarded the classification of the various qualities of land and the rates assessed thereon.

39. The result of Mr. Pirons settlement was somewhat different from that of Mr. Beadon. But it is perfectly clear that both Officers dealt with the same measured area, viz., the 123,207 beegahs and a fraction defined by Captain Ellis. Mr. Piron, however, making a somewhat different classification of the lands, fixed the amount of revenue derivable therefrom by the proprietor of Havelee at S. Rs. 20,678. 3. 171/2. In this he included the sum of S. Rs. 2,336. 8. 93/4 for Sayers, cesses or other miscellaneous revenue. Instead of leaving, as Mr. Beadon had done, free from any direct assessment of revenue 60,443 beegahs of unculturable+43,775 beegahs of culturable land, making together 103,209 beegahs of land, he excludes from assessment only 4,447 old fallow land, + 35,051 rocks with jungle,+42,586. 8.4 of jungle, making a total of 82,084 beegahs and a fraction of land free from assessment.

40. The result of Mr. Pirons proceedings was a settlement with Wujhoonissa for twenty years at the moiety of the gross rental as estimated by him, which, when converted into the Companys rupees, amounted to C. Rs. 11,028. 12. 10.

41. The documents by which this arrangement was carried out with her, and her petition, Kabooleat, and Mr. Pirons final order, all of the 9th of April, 1844, are all among the papers in the case. In the Kabooleat she describes herself as occupier of the entire Pergunnah Havelee, and says "123,186 beegahs and a fraction of land of the Pergunnah have been taken by me from you under temporary settlement at an absolute sum of C. Rs. 11,128.12. 10, being a moiety of the jumma, including Julkur, Bunkur, Phulkur, &c."

42. We stop at this point in order to state the conclusions at which we arrive from the proceedings and documents above referred to, in so far as they do not relate to the Sayers or cesses, or miscellaneous revenue-conclusions which in our judgment are no way affected by what has already appeared, or by what we shall presently state, as to these Sayers and cesses, or miscellaneous revenue. We are satisfied from these proceedings and documents that the settlement officers throughout intended to resume and settle and assess the revenues of the whole of Pergunnah Havelee, and that they throughout proceeded on the assumption of the correctness of the survey, measurements and map made by or under the inspection of Captain Ellis. Looking to the great care and the minute attention which was given to the settlement of this Pergunnah, it cannot be supposed that any portion of it was designedly omitted from the settlement; and if any portion of it was omitted by accident, this is not a suit in which the accident can be set right. We think, therefore, that the third view of this settlement, to which we have above referred, may for the purposes of this suit be laid out for consideration, and that no part of the district in question can for any of those purposes be considered as Towfeer, or surplus. We are also satisfied from the evidence afforded by these proceedings that Bakum was included not only in the measured area of 123,186 beegahs, but also in Elliss map. The objection expressed by Ruhmut Ali Khan in his rejected petition, to take attested copies of the map because it included, or was about to include, Bakum, is, we think, sufficient to prove this to have been the case.

43. Again, we are satisfied from these proceedings, and especially from the report of Mootee Lall, and Mr. Farquharsons mode of dealing with that report, and from the absence of all mention of Goormah or Kormaha in the subsequent settlement proceedings, that that village was advisedly relinquished by Mr. Farquharson as part of the Nizamut Mehals, and probably as part of Mouzah Bhorebundharee in Pergunnah Purbutparah.

44. It may be convenient also here to add, although it has no immediate reference to the foregoing proceedings, that from the proceedings by Mr. Beadon, officiating special of Deputy Collector of the 27th of August, 1841, the case of Mouzah Ghorakhore appears to have been solemnly decided in favour of the Nizamut Mehals, and that, in our opinion, the proceedings of the Officers of survey, of the 11th and 24th of June, 1848, are not entitled to weight as against that decision. We think, indeed, that the settlement of 1844 affords the only safe criterion for determining what belongs to Havelee, and what to the Nizamut Mehals.

45. It results from what we have already stated that, looking at this case without reference to the Sayers, cesses, or miscellaneous revenue, we should have come to the conclusion that Havelee as settled consisted only of the measured area of 123,186 beegahs; that this was all comprised within Elliss map, and that the Appellant, by showing this, had at least shifted the burthen of proof, and established a good prima facie title to recover the whole of the disputed territory; but it certainly cannot be denied that what appears upon the record before us as to these Sayers, or cesses, and this miscellaneous revenue, raises a very serious question whether some territory in excess of the measured area, and beyond the limits of Elliss map, does not belong to Havelee, and was not included in the settlement of it. It is necessary, therefore, to see how the case stands as to these Sayers, or cesses, or miscellaneous revenue. By Mr. Beadons settlement the revenue derived from these sources is stated to amount to S. Rs. 738.2; and we have already shown how that sum was made up. By Mr. Pirons settlement the Sayers or cesses are stated as amounting to Rs. 2,336. 8a. 93/4p., made up partly of the sums returned by the Putwarrees and Ameens as the Sayerat of their respective villages, and partly of sums aggregating S. Rs. 1,116, which were not so returned; this last-mentioned item being thus entered in the settlement proceedings :-"Bunkur and Boondee Mehal, besides the Putwarrees paper, whatever came to light by the depositions of farmers and persons informed, and by the perusal of Pottahs, &c, S. Rs. 1,116." We have here, therefore, some, at least, of these Sayers, or cesses, described, as Bunkur and Boondee Mehals; and other parts of this voluminous record contain the same or a similar description of them. We are of necessity, therefore, led to inquire what these Bunkur and Boondee Mehals really were; and to some extent, at least, the evidence leaves no doubt upon this point.

46. Mr. Piron himself says that the S. Rs. 1.116 was made up of S. Rs. 785 inserted in the Pottah of Peer Khan Soobahdar; of S. Rs. 251 inserted in the deposition of Rajee Singh, son of Durshun Singh; and S. Rs. 80, inserted in the deposition and Pottahs of Posun Pasee and others.

47. Now, we have Peer Khan Soobahdar s examination, which seems to have been taken on the 20th of January, 1844. He is described as farmer of Mehal Bunkur and Boondee Koh Marug, and Kurrailee, &c, Pergunnah Havelee. He professes to hold, but in the name of his son, Wahid Khan, Ghauts Marug, Kurrailee, Tabawee, Khuru Khataun, Hursa Poteeah, Burramupea, Shakole, and several other hills and Ghauts, for the names of which he refers to the Pottah, at a rent of S. Rs. 785, and to pay the rent to Ruhmut Ali Khan.

48. Again, we have the examination of a Rajputee Singh, the son of Durshun Singh, taken on the 30th of January, 1844, from which and the proceeding of Mr. Piron of the 26th of that month, we learn that Durshun Singh, was farmer of Mehal Bunkur Ghaut Koolurhea, attached to Mouzah Mudhoobun, Pergunnah Havelee; that he, during the subsistence of his lease, paid a jumma of S. Rs. 251 to Ruhmut Ali Khan, who on the expiration of the lease in April, 1844, was about to bring that Bunkur Mehal under his personal collection.

49. The S. Rs. 80 " inserted in the depositions and Pottahs filed by Posun Pasee and others " we have been unable to trace in the record.

50. Again, Mr. Quintin, who was the Superintendent of surveys of Zillah Bhagulpore, in his letter of the 19th of October, 1848, addressed to Mr. G. F. Brown, the Commissioner of Revenue for the division of Bhagulpore, refers to a variety of Ghauts as included in Pirons settlement; and so far as we can see they can have been so included only under the head of Bunkur and Boondee Mehals.

51. Again, it is clear upon the evidence that Ghauts Marug and Kurrailee, and possibly other Ghauts held by Peer Khan Soobahdar in the name of Wahid Khan at the date of Mr. Pirons settlement, were, at the date of Mr. Beadons settlement, held by Rujjib Ali, and, indeed, that the whole of the property, whatever it was, the revenue of which Mr. Beadon estimated at S. Rs. 570, is included in the property of which the revenue was estimated by Mr. Piron at S. Rs. 1,116.

52. It is clear, therefore, that Mr. Pirons settlement did include under the head of Bunkur and Boondee Mehals the revenue coming from certain Ghauts, of which the most prominent are Ghauts Marug and Kurrailee; and that Mr. Piron was right in including rights in these Ghauts as part of the assets of Havelee is, we think, almost proved to demonstration by the village papers in the second and third volumes of the Appendix to which Mr. Melvill directed our attention.

53. Some of these are produced by the Appellant, others by the Respondent, and the two classes show, with a correspondence in minute details that proves their genuineness, that long before the resumption the proceeds of these Ghauts were uniformly treated by the owners of the whole Zemindary as part of the revenue of the Lakhiraj Mehal, Havelee. Against this evidence it is vain to set the award of Buhmut Ali Khan of the 13th of April, 1837, after the date of the resumption, or the Kabooleats, or the occasional entry in the village accounts of Morkhut as Marugkhat. They would at most support the theory that there may have been more than one Ghaut of the same name, or different rights resulting from the same Ghaut; the two former classes of evidence may, indeed, more plausibly be referred to the desire, after the resumption, to claim these Ghauts for the Nizamut Mehals, which, until the sale of those Mehals, it was Ruhmut Ali Khans interest to do.

54. It must be taken, then, that Mr. Piron not only included, but properly included, the revenue arising from Ghauts Marug, Kurrailee, and other Ghauts in his settlement; but then the question is, What was this property, and does the ownership of it imply the ownership of any land in excess of the measured area, and beyond the confines of Elliss map

55. There is much evidence bearing more or less directly upon this point. There is the Ummulnameh, to which we have already referred, and there are the various suits and proceedings arising out of the long-continued litigation concerning these Ghauts.

56. The earliest of these proceedings which we find is under date the 12th of March, 1842. It was before the Magistrate in the Criminal Court under Act, No. IV. of 1840, and arose out of the alleged forcible dispossession of Rujjib Ali, the farmer under Ameer Buksh, of Ghaut Bhoondee, and Koh Marug, &c., by Munniar Rae, claiming the same subjects under a Pottah granted by Ruhmut Ali Khan, in his capacity of Zemindar of the Nizamut Mehals. Rajah Bidianund Singh intervened in the suit, objecting that it was brought in collusion with the former proprietor of the Nizamut Mehals, Ruhmut Ali Khan. This may have been the case, but the very objection shows that there was then a dispute, whether the parcels in Rujjib Alis farm, or some of them, belonged to Havelee, or to the Nizamut Mehals. The decision as to possession was in favour of Rujjib Ali.

57. The proceeding of the 24th of March, 1841, before Mr. Beadon, shows that during the investigation which led to his settlement there were disputes between the auction-purchaser and the owner of Havelee touching certain stone quarries stated to be with the hill Mar and part of the Boondee Mehal. The report of Ronshun Lall, Record Keeper of the Khass Mehal department, of the 21st of September, 1841, was obviously made in answer to a reference made in some suit arising out of the same dispute touching these Ghauts, which we have been unable to trace. It shows that as early as the 21st of September, 1841, Mr. Beadon had included the Ghauts held by Rujjib Ali in the settlement of Havelee.

58. The question, whether these Ghauts belonged to Havelee or to the Nizamut Mehals continued to be litigated in one shape or another during the whole period which elapsed between the dates of the settlement by Mr. Beadon and that by Mr. Piron.

59. One instance is the suit of Kishna Tewarry, of which the final proceeding is that of the 12th of June, 1845, which gives the history of the whole litigation. It began with a summary suit brought before the Collector by the Naib of the auction purchasers of the Nizamut Mehals (we presume in their name) against the Plaintiff for rent. The Collector has under the Regulations no jurisdiction to entertain such a suit unless the relation of landlord and tenant subsists between the parties. He, nevertheless, made a decree against Kishna Tewarry for the sum sued for. Thereupon Kishna Tewarry, alleging that he was not the tenant of the purchasers of the auction Mehals, but a sub-tenant of the owners of Havelee, brought his suit in the Civil Court (the Munsiffs) against Rajah Bidianund Singh to quash the Collectors decree as made without jurisdiction. The Munsiff decreed in his favour. There was an appeal to the Principal Sudder Ameen, who was against him. This was followed by a special appeal to the Sudder Dewanny Adawlut, which Court remitted the cause back to the principal Sudder Ameen, with directions to try the proprietary right. This protracted and animated litigation, ostensibly for a sum of less than Rs. 7, was obviously made a mode of trying the question of title between Rajah Bidianund Singh as the purchaser of the Nizamut Mehals, and first Rnhmut All Khan and afterwards Wujhoonissa (each of whom intervened in the suit as an objecting party), as the owner of Havelee. The proceedings show that the real issue was, whether certain subjects, as to which all parties were agreed, including Ghauts Marug and Kurrailee, belonged to Havelee or to the Nizamut Mehals. The proceeding and report of the 9th December, 1843, are set fully forth in the evidence, showing that Ghauts Marug, Kurrailee, &c, were included in Mr. Beadons settlement, were before the Court. The decision was, that the Munsiffs decree should be upheld, and that it was impossible to determine the proprietary right except in a regular suit, in which the two claimants should be Plaintiff and Defendant. Not the least important part of this proceeding is that Rajah Bidianund Singh, in his answer in the suit, alleged that the Ghauts did not appertain to the rent-free Pergunnah Havelee, that the Revenue Surveyor had excepted them from the measurement. The objectors do not contest this last proposition, but insist that they are attached to Havelee, and do not belong to Purbutparah. Both sides, then, seem to admit that the subject of dispute was beyond the measured area and the confines of Elliss map. There are similar decisions to the above in other suits specified and set forth in the Court below. The last is as late as the 15th of July, 1847.

60. Another instance of litigation involving the same issue is that in which Syud Reaz Ali, claiming as farmer of Tuppah Lodwah, was the suing party. By a proceeding of the 20th of November, 1843. the Collector of Monghyr, before whom this person had brought a summary suit to recover rent alleged to be due from one Omachurn, then an occupier of part of the Boondee Mehal, the Defendant having pleaded that the property in respect of which he was sued was part of Havelee, and had been settled with Ruhmut Ali Khan, called for the Settlement proceeding, and, in its absence, for a report from the Collector of Bhagulpore whether Mehal Boondee of Ghauts Kurrailee and Komaruk (obviously the same as Koh Marug) was comprised within the Settlement rights of Ruhmut Ali Khan, or was appended to any other Mehal.

61. There is a report of the Record keeper which purports to bear date the 13th of November, 1843, which was apparently made in answer to this requisition, though there is an inaccuracy in the printed date. It confirms the fact of the settlement as alleged by the Defendant. On this coming in, the suit was finally disposed of by Mr. Vansittart, the Collector, who dismissed the suit as one which he was incompetent to try, with liberty to the Plaintiff to sue in the Civil Court, if so advised. By this proceeding, it appears that Wahid Khan, the then farmer of Ghauts Marug, Kurrailee, &c., under Havelee, had intervened in the suit against his sub-tenant.

62. Again, the proceedings of the Collector of Bhagulpore of the 11th of November, 1843, those of the 9th of December in the same year, and the proceeding of the 19th of March, 1844, on the petition of Syud Reaz Ali, a farmer of Tuppah Lokhwah, all point to the conclusion that during the investigation which led to the settlement of Mr. Piron, Meaz Reaz Ali, claiming title under Rajah Bidiamund Singh, if not Rajah Bidianund Singh himself, was unsuccessfully resisting the inclusion of the Bunkur of Ghauts Marug, Kurrailee, &c., in the settlement of Havelee. The proceeding of the same Collector of the 11th of May, 1844, is also some evidence of this.

63. It appears that Peer Khan Soobahdar delivered over possession of Ghauts Marug, Kurrailee, and the other Ghauts comprised in his farm, to the purchaser of Havelee at the sale for arrears of revenue in November, 1845, or attorned as tenant to him.

64. These contentious proceedings certainly afford a strong inference that Ghauts Marug, Kurrailee, and others, which were included in the settlement, were something beyond the limits of the measured area and Captain Elliss map. It is impossible to read them without believing that the parties knew well what they were disputing about, and that each was claiming the same things. It is not probable that these things were within the measured area. Rajah Bidianund Singh could hardly push his pretensions so far as to claim anything within that area. On the contrary, as we have seen in Kishna Tewarrys case, his contention was that the things claimed were beyond the measured area, and, therefore, belonged to him, and the opposite party seems to have admitted the fact and denied the consequence. Had one of the parties bean claiming a Ghaut in one part of a mountain range, and the other insisting on his right to retain a Ghaut of the same name in another part of the range, it is inconceivable that there should be no trace of such a mistake in the pleadings of the parties, the reports of the Collectors, and the Judgments of the Courts. In truth, the mention of the farm sometimes of Rujjib Ali, sometimes of Wahid Khan, in these proceedings, almost establishes the identity of the subject in dispute with the subject of the settlement.

65. The proceedings of the Officers employed in the topographical survey also bear upon this point.

66. Of the reports of Talib Kurreem and Sayed Hossein, Thachabust Ameens, dated respectively the 28th of February and the 10th of February, 1847, both in answer to the petitions from Rajah Bidianund Singh and the orders thereon, it is sufficient to say that if they have no other value, they at least prove that when these persons passed from admitted portions of Pergunnah Purbutparah in the course of their survey into the disputed territory, they were met by claims on the part of Rooder Singh and his tenants; and a bona fide contention whether the land on which they stood, which they went to survey, and as to the locality whereof there could be no mistake, belonged to the Nizamut Mehals; or, as appertaining to some of the Ghauts in question, was part of Havelee.

67. Then came the proceeding of Mr. John Brown on the 5th of April, 1847, in which both the parties were in presence. Mr. Browns conclusion is no doubt against the view contended for by the Respondent, that the ownership of the revenue of these Ghauts imports the ownership of land in excess of the measured area, but his proceeding sufficiently shows that what the parties were claiming was in the disputed territory; one witness at least (Lushkurree Lall) connects the property claimed with the former holding of Soobahdar Khan; and though Mr. John Brown, in his eighth reason, suggests that the Ghauts Marug and Kurrailee, that were settled, are within the measured area, he does not point out where they are situated. Nor was there any suggestion on the part of the opposite party that Rooder Singh had shifted the locality of the property, so long in dispute between Havelee and the Nizamut Mehals. Mr. Browns decision seems to have been overruled by Mr. Quintin, mainly on the ground that it proceeded on his construction of the settlement without regard to the evidence of possession..

68. Then followed the proceeding of the Deputy Collector, Surfraez Ali of the 29th of December, 1847, in which there may be some false reasoning as to some of the points before him, but which clearly establishes that the Ghauts there claimed as comprised in the settlement of 1844, were the Ghauts of those names in the disputed territory, and were sworn to by Soobahdar Khan, who seems to have ceased to have any interest in the question, to be the Ghauts that were comprised in his lease. It seems very difficult to question the finding of this Officer making a local investigation, that the identity of the Ghauts claimed with those settled was made out.

69. Again, Captain Sherwill, the Revenue Surveyor, was a European Officer of rank and of scientific reputation. He is at least entitled to credit for knowing his own business of topographer. He seems to have come by another road to the same conclusion as the Ameens, viz., that a large hilly district belonging to Havelee, and comprising these Ghauts, had been omitted from Elliss map. He may be no authority touching questions of property, but he must at least be taken to have laid down accurately in his map the positions of the Ghauts known in the district as Marug, Kurrailee, and by other names, about which the parties were disputing before the Ameen. His personal examination of the district is recorded in Mr. Quintins final proceeding of the 24th June, 1848, at p. 171. On the other hand it is to be observed that Captain Elliss map does not profess to fix the sites of these Ghauts. Their existence within its boundaries is mere matter of speculation suggested by the ingenious and able argument of the Attorney-General, who did not attempt to point out precisely where they were situate.

70. This evidence, however, seems to us to point for the most part rather to what was claimed as belonging to Havelee than to the nature and character of the Bunkur and Boundee Mehals above mentioned, and of the revenue arising from the Ghauts, of which, in part at least, they consisted; and certainly it does not satisfy us that Havelee, if entitled to any part, was entitled to the whole of the land in question in right of these Bunkur and Boundee Mehals and Ghauts. It is to be remembered that we have here to deal with a tract of land of enormous extent surrounded by Havelee and other Pergunnahs, and it is not easy to suppose that so large a tract of land should have escaped the attention of Captain Ellis, if the whole of it belonged to Havelee at the time of its being resumed; neither can we easily suppose that this large tract of land could have been intended to have been included in the Havelee settlement under the description of Sayers and cesses, when we find that other land of precisely the same quality and character was in that settlement described as land. We find, too, that the Officers of the survey have, as we have already pointed out, given to Havelee more than in our opinion belongs to it, and looking to the whole of the evidence in the case, we cannot see our way to conclude judicially that they have been right in giving to it the rest of the land in question.

71. We agree, indeed, with the majority of the Sudder Judges, that the Appellant has failed to prove that no part of the disputed territory was included in the settlement, and that he has failed to prove by independent evidence his right to recover the Mouzahs specified in the plaint; but we cannot think that they were right in determining the case upon the mere failure on his part to support the burthen of proof cast upon him. Their judgment is not like one in ejectment under the old procedure; it is as final and conclusive between the parties as an adjudication on the merits would be And its effect, as we have shown, is to give to Havelee some things which, on the evidence, we think belong to the Nizamut Mehals.

72. In these circumstances, the case, we think, is one which calls for further inquiry; but in saying this we by no means mean to intimate that the Appellant can be relieved from the burthen of proof. On the contrary, we think that there has been so much of possession on the part of Havelee that the burthen of proof must still rest upon the Appellant.

73. For the reasons which we have given, we think that this decree cannot be supported in its integrity, and the Order which we shall humbly recommend Her Majesty to make upon this appeal will be,-

74. To reverse the decree, but without prejudice to any question which may arise upon the inquiries to be made as after directed;

75. To declare the Appellant entitled to the Mouzahs Goormah and Ghorakhore, and the lands comprised therein and belonging thereto, and to all such other parts of any of the lands in question in the suit as are not included in the settlement of Havelee;

76. To declare that the settlement of Havelee comprises only the measured area of 123,207 beegahs, and so much of any of the land in dispute as upon the inquiries after directed may appear to belong or be properly attributable to the Bunkur and Boondee Mehals in the pleadings mentioned, or to the Ghauts, of which the same in part consist; and that the rights of Havelee in respect of Bakum do not extend beyond the 129 beegahs and 19 biswas mentioned in Beadons settlement, and which are included in the 123,207 beeghas;

77. To inquire what is the nature and character of the Bunkur Boondee Mehals and of the Ghauts comprised therein respectively which are included in Pirons settlement, and are therein estimated at S. Rs. 1,116; and whether the same, or any, and which of them, included any and what part of, or any and what right or interest in the land in question in this suit;

78. To declare that so much of the land in question in this suit as may upon such inquiry appear to be comprised in the said Bunkur and Boondee Mehals or Ghauts belongs to Havelee, and that the Appellant is entitled to recover the residue of the land in question, and to direct the Court to proceed in the suit as upon the result of such inquiry may appear to be just.

79. To direct any costs of the suit already paid to be refunded, and the Court to deal with such costs, and all other costs of the suit, including the costs of this appeal, as may seem just, having regard to the declarations aforesaid, and to the result of the said inquiry. To declare that this Order is to be without prejudice to any proceedings which may hereafter be taken for the settlement of Havelee.