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1. This appeal arises out of a suit brought against the Secretary of State for India in Council by the plaintiff, appellant, to establish his title to certain lands, and to obtain certain declarations, the most important of which are that the 3aid lands are included in plaintiff's taluk Shermast Khan, and that the Government has no right to resume any lands of the said taluk, or to assess any rent on the same, otherwise than under the terms of a certain kabuliat of the 9th of November 1836.

2. The material allegations upon which the plaintiff bases his right to the reliefs claimed are, that taluk Shermast Khan is the purchased ancestral property of the plaintiff; that the taluk has been in existence from before the Decennial Settlement; and in 1162 Maghi, that is 1800, a jummabundi was made by which 41 odd drones of land of the said taluk were assessed at Rs. 15-14-16 gandas per drone and a jumma of 659-6-2 pies was fixed: that in 1197 Maghi, that is 1835, the taluk was measured again and found to contain 79 odd drones of hasila or culturable lands, and 137 odd drones of waste land, and Government on the 9th of November 1836 took from the taludar a kabuliat fixing the jumma at Rs. 1,267-4-2 pies (in sicca or Company's coin), which was made up of the old jumma of Rs. 659-6-2 sicca and an additional jumma of Rs. 607-14-0 in Company's coin at the rate of Rs. 16 on the excess of 37 odd drones in the culturable area; that the kabuliat contains a stipulation that any additional land that might be found, on future measurement, to have been brought under cultivation was to be assessed at the rate of Rs. 16 a drone; that out of the jumma fixed by the kaubuliat, a certain deduction on account of bat khila or waste land being made, the sum of Rs. 1,101-8-6 pies continued to be the jumma payable and was actually paid; that at the recent survey, the mehal was improperly recorded as the khas property of Government, and the plaintiff was, by a notice, dated the 26th July 1892, and by a proceeding, dated the 6th August 1892, required to take a fresh settlement, on the ground of the former settlement having expired; and that these alleged illegal proceedings have endangered the plaintiff's permanent right to taluk Shermast Khan.

11. It has, in our judgment, been established that taluk Shermast Khan is not shown to have been in existence from before the Decennial Settlement. The earliest settlement of taluk Shermast Khan, that is mentioned or referred to, is that of 1800 by Mr. Kerr, Collector of Chittagong. We have not before us the papers of 1800, nor was any application made by the plaintiff for the production of these papers, until after he had closed his case, and it may well be that he was not very anxious to have them produced lest they might prejudice his case. It must be remembered that the plaintiff claims a permanent talukdari right, not merely in the 41 odd drones settled as taluk Shermast Khan, at a rent of Rs. 659 odd in 1800, but in an area of 578 odd drones. Be that, however, as it may, we should have felt inclined to give effect to the argument that, from the proved existence of taluk Shermast Khan in 1800, a reasonable presumption arose in favour of its existence before that date, were it not for the fact that, as appears from the settlement proceedings of Mr. Harvey, Collector of Chittagong, dated the 21st of November 1836, which is the earliest document showing the existence of the taluk in 1262 Maghi or 1800 A. De, the taluk had no existence in 1150 Maghi or 1788 A.D., there being no mention of it, though there is mention of certain other lands specified as lakhiraj in the name of Shermast Khan in the survey of 1788, which was the next preceding survey and of which the particulars are given in the proceedings. And it may be noticed that in the survey proceedings of 1162 Maghi (A.D. 1800), a distinction is drawn between noabad lands such as those now in suit, and lakhiraj lands. The interval between 1788 and 1800 was not long, and it is not suggested that there was any survey or settlement between these two dates. It cannot, therefore, be reasonably inferred that taluk Shermast Khan was formed before 1800.

12. Nor can the directions of the Board of Revenue under which Mr. Kerr acted, on settling taluks in 1800, warrant our holding that the settlement of taluk Shermast Khan was a settlement in perpetuity. Those directions which have been copiously referred to on both sides from the abstract given of them in the report of the case of Vakeel of Government v. Rajesree Debea (2 Sel. Rep., S.D.A., New Ed., 199) will be found at pp. 349 and 350 of the Paper Book.

13. These directions, as we gather from the memorandum of Mr. Walters, dated the 5th of November 1837 (Ex. D.) para. 8 and from Mr. Cotton's note, para. 6 (p. 222 of the Paper Book) which were referred to on both sides, were issued in 1796 or 1797; so that the latest measurement before they were issued was the measurement of 1788, and the only lands that could come under the first description referred to in the above extract, would be lands measured in 1788, all lands not covered by the measurement of that year being included in the second description. Now the lands of taluk Shermast Khan were not included in that measurement, for the measurement papers are silent as to them, and so they did not fall under the first description, and the direction for the grant of a perpetual pottah could not apply to them. It was argued for the appellant that the land of taluk Shermast Khan should be taken as coming under the first description as having been permanently settled, and, as being land which "had been reduced to cultivation since the last measurement," that is, the measurement of 1788, and that it could not come under the second description because it was settled, not in small portions but as in one large area, and the rent was made payable not after three years but at once, which could not have been the case if the land had been of the second description. The first branch of this argument is, in our opinion, unsound. The only lands that could come under the first description, as being lands which had been reduced to cultivation since the last measurement, are those which had already been included in the measurement of some taluk, but which had not been assessed owing to their not having been brought under cultivation, and the land settled as taluk Shermast Khan in 1800 was not of this class. As to the second branch of the argument, if the fact of the land being a large area of 41 drones, and being assessed with the rent of Rs. 659 odd payable at once, militates somewhat against the view of its being temporarily settled as land of the second description, the fact of its being re-measured and re-assessed in 1176 Maghi, that is in 1814, as a smaller area of 29 drones for a smaller rent of. Rs. 460 odd (as appears from the settlement proceeding of 1836, Ex. I, p. 15), and the fact again of the rent being changed from Rs. 1,311-3-5 to Rs. 1,101-8-6 (see Ex. I, para. 16 and the plaint, para. 4) and of the rate being changed from Rs. 15-14-16 sicca to Rs. 16 Company's coin (see kabuliat Ex. III and Ex. I, para. 13), are wholly inconsistent with the theory of a perpetual settlement of the taluk in 1800.