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CIVIL APPELLATE JURISDICTION Civil Appeal No. 1649 of 1966.

Appeal from the judgment and Decree dated the January 24, 1962 of the Calcutta High Court in First Appeal No. 24 of 1951.

P. Chatterjee, S. C. Majumdar, Padam Bindu Chatterjee and R. K. Jain, for the appellants.

A. N. Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shah, J. On December 17, 1945 Raja Bhupendra Narayan Sinha commenced an action in the Court of the Subordinate Judge, Murshidabad against the Province of Bengal, for an order de- claring that he "is entitled to abatement out of the revenue- payable by him for Pargana Goas Tauzi No. 523 of the Murshidabad Collectorate on account of resumption of 11 Ferries lying within Huda Alaipur to the extent of Rs. 4,800/,- per annum", and for a decree "refunding excess revenue realized by the Province of Bengal". Raja Bhupendra Narayan Sinha died during the pendency of the suit and his legal representative Rajendra Narayan Sinha prosecuted the suit. The suit was resisted, after the Indian Independence Act, by the State of West Bengal. The Subordinate Judge decreed the suit. He awarded to the plaintiff a decree for " abatement of revenue payable by the plaintiff in respect of the estate "bearing separate account No. 523-3 in consequence of resumption by the Government of 11 ferries referred to in the plaint to the extent of Rs. 4800/'- per annum", and a decree for Rs. 14,440/- being the amount of revenue recovered during three years immediately preceding the institution of the suit. In appeal the High Court of Calcutta reversed the decree and dismissed the plaintiff's suit. The plaintiff has appealed to this Court with certi- ficate granted by the High Court.

There is not much dispute about the facts which gave rise to the claim. By Regulation 1 of 1793 called "The Bengal Permanent Settlement Regulation 1793", the Governor-General in Council (,gave legislative recognition to the Proclamation previously addressed to the zamindars, independent Talukdars and other actual proprietors of land paying revenue to Government in the Province of Bengal. Thereby, inter alia the Jamma assessed upon the lands under the permanent settlement was to be continued after the expiry of the period of the current decennial settlement, and to remain unalterable. The amount payable to the Government for the Pargana Goas was determined at the time of permanent settlement at (Sicca) Rs. 99,160/1 1 / 1 1 3/4 Gondas. The Pergana consisted of 12 Hudas or groups of Mouzas, one or 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 Company's Rupees, and-in view of the change in the coinage for every 15 Sicca Rupees 16 New Company's Rupees were payable. The revenue assessed in respect of the 11 ferries was accordingly fixed at Company Rs. 4,800/-. 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 zamindars 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 claimed 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, plaintiff's predecessor-in-interest the Court of Wards which was in management for a long time since the year 1860, and Raja Bhupendra Narayana 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.

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 Mur- 5 40 shidabad 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 Mursbidabad 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 plaintiff's suit.

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 of the 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 paper; that the suit filed by 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 favorite of the plaintiff, and the remaining in favour of the State. The High Court held that the compensation amounting to Rs. 53,923-4-6 which was ten, times the gross collection from the 11 ferries in the year after resumption included the value of the Tight 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. 'Ferry' means "the right to keep a boat for ferrying passengers, to charge tolls for so doing, and to prevent other persons from setting up another ferry so near and in such a state of facts as to diminish the custom, is a franchise. It can be created only by grant from the Crown, by prescription or by statute" : Dictionary of English Law by Earl Jowitt. In India the right to ferry is in the nature of a monopoly which entitles a ferryman to carry exclusively and to collect tolls for carriage of passengers, animals or goods carried over the line of the ferry. The Calcutta High Court in Nityabhari Ray and Ors. v. Dunne and Others(2) elaborately examined the origin of the right to ferry in Bengal. The Court observed "One of the first rules which the Government promulgated in 1772 was to suppress the sayer duties levied in Bengal. On the 11th June 1790 a regulation was promulgated for the guidance of the Board of Revenue with reference to sayer or internal duties. That Regulation was principally directed against such sayer duties as were levied in hats or bazars, and the Government, although it expressly declared in it that the imposition and collection of internal duties of any kind were exclusively its own privilege and could not be exercised by any subject without express sanction yet, in the interest of the landlords, it adjudged it advisable to interfere as little as possible with the imposition they levied. This, therefore, is an express declaration of Government that the Dewani had never re-cognized in private individuals the right to levy any tolls of the denomination of saver, and this is repeated in the preamble to Regulation XXVII of 1793. When th e Permanent Decennial Settlement was made, the re venue of such zamindari ghats as were allowed was take n as an item of the assessment and granted to the Zamindar. In Regulation XIX of 1816.