1. This is an appeal by the Secretary of State for India in Council, who was the defendant in a suit instituted by the plaintiff-respondent with a view to test the legality of an assessment of revenue made under the Bengal Alluvion and Diluvion Act (IX of 1847). The case for the plaintiff is that the disputed lands, which have been constituted into a new estate and assessed with revenue, belonged to him by virtue of his Zemindari right in Touzi No. 105 of the Collectorate of Pabna. The plaintiff maintains that the assessment could not have been validly made under the provisions of Act IX of 1847, as the lands are not 'added' lands within the meaning of that Statute, but are re-formations in situ. The plaintiff seeks, in addition, consequential relief by way of recovery of possession and mesne profits. The claim is resisted on behalf of the Secretary of State substantially on the ground that the disputed lands formed the bed of the river Ganges, locally known as Padma, at the time of the Permanent Settlement, and were not included in the estate settled with the predecessor of the plaintiff; the lands were thus not assessed with revenue at that time, nor have they been so assessed at any subsequent period. On these pleadings, the substantial question in controversy was formulated in the third issue in the following terms:
Do the lands in suit appertain to estate No. 105 of the Pabna Collectorate, and were they assessed with revenue at !the time of the Permanent Settlement of that estate? Did these lands form part of a large navigable river at that time?
2. The Subordinate Judge has, after an elaborate enquiry, answered this question in favour of the plaintiff in respect of considerable portion of the disputed lands and has declared his title thereto as re-formation in situ of his permanently settled villages Nandalalpore, Paranpore and Sibrampore lying towards the north of a line S.R. drawn on the map of the Commissioner. Subordinate Judge has also granted the plaintiff consequential relief on this basis, the correctness of the conclusion of the subordinate Judge has been assailed in this appeal on behalf of the Secretary of State.
3. An additional point not taken in the memorandum of appeal, nor raised in the Court below, has been mentioned in the course of argument, namely, that the suit should have been dismissed as barred by limitation under Section 24 of Regulation II of 1819. This point, in our opinion, cannot be taken by the appellant for the first time in the course of argument here. The case for the appellant that as the final Order A Board of Revenue was made on the 25th January 1912 and the suit was not instituted till the 15th November 1915, that is, long after the expiry of the period of one year mentioned m Section 24 of Regulation II of 1819, as interpreted in secretary of State for India v. Profulla Nath Tagore 58 Ind. Cas. 896 : 24 C.W.N. 809 and Profulla Nath Tagore v. Secretary of State for India 58 Ind. Cas. 902 : 24 C.W.N. 813, the claim should be dismissed as barred by limitation, the substance of the matter, then, is that it is sought to be argued on behalf of the Crown that the suit is barred, not under Article 14 of the Schedule to the limitation Act, but by the provisions of Section 24 of Regulation II of 1819. That point was not taken before the lower Court; it has not been taken in the grounds of appeal to this Court, nor has notice been given to the respondent of the intention of the appellant to ask the leave of the Court to take this additional ground. Apart from this, a Court of Appeal will not allow such a point to be raised, if it involves the determination of questions of fact. A new point may be allowed to be raised by a party for the first time in appeal or second appeal, if it is a pure question of law and does not take his opponent by surprise: Basant Singh v. Mahabir Pershad 19 Ind. Cas. 571 : 31 C.L.J. 259 : 47 C. 733 : 17 C.L.J. 566 : 17 C.W.N. 669 : (1913) M.W.N. 481 : 11 A.L.J. 469 : 17 C.L.J. 566 : 15 Bom. L.R. 525 : 16 O.C. 136 : 14 M.L.T. 64 : 25 M.L.J. 301 (P.C.), Ram Kissen v. Pooran Mull 56 Ind. Cas. 571 : 31 C.L.J. 259 : 47 C. 733, Balaram v. Mangta Das 34 C. 941 : 6 C.L.J. 237 : 11 C.W.N. 959, Meenakshinaidoo v. Subramaniya Sastri 14 I.A. 160 : 11 M. 26 : 5 Sar. P.C.J. 54 11 Ind. Jur. 393 : 4 Ind. Dec. (N.S.) 18 (P.C.), Connecticut Fire Insurance v. Kavanagh (1892) A.C. 473 : 61 L.J.P.C. 50 : 67 L.T. 508 : 57 J.P. 21. But the position is very different when the new plea raises a question of fact or mixed question of fact and law: Narayana v. Chengalamma 10 M. 1 : 3 Ind. Dec. (N.S.) 751, Sita Ram Nathmal v. Sushil Chandra Das & Co. (?)63 Ind. Cas. 813 : 43 A. 553 (?) : 19 A.L.J. 495. In the present case, the objection attempted to be taken involves at least three questions of fact, namely, (I) whether the decision of the Board was communicated to the respondent, if so, on what date; (II) whether there are any facts which bring the case within the proviso to Section 24; and (III) whether there are any facts which make Section 31 applicable. Consequently, if the point were allowed to be taken under Order XLI, Rule 2, a remand would be inevitable. There is no explanation why the point was not taken in the lower Court or in the memorandum of appeal here; on the other hand, the respondent urges with good reason that a litigation which has already lasted for nearly seven years should not be further prolonged merely to enable the defendant to take a new point. We are of opinion that leave should not be granted under Order XLI, Rule 2. We need not accordingly examine the reasoning whereon the decisions in Secretary of State for India v. Profula Nath Tagore 58 Ind. Cas. 896 : 24 C.W.N. 809 and Profulla Nath Tagore v. Secretary of State for India 58 Ind. Cas. 902 : 24 C.W.N. 813 are founded; and we shall now proceed to consider the case on the merits.
4. The Subordinate Judge has described in his judgment how the disputed lands have been subject to the action of the river in recent years, how the river has shifted its bed in 1876, 1881, 1896, 1911, and how the lands have re-formed and disappeared from time to time. This history does not bear directly on the question whether the disputed lands were dry lands at the time of the Permanent Settlement and were included in the estate granted to the predecessor of the plaintiff, or whether the lands were at that time in the bad of a public navigable river and were consequently not only not assessed with revenue but 'were excluded, from the permanently settled estate. The most valuable evidence for the solution of this problem would have been the papers relating to the Decennial Settlement and the Permanent Settlement of the estate. These are in the custody of the officers of the Crown and have not been brought before the Court, though every effort was made to secure their production. The quinquennial papers and the hakikat chauhaddibandi papers, which would have afforded valuable evidence of the condition of things shortly after the Permanent Settlement, have also been kept back on behalf of the Crown. We agree with the Subordinate Judge that this omission on the part of the officers of the Crown is a matter for legitimate comment. Jurisdiction may be assumed on behalf of the Crown under Act IX of 1847, only in the lands which are sought to be resumed and assessed with revenue are 'added' lands within the meaning of the Statute; when that jurisdiction is challenged, it is incumbent upon the Crown to establish that the disputed lands are 'added' lands, that is, lands not included in the original assessment; see Secretary of State v. jatindra Nath 58 Ind. Cas. 778 : 24 C.W.N. 737, Secretary of State v. Fahamidannissa Begum 17 I.A. 40 : 17 C. 590 : 5 Sar. P.C.J. 391 : 8 Ind. Dec. (N.S.) 933 (P.C.), Haradas Acharjya Chowdhuri v. Secretary of State 43 Ind. Cas. 361 : 26 C.L.J. 590 : 22 M.L.T. 438 : (1918) M.W.N. 28 : 20 Bom. L.R. 49 (P.C.). and Secretary of State for India in Council v. Maharaja of Burdwan 67 Ind. Cas. 835 : 48 I.A. 565 : 35 C.L.J. 92 : 42 M.L.J. 61 : 4 U.P.L.R. (P.C.) 1 : 26 C.W.N. 619 : (1922) A.I.R. (P.C.) 6 : 49 C. 103 (P.C.). If, in such circumstances, the relevant papers are withheld, the Court cannot but draw an inference adverse to the defence set up by the Crown. In this connection, we may usefully re-call the emphatic disapproval, expressed by Lord Shaw in Murugesam Pillai v. Gnana Sambanda Pandara Sannadhi 39 Ind. Cas. 659 at p. 661 : 44 I.A. 98 : 40 M. 402 : 25 C.L.J. 589 : 21 M.L.T. 288 : 32 M.L.J. 569 : 15 A.L.J. 281 : 1 P.L.W. 457 : 5 L.W. 759 : 21 C.W.N : 761 : 19 Bom. L.R. 456 : (1917) M.W.N. 487 (P.C.) of the practice, in which has grown up in Indian procedure, of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof and failing accordingly to furnish to a Court of Justice the best material and the best assistance for its decision. We need hardly emphasise that if the carriage of a suit or conduct of a defence in this style by a private litigant merits such disapprobation, similar management of a judicial proceeding on behalf of the Crown cannot escape without equal condemnation. In the case before us, the Trial Court has been constrained to adjudicate on the rights of the parties on such materials as have been available, other than what would have been the primary and best evidence.
5. The earliest documentary evidence produced before the Court is the map prepared by Major Rennell on the basis of a survey of that part of the country made in 1764. The Subordinate Judge found it difficult to secure an accurate reproduction of the lines of the map and thought it extremely hazardous to rely upon that map as plotted in this case. The course followed, by the Subordinate Judge is identical with that adopted by this Court in Secretary of State v. Kalika Prosed 14 Ind. Cas. 609 : 15 C.L.J. 281, where it was pointed out that it was impossible to determine with any approach to accuracy from Rennell's map the position, boundaries and size of the mousas at the time of the Permanent Settlement. The decree in the case mentioned was, however, reversed by the Judicial Committee on appeal: Haradas Acharjya Chowdhuri v. Secretary of State 43 Ind. Cas. 361 : 26 C.L.J. 590 : 22 M.L.T. 438 : (1918) M.W.N. 28 : 20 Bom. L.R. 49 (P.C.). It was conceded-that Rennell s map, owing to its difference in scale, to the different purpose of its preparation, and to the difficulty of assigning fixed points from which the survey was made, was undoubtedly a map which it was hard to incorporate into a later, survey. Yet the Judicial Committee proceeded to adopt the position of the river as shown on Rennell's map and to adapt that map as far as possible TO the conditions now known to exist. We are of opinion that the Subordinate Judge might well have followed the course which commended itself to the Judicial Committee, and utilize Rennell's map as far as practicable; that would only have confirmed the conclusion ultimately reached by him on the basis of the other evidence on the record. The course of the river, as shown on Rennell's map, and the situation of the villages as depicted thereon, though their boundaries are not stated, do not by any means support the contention that the locality where the disputed lands lie was at the time in the bed of the river. On the other hand, the indications are all in favour of the view that the river did not at that time flow over these lands. We see no sound objection to the use of Renuell's map in the manner and to the extent thus indicated. We find, in fact, that in 1896, Rennell's map was relaid by the Revenue Authorities and the report of the Collector forwarded to the Commissioner on the 3rd November 1896, shows that Rennell's map was used to determine the situation of the mouzas relatively to the course of the river. The same course had been followed in 1881, and there is no reason why the map should not be used for a similar purpose now as in 1881 and 1896.
6. The next document which has an important bearing on the question of the location of the mouzas initially comprised in the estate now held by the plaintiff, is the mouzawari register of 1827. 1827 register shows the area and the boundaries of the villages at that time. It was kept apparently under Regulation V of 1816 which was extended to the entire Province by Regulation I of 1819. The document was in the custody of the Collector and its authenticity and probative value have never been questioned by successive Revenue Officers; indeed, some of them have thought that the register was of special value as probably based on the decennial papers. The entries in this register practically demolish the case for the Crown, and every effort that ingenuity could suggest was made by the legal advisers of the Crown in the Court below either to keep out the document or to cast doubt upon the meaning or accuracy of the entries. The. Subordinate Judge has, however, correctly held that criticism of this character does not carry weight. On the other hand, the judgment of Mr. K.J. Badshah, Assistant Collector, dated 5th July 1881, shows that the register books of the Decennial Settlement were in existence at the time and furnished figures for the areas of the villages which are in agreement with the figures in the mouzahwari register. The entries in the register could, have been contradicted in the present, suit by the production of the papers of the Permanent and Decennial Settlement and also of the quinquennial papers and the hakikat chauhaddibandi papers. The Subordinate Judge has further held that the standard of measurement, when the mouzah-wari register was framed, was a cubit of 21 and. not 18 inches. The total area of the Mouzas Nandalalpore. Paranpore and Sibrampore, which, according to the plaintiff, includes the lands now claimed as re-formation in situ, was about 3,650 bighas or according to standard measurement 4,968 bighas. We shall see presently that the area had diminished when the survey operations were carried out about a quarter of a century later. The that maps, which were prepared in 1849, show that large areas of these villages were diluviated, while the survey maps prepared in 1854 show that about 2,385 bighas had been swept away, leaving about 2,582 bighas as dry land. But it has been argued on behalf of the Secretary of State that we should presume that the estate was, at the time of the Permanent Settlement, in the same condition as at the time of Revenue Survey in 1854, and reference has been made in support of this proposition to the judgment of the Judicial Committee in Jagadindra Nath Roy v. Secretary of State 30 I.A. 44 : 7 C.W.N. 193 30 C. 291 : 5 Bom L.R. 1 (P.C.). That judgment is clearly of no assistance to the appellant. Lord Lindley pointed out that it could not be maintained as a matter of law that the that and survey maps constituted sufficient proof that what was part of the bed of the river at that time was included in the Permanent Settlement of 1793; and, no Court could properly act on the assumption that in 1793 a state of things existed different from what appeared from any evidence before the Court: See Pro Julia Nath Tagore v. Secretary of State 58 Ind. Cas. 902 : 24 C.W.N. 813. Indeed, if we are to apply the doctrine of presumitur retro enunciated by Lord Watson in Anangamanjari Chowdhrani v. Tripura Sundari Chowdhrani 14 C. 740 : 14 I.A. 101 : 11 Ind. Jur. 361 : 5 Sar. P.C.J. : 45 : 7 Ind. Dec. (N.S.) 490 (P.C.), and if we start backwards from 1854 and pass through 1849, our progress is arrested in 1827, when we find from the mouzahwari register that the lands of the mouzas were dry lands not yet diluviated. If, from that stage we proceed further backwards, we must apply the presumption that in 1789 and 1793 the condition of things was identical with that in 1827. If we proceed further backwards, we find affirmative evidence in Rennell's map that the condition in 1764 was the same as in 1827. The process of reasoning we have described is nothing beyond an application of the elementary principle that proof of the existence at a particular time of a fact of a continuous nature gives rise to a rebuttable presumption, within logical limits, that it exists at a subsequent time or has previously existed. The limits of time within which the inference of continuance possesses sufficient probative force to be relevant, must obviously vary with each case--always strongest in the beginning, the inference steadily diminishes in force with lapse of time, at a rate proportionate to the quality of permanence belonging to the fact in question, until it ceases or perhaps is supplanted by a directly opposite inference. To put the matter concisely, it will be inferred that a given fact or set of facts, whose existence at a particular time is once established in evidence, continues to exist as long as such facts usually exist; see Reg. v. Willshire (1881) 6 Q.B.D. 366 : 14 Cox C.C. 541 : 50 L.J.M.C. 57 : 44 L.T. 222 : 29 W.R. 473 : 45, Marine Investment Co. v. Haviside (1872) 5 H.L. 624 : 42 L.J. Ch. 173 and Pickup v. Thames Marine Insurance Co. (1878) 3 Q.B.D. 594 : 47 L.J.Q.B. 749 : 39 L.T. 341 : 26 W.R. 89 : 4 Asp. M.C. 433. Reference may also be made to Doe d. Hopley v. Young (1845) 8 Q.B. 63 : 70 R.R. 415 : 15 L.J.Q.B. 9 : 9 Jur. 941 : 115 798 where Coleridge, J., said, 'the inference may be carried upwards as well as downwards.' This inference of continuance, whether backwards or forwards, whether upwards or downwards, is an inference of fact and may therefore, be rebutted. In the light of these general principles, the position in the present case may be summarised as follows:
8. Point No. 1--1764--Rennell's map--Dry land.
9. Point No. 2--1789--Decennial Settlement.
10. Point No. 3--1793--Permanent Settlement.
11. Point No. 4-1827--Mouzawari register--Dry land.
12. Point No. 5--1849--Thack map--land under water.
13. Point No. 6--1854--Survey map--land under water.
14. The unknown quantity for determination is the state of the mouzas at points Nos. 2 and 3. Points Nos. 1 and 4 are known quantities. The presumption is legitimate that the condition from 789-93 was not different from what preceded in 1764 and what followed in 1827. It was open to the Crown to rebut the presumptipn of continuity by the production of the papers of the Decennial and Permanent Settlements and also of the quinquennial papers and the chauhaddibandi papers. That evidence has not been produced in rebuttal, and the argument is futile that the Court should presume that the conditions were identical in 1789 and 1849 when there is positive evidence of a contrary state of things in 1764 and 1827. We ate consequently of opinion that the Subordinate Judge has correctly held that the lands specified in his decree were re-formation in situ of the estate held by the plaintiff and that the assessment imposed thereon by the Revenue Authorities was ultra vires.
15. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs. The hearing fee will be assessed at 15 gold mohurs.