12 October 1970
Supreme Court


Case number: Appeal (civil) 1649 of 1966






DATE OF JUDGMENT: 12/10/1970


CITATION:  1971 AIR 1245            1971 SCR  (2) 537

ACT: Ferries   in   Zamindari-Revenue   payable   to   Government separately assessed-Ferries resumed by  Government-Abatement of   revenue-Suit   for  recovery  of   revenue   collected- Jurisdiction of Civil Courts Limitation.

HEADNOTE: The  predecessors-in-interest  of the  appellant,  who  were zamindars  of  Pargana Goas were in  possession  of  certain ferries  and were receiving income by letting out the  right to transport passengers and goods and by levying toll on the ferries.   The revenue payable to the Government in  respect of  the  ferries was separately assessed at  Rs.  4800,  The right  to the ferries was recognised as a right to  property and,  therefore, when, between the years 1857 and  1860  the ferries  were declared public ferries by the  Government  of Bengal,  under Regulation VI of 1819, the then zamindar  was paid  Rs.  53,000 odd as compensation being  ten  times  the income received from the ferries in the year next after  the resumption  by the Government.  Since on the  resumption  no abatement  of revenue payable in respect of the ferries  was granted,  the  then zamindar claimed  such  abatement.   The claim  was not refused by the Government but they  collected the revenue under coercive process. The  appellant’s predecessor filed a suit in  1945  claiming the  amount of revenue recovered from him in excess  of  the amount  lawfully  due from him, and also for  a  declaration that  the revenues stood abated.  The  respondent  contended that  the  compensation paid was nearly  hundred  times  the amount of the net annual profits from the ferries and  that. therefore, the amount of compensation must have included the capitalised  value of the abatement of revenue  payable  for the  ferries.  The respondent also contended that  the  suit was  barred  by limitation and that the civil court  had  no jurisdiction. The  trial  court gave a decree for Rs. 14,440/-  being  the amount  for  three years immediately preceding the  date  of suit and also declared that there was a complete  extinction of  the liability to pay revenue in respect of the  ferries. The High Court, in appeal, reversed the decree. In appeal to this Court, HELD  : (1) There is nothing in the correspondence  relating



to   the  resumption  of  ferries  to  indicate   that   the compensation  was  to  include  the  capitalised  value  for abatement  of  revenue.  In the absence of any  evidence  to prove  that  the Government took into account the  value  of abatement  of  revenue and that the  zamindar  received  the compensation  agreeing  to  pay the revenue  in  respect  of ferries resumed, the conclusion inevitably followed that  on the  resumption  or  acquisition  of  the  ferries  by   the Government,  the  zamindar ceased to be liable  to  pay  the annual  revenue  assessed  upon  the  ferries.   No  adverse inference  against  the appellant could be  drawn  from  the delay in making, the claim for abatement of revenue. [545 D- G] 538 (2)  A right to collect revenue which is not due  cannot  he acquired  by  prescription  and if  the  appellant  and  his predecessors had been compelled to pay SLIMS of money  which they  were  not  liable to pay the claim  for  refund  Could properly  be made within three years from the date on  which the payment was made, and to the claim for a declaration  of it right to abatement, there is no bar of limitation.   Each demand for recovery by the Government confers a fresh  cause of action,[1546A-C] (3)  Regulation  19 of 1816, Regulation 6 of 1819, Act 1  of 1886 and the rules in the Bengal Tauzi Manual, 1940. do  not indicate  that  the  jurisdiction of  the  civil  court  was excluded  in  respect of matters relating  to  abatement  of revenue.   The decision in Secretary of State for  India  in Council v. Maharajadhiraja Kameshwar Singh Bahadur I.L.R. 15 Pat. 246 has no hearing on the present case. [1547 F; 548 D- F; 549 A-F]

JUDGMENT: 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 541 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.               Section 9,      there was a distinct admission               of  this  practice.  It enacted  that  if  the               profits derived from any resumed ferry   may               appear to have been included in the Permanent     as sessment               of the estate to which it has been  heretofore               annexed, the Board, or Commissioner, under      whos e               orders  the  inquiry into the  nature  of  the               ferry      was conducted, must report the case               for the orders of    the  Governor-General  in               Council.........               (1)   1. L. R. 18 Cal. 652.               542               After the time of the Permanent Settlement the               same  ferries were established  by  enactment.               The first Regulation is XVIII of 1806,  which,               dealing  with ferries in the same category  as               tolls on boats passing through canals, enacted               that  ferries should be established at  places               convenient  for  the  public  within  the  24-               Pargunnahs, and fixed the rates payable to the               ferryman.........   In  1816  the   Government               considered  it  expedient  that  all   ferries               should be placed under complete control of the               Collectors of Land Revenue.  Every owner of  a               ferry was licensed, and other person plying  a               boat  for hire was liable to be convicted  and               fined . . . . . . . . I and the boat was to be               confiscated.   This Regulation continued  till               1819, when it was repealed by Regulation VI of               that  year, and the ferries were  then  placed               under  the superintendence of the  Magistrate.               All  important ferries were  declared  public,               and  these  the Magistrate had  the  power  to               resume.  Other ferries of an unimportant  kind               were  not  interfered with  further  than  was               necessary  for the maintenance of  the  police               and the safety of passengers and property." 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 ferries was separately assessed; and (2) that the right of ferry was recognised as a right to property for



resumplion 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 plaintiff’s  predecessors. The  right lo the ferries was resumed by the  Government  in exercise of the power conferred by Reg.  VI of 1819 and  the right of the Zamindari   to receive compensation for loss of the right wis 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.   To meet  this  argument, Counsel for the State of  West  Bengal urged  that within the amount of compensation determined  to be payable to the Zamindar consequent upon resumption of the ferries, was included the capitalized value of the abatement of  revenue payable for the ferries.  Counsel said that  the Government  paid  to  the Zamindar  for  resumption  of  the ferries  Rs.  53,923.40 which was ninety one times  the  net profit 5 4 3 made  by the Zamindar annually.  He contended on that  hypo- thesis that compensation computed on the basis of ten  times the  gross  profit earned by the Zamindar, could  only  have been intended to be paid to compensate the Zamindar for  the loss of the right to the ferries as well as the  capitalized value  of  the  revenue attributable to  the  ferries.   The 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. The correspondence in relation to resumption of the  ferries may be summarised.  Exhibit C dated June 9, 1854 is a  peti- tion  filed  by Rani Phul Kumari who was then the  owner  of Paragatia  Goas.   It is recited in the  petition  that  the ferries  had  ceased  to be public ferries  when  they  were restored to the applicant’s ancestors in the year 1819 under the  orders  of the Governor-General in  Council,  and  the, ferries  had  since  been continued in  her  occupation  and possession.  But by an order of the Magistrate of  Rajshahye which was confirmed by the Superintendent of Police the rate or neerick of the ferries had been considerably lowered  and the result of the interference was that the ferries  instead of  being  a source of profit were onerous and a  source  of expense  and  trouble.   The applicant  requested  that  the complaint  ’be  investigated and if the complaint  be  found true, the applicant may be relieved of payment of the Suddur Jumma i.e. revenue.  In a letter dated August 7, 1854 to the Secretary  to  the  Board of Revenue,  the  Commissioner  of Nuddea  Division,  stated that the statements made  by  Rani Phul  Kumari  were substantially correct,  but  the  revenue authorities  had  no power of interference, and  that  the report  of  the  Collector of    Murshidabad  was  that  the petitioner could not claim any compensation under Reg.   XIX of 1816 since the provisions of that enactment had not  been enforced  against her and she was not deprived of the  ferry rights. On  March 15, 1855 the revenue authorities prepared It  list of  ferries in District Murshidabad to be  declared  public. Ill a  letter  dated September  16,  1857  the  Magistrate Rajshahye  informed the Commissioner of Rajshahye  that  the ferries in Alaipur belonging to the plaintiff’s predecessors



did  form part  of the estate at  the  time  of  decennial settlement and that out of (Sicca) Rs. 4,500/-, Rs.  1,000/- may fairly represent the portion of     Koodalghatee (one of the   eleven  ferries).   It  appears  that  it   was   then recommended that only the Koodalghatee alone may be  resumed and  the revenue attributable thereto was estimated  at  Rs. 1,000 544 By  letter  dated  November 25, 1857 of  the  Government  of Bengal  the Commissioner of Rajshahye was asked to  intimate to the Zamindar that the Lieutenant Governor was willing  to allow  abatement  of the Jumma of the estate  in  which  the ferry  was  situated  to  the  extent  of  Rs.  1,000/-   as compensation for loss of the ferry. In  letter  dated  January 8, 1858 from  the  Government  of Bengal it was recited that in regard to the compensation for resumption  of the ferries, the Government desired  that  as usual it may be fixed at 10 years’ purchase of profit during the first year after resumption, unless any other scheme not more disadvantageous to Government was proposed or agreed to by the owners. By letter dated April 4, 1860 from the Government of Bengal, the  Commissioner  of Rajshahye Division was  informed  that certain ferries which were resumed by the Government  orders on  the ground that those ferries were the  only  profitable ones out of the eleven which were situated upon the estate,, the  amount of Jumma of Rs. 1,000/- which had been  remitted was disproportionately small when compared with the  profits derived from the resumed and unresumed ferries, and that the Government had "come to the conclusion" that the most advis- able  course  will  be to declare the whole  of  the  eleven ferries public under the provisions of Regulation VI of 1819 and  to compensate the proprietor in the usual  manner  with ten  years’ purchase of actual collections during the  first year of the resumption."  By his letter dated September 20, 1860 to the Government of Bengal  the Commissioner of Rajshahye Division  stated  that total  compensation  payable  to the  Zamindar  for  the  It ferries  aggregated  to  Rs.  53,923-4-6  according  to  the principles  determined  by  the  Government,  and  that  the Zamindar  of  Pargana Goas had petitioned the  Collector  of Murshidabad on September 3, 1860 that she should be  allowed the annual remission of revenue to the extent of (Sicca) Rs. 4,500/-  for all the ferries and soliciting that the  matter may be adjusted as. soon as possible. Finally  by  letter dated November 3, 1860,  the  Government sanctioned payment of Rs. 53,923-4-6 as compensation for the eleven  ferries  of Pargana Goas, and that  the  arrangement cancelled the offer of a remission of Jumma to the extent of Rs. 1,000/- per annum made in the letter stated November 25, 1857, for the Koodalghatty Ferry. 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. 1,000/-.  Later it was decided to resume  all the ferries 545 in  Huda Alaipur and to pay compensation at ten  times,  the amount  of  profit determined "on the basis  of  one  year’s working of the ferries" after they were taken over. It  was urged, however, that the Zamindar was receiving  out of  the,  11 ferries a gross income of only  Rs.  5,392/they were liable to pay Rs. 4,800/- being the revenue payable  to the  Government, only the balance of Rs. 592/-  remained  on hand with the Zamindar.  Unless the abatement of revenue was taken  into  account  the Zamindar, Counsel  for  the  State



urged,  could not have been given as compensation  nearly  a hundred  times the amount of the net annual profit from  the ferries.  But the argument proceeds upon several assumptions which  are not supported,by evidence.  There is no  evidence that  the  plaintiff’s  predecessors were  making  only  Rs. 5,392/- gross 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/ that the  net annual  profit  of the Zamindar from the  ferries  ’was  Rs. 592/- 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. 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. 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 5 4 6 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 judg- ment. 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 abatements was refused, before the suit. It was urged also that the suit as filed in the Civil  Court for  abatement of revenue was not maintainable.   This  plea was not raised in the Trial Court.  It was submitted in  the Trial  Court  that  some  of  the  ferries  in  question  on partition of India fell within the District of Rajshahye  in East  Pakistan,  and  on  that account  the  Court  has  no, jurisdiction to try the suit.  It is common ground that  the State of West Bengal was realising the. entire revenue  from the plaintiff after the partition of India into the Dominion



of India and the Dominion of Pakistan, in respect of Account No.  523-3 of the Murshidabad Collectorate,  notwithstanding that some ferries formed part of territory of East Pakistan. In  the  view of the Trial Court the State  of  West  Bengal adopted inconsistent defences.  While realising the revenue, the State claimed that the entire revenue-paying estate  was within  its  jurisdiction, but when  the  plaintiff  claimed abatement  of  revenue the State pleaded that  because  some portion  of the property in respect of which  abatement  was claimed  had  fallen within the Dominion  of  Pakistan,  the Court  had  no jurisdiction.  It was not  urged  before  the Trial  Court that it was incompetent to entertain  the  suit for  abatement  of revenue.  Before the High Court  the  two learned Judges who heard the appeal differed.  Amaresh  Roy, J., observed that the State of West Bengal had never  raised the  plea  that the Civil Court was incompetent to  try  the suit.  The learned Judge observed that even after the atten- tion  of  the Government Pleader for the State  was  invited thereto lie declined to adopt that plea and it was not  open to  the Court of its own "to take up the contention  and  to non-)Suit  the  plaintiff." S. K. Sen, J., was of  the  view that  the  Civil Court was not competent  to  entertain  the suit.   Apparently the plea was never raised in the  written statement and was not argued even after one of the Judges in the  High  Court  invited  counsel  to  argue  it.   It   is undisputed that there is no express bar under any 5 4 7 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. In  deference to the view expressed by S. K. Sen J.  we  may briefly refer to the statutory and administrative orders  on which  reliance  was  placed by counsel  for  the  State  to support the view expressed by the learned Judges.  Section 9 of Regulation XIX of 1816 provided :               "In  the  event  of  its  appearing  that  the               profits  derived  from any resumed  ferry  may               have been included in the permanent settlement               of the, estate to which it has heretofore been               annexed, the Board or Commissioner under whose               orders  the  inquiry may be  conducted,  shall               report  the circumstances, with an opinion  on               the merits of the claim, for the consideration               and orders of the Governor-General in Council;               and  the courts of judicature shall  not  take               cognizance  of  any  claim  to  deductions  or               compensations  on account of the tolls  levied               at any ferry or ghaut." This section does not exclude the jurisdiction of the  Civil Court  to  entertain  a  claim  for  abatement  of   revenue separately  assessed in respect of a ferry which  has  been- resumed or has been compulsorily acquired.  Regulation 19 of 1816  was  repealed by Regulation VI of 1819  by  which  the management of the ferries was transferred from the Collector to  the  Magistrate.  Clause III of Regulation VI  of  1819, insofar as it is relevant, provided               "First.    No  ferries  shall   be   hereafter               considered public ferries, except such as  may               be,  situated at or near the Sadr Stations  of               the severed Magistrates or Joint  Magistrates,               or  such as may intersect the  chief  military               routes or other much frequented roads, or such               as  from special considerations it may  appear               advisable  to place under the  more  immediate               management   of  the  Magistrates  and   Joint



             Magistrates.               Second.  The Government reserves to itself the               power  of determining from time to time,  what               ferries  shall  under the  preceding  rule  be               deemed  public ferries and as such  shall  be,               subject  to  the  immediate  control  of   the               Magistrates and Joint Magistrates,               Third.   It  will be the duty of  the  Several               Magistrates  and Joint Magistrates to  prepare               lists  of the ferries which in their  judgment               should under the foregoing rules be               548               considered  to be public ferries, and  transit               them    as   soon   prepared    through    the               Superintendents of Police for the  information               and orders of Government." Clause IV dealt with the power of appointing proper  persons to  the  charge of the public ferries, for  the  purpose  of regulating  the number  and description  of  boats  to  be maintained  for  preventing, exactions-  and  generally  for promoting  the efficiency of the Police and the  safety  and convenience  of the community.  Clause VI declared that  the exclusive  right  to  ply public  ferries  shall  belong  to Government and no person shall be allowed to, employ a ferry boat  plying for hire without the previous sanction  of  the Magistrate.  The other clauses dealt with the procedure  and powers  of  the Magistrate with regard  to  public  ferries. This  Regulation dealt with the power of the  Government  of Bengal  to declare a particular ferry to be a  public  ferry and to manage it.  There is nothing in the Regulation  which excludes  the jurisdiction of the civil Court in the  matter of revenue qua a private ferry resumed, ,or acquired. Regulation  VI of 1819 was repealed by Act 1 of 1866.  By  2 of Act 1 of 1866 Act it was provided that every ferry  which has  been  or may be declared to be public ferry  under  the provisions of Regulation VI of 1819 shall belong exclusively to the Government.  By S. 4 it was provided that all  claims for  compensation  which may be preferred by any  person  or persons  for  loss  which  may  be  sustained  by  them   in consequence  of  any ferry having been  declared  public  as aforesaid  shall  be inquired into by such  Magistrate,  who shall  award compensation to any such person or persons  who may  appear justly entitled thereto.  But Act 1 of 1866  has no   application   because  the   ferries   of   plaintiff’s predecessor were resumed by the Government between the years 1857 and 1860.  In any case there is nothing to show in  any of the provisions to which our attention was invited that  a suit for abatement of revenue for resumption of the  ferries is excluded from the jurisdiction of the Civil Court. In   Secretary   of   State  for   India   in   Council   v. Maharajadhiraja Kameshwar Singh Bahadur(1) on which  Counsel for the State relied it was held by the High Court of  Patna that  the  jurisdiction  of the Civil Court  was  barred  by implication  in respect of a suit filed on the  ground  that compensation  awarded was inadequate and was based on  wrong principle.   That case has, in our judgment, no  bearing  on the   present   case.   The  method  for   determining   the compensation  is  provided by Act 1 of 1885  and  the  Civil Court’s jurisdiction to determine compensation may pro tanto may b e deemed excluded. (1)I.L. R. 15 Pat. 246. 5 4 9 Reliance  was  also placed upon r. 159 in the  Bengal  Tauzi Manual, 1940, which contains rules for the collection of and accounting,  for  land revenue and cesses in  Bengal.   Rule



159, insofar as it is relevant, provided :               "The power of sanctioning abatement of the re-               venue  or rent demand of an estate during  the               currency of a settlement will be exercised  by               Collectors,  Commissioners, and the  Board  of               Revenue as shown below The  diverse  clauses of r. 159 vested  power  in  different classes  of  officers  to  sanction  abatement  of  rent  or revenue.  For instance, the Collector had power to  sanction abatement of rent or revenue upto a total of Rs. 1,5001-  in a  single  year  in  all  estates  managed  direct  by   the Provincial  Government  :  the  Commissioner  had  power  to sanction  abatement of revenue upto Rs. 5,000/.   Again  the Collector  had  power to sanction abatement  of  revenue  in temporarily-settled estates bearing a revenue not  exceeding Rs. 5001-.  It was also stated that the Collector had  power to sanction in all estates abatements in consequence of  the acquisition  of  land under the Land Acquisition  Act  1  of 1894,  and the Board of Revenue alone had power to  sanction abatements  due  to  diluvion, ascertained  after  a  survey conducted  under Act IX of 1847.  The Board alone had  power to sanction abatement of rent or revenue in other cases  not specified in r. 159.  The Bengal Tauzi Manual 1940 does  not disclose the authority under which it was published, and the sanction  behind the rules.  The Board of Revenue from  time to    time   published   instructions   relating   to    the administration of revenue laws.  The rules and instructions set  out in the Manual are apparently not  statutory.   Even assuming  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  rule like  r. 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. S.   K.  Sen, I., was, in our judgment, in error in  holding that  the Civil Court had no jurisdiction to  entertain  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. The  appeal is allowed.  The order passed by the High  Court is  set  aside and the order passed by the  Trial  Court  is restored with costs in this Court and in the High Court. V.P.S.               Appeal allowed, 8-L436 Sup Cl/71 5 50