Sen, J. - (1.) This is an appeal by the plaintiffs whose suit has been dismissed by both the Courts below.
(2.) It will be necessary to state a few facts for the proper understanding of the matter which is before us for decision. Touzi No. 399 of Mahal Nawapara of the Nadia Collectorate is owned by the plaintiffs and defendants 2-11. Defendant 1 is the State of West Bengal. It is unnecessary to state the different shares held by the plaintiffs and defendants 2 to 11 in this Touzi, There was an accretion to this Touzi and that became Touzi No. 2645 Char Nawapara which was settled temporarily, that is, for a period of 15 years with the plaintiffs and defendants 2 to 11 in accordance with the provisions of Bengal Alluvion and Diluvian Act (Act IX [9] of 1847). Just before the term was coming to an end, the Collector of Nadia addressed the proprietors of the accreted Touzi asking them to take a fresh settlement. The plaintiffs refused to take fresh settlement. Thereupon the Collector farmed out the Touzi in favour of the Chetlangia Court of Werds which is defendant 3 for a period of one year pending the Revisional Settlement. On the expiry of that year, a fresh settlement had to be made with the former owners and according to the State of West Bengal such fresh settlement was made under Section 10 (5) of the Bengal Land Revenue Settlement Regulation 1822 with the original owners. I may mention at this stage that a great deal of controversy has been raised by the plaintiffs as to whether the fresh settlement was legal, or whether it was at all binding on the plaintiffs. I shall deal with this controversy later. After this alleged fresh settlement, the accreted Touzi, namely, Touzi No. 2645 of Char Nawapara, fell into arrears of revenue and it was put up for sale and purchased by the State of West Bengal. The amount realised fey the sale was not sufficient to meet the arrears. Thereupon, in accordance with the provisions of the Public Demands Recovery Act (Bengal Act in [3] of 1913) a certificate was issued for the arrears against the alleged defaulting proprietors. The plaintiffs then instituted the present suit.
(3.) The plaintiffs' case was that the certificate is null and void and unenforceable against them for various reasons. I shall state only those reasons which were pressed before this Court. They are as follows: (i) In accordance with the provisions of Section 10 (4) of the aforesaid Regulation of 1822 it was incumbent upon the Collector to issue a notice as well as to promulgate a proclamation requiring the parties to whom the fresh settlement was being offered to attend and declare their agreement or non-agreement to the jama proposed to be assessed on the land. It is argued on behalf of the plaintiffs that no notice was issued, nor was there any proclamation made. (ii) According to the provisions of Section 10 (5) of the aforesaid Regulation, when a fresh settlement is offered if any person or persons, summoned to appear and to express his or their agreement or disagreement, omit to attend, he or they shall be bound by the decision of the majority of those who may attend and agree or disagree to the jama. In this case, the plaintiffs point out that one person only attended, namely, defendant 3 and that there could, therefore, be no majority. In these circumstances, it is argued, the plaintiffs would not be bound by the acceptance of the settlement by defendant 3, As a subsidiary point, it was argued that, even if the plaintiffs were bound by the decision of defendant 3, if the revenue fell into arrears, the plaintiffs' interest in the Touzi only would be liable for the arrears and the plaintiffs would not be personally liable. (iii) The third point argued was this: After the expiration of the period of 15 years when the time came for making a fresh settlement, the plaintiffs refused to take a fresh settlement and the Collector farmed out the Touzi to defendant 3, the plaintiffs getting merely a Malikana in respect of the Touzi, By reason of this act of the Collector, the plaintiffs ceased to have any rights or liabilities as proprietors of the Touzi, and not having any joint property in the Touzi they were not liable to be asked to take fresh settlement, nor were they liable to be bound by a fresh settlement being taken by the majority of persons attending pursuant to a notice issued under Section 10 (4) of the aforesaid Regulation of 1822.;