G.N.DAS,J. - (1.) THIS is an appeal by the defendant 1, Province of Bengal, against the judgment and decree dated 31 -3 -1943, passed by Mr. S. C. Dutta, learned Subordinate Judge, 1st Court Howrah.
(2.) THE plaintiffs are the Commissioners for the Port of Calcutta, a body corporate, constituted under Bengal Act V [5] of 1870 hereinafter to be called the Port Commissioners. The case of the plaintiffs is that by a Government notification dated 9 -10 -1880 the Telkalghat landing stage and bathing ghat on the shores of the river Hooghly were declared a public landing stage and a public bathing ghat under the Calcutta Port Improvement Act V [5] of 1870, hereinafter to be called the Port Act, 1870; that by an agreement dated 17 -12 -1884 and entered into with the sanction of the Government, between Messrs. Burn and Co. Ltd., who are permanent lessees from the proprietors of the mainland estate, and the plaintiffs, the latter got 150' of the river frontage for improvement of the said landing stage; that for the said purpose the plaintiffs threw out a spur into the river to the north of the southern spur nearby and parallel to it and filled up the intervening space, which served as a commodious and convenient public landing stage and approach to the public bathing ghat and a public ferry station booking office and other structures, approaches and conveniences were put up thereon, that the said works were duly and properly carried out with the previous sanction of the Government under the Port Act, 1870, and the Calcutta Port Act, in [3] of 1890, hereinafter called the Port Act, 1890, at a considerable cost and later maintained by the Port Commissioners at heavy cost; that the plaintiffs have all along been in undisturbed possession free of all claims or demands by the Government or the proprietors of the mainland estate, who are said to be defendants 2 to 7; that the said land is shewn in the plan annexed to the plaint and marked 'A' and is delineated as dags 41, 42, 43, 50, 51 of Diara maps of proposed touzi No. 1108, Howrah, which formed the subject matter of resumption case No. 3/15 of 1933 -1936. The plaintiffs' further case is that in 1930 assessment proceedings were commenced under the Bengal Tenancy Act which has no application to the land; that by a letter dated 10 -1 -1933 the Assistant Settlement Officer informed the plaintiffs that they have been recorded under the defendants 2 -7 as occupiers but if they could prove that the land had been reclaimed by them at their cost, they would be recorded directly under the Government and settlement would be made with them; that in spite of evidence adduced to that effect the Assistant Settlement Officer by his order dated 7 -8 -1933, declared that the land was an accretion to the mainland touzi No. 839, Howrah, and recorded the plaintiffs as occupiers under the defendants 2 -7 or their predecessors -in title; that in spite of plaintiffs' objections, the land was included in the assets of the said proprietors and valued at Rs. 1440 per bigha; that the plaintiff successively filed objections before the Assistant Settlement Officer, the Director of Land Records and the Board of Revenue. The latter finally disallowed the same without a hearing by an order dated 22 -10 -1937 except that the rate of assessment was reduced to Rs. 960 per bigha. The plaintiffs were informed of the said order dated 25 -11 -1937. In para (4) of the plaint, the plaintiffs allege that the land was wrongly recorded as an accretion; because the plaintiffs proved that they tilled up the land, as required by the Assistant Settlement Officer, and because there was no relationship of landlord and tenant between the plaintiffs and the proprietor at any time; and because the title, if any, of the proprietor had been extinguished by adverse possession of the plaintiffs.
(3.) IN para (5) of the plaint, the plaintiffs allege that the land should be excluded from assessment because the plaintiffs are holding and administering the land as delegatees representatives, agents and/or trustees of the Crown or as a department of Government, because the land is generally dedicated for the use of the public and the income is derived under the Ports Act for the benefit of the public and for purposes of the Act and not for any private profit, and because the land is not an alluvial accretion but owed its origin to engineering operations undertaken by the plaintiffs under the Ports Act and at their own expense, and because the formation was made with the knowledge and sanction of Government and in spite of several surveys and comparative maps the Government refrained from settlement operations and waived and abandoned its right; because the Government sanctioned the scheme and approved the initial and recurring expenditure without informing the plaintiffs about the liability to assessment.;