Judgement Appeal from a decree of the High Court (March 29, 1904) affirming a decree of the Subordinate Judge of Sylhet (April 15, 1899). The plaintiff was one Mahomed Ali Amjad Khan, who died after the decree of the First Court, the appellants being his legal representatives. The respondent Secretary of State was one of the defendants. In the exercise of powers vested in him by Regulation III. of 1891, which is sufficiently set out in their Lordships judgment, the Chief Commissioner of Assam on July 25, 1891, notified that the Regulation would be put into force in certain areas from October 1 following. Among the tracts of land to which the notification related was the area in suit, which admittedly contained jhum lands. These lands are described in the judgment of the High Court as " lands in wild and jungly tracts on the Sylhet frontier, which were never brought under settlement by the Revenue authorities, but were left waste to be occupied by migratory cultivators who, after a time, abandoned them, and moved on to other similar lands with greater advantages. The proprietors of neighbouring estates seem to have taken rents, or forest dues, from these persons. Any rights so acquired, either by the cultivators, or by those who took rents or dues from them, were of a very indefinite and transitory character." The plaintiff sued on April 13, 1897, for a declaration that the notification issued by the Chief Commissioner of Assam does not affect the plaintiffs right and possession of the lands in suit. The relief was prayed for on two grounds—(1.) that the lands in suit (known locally as the lands of Puber Pahar, or Eastern Hill) were part and parcel of the permanently settled estates named in schedules 4 and 5 attached to the plaint, and not lands in which the plaintiff and his co-sharers had merely the jhum rights; (2.) that, by adverse possession for over sixty years, plaintiff had acquired a title against the Government. The plaint also stated that, under the permanent settlement, the settlement holders of those estates were given absolute proprietary right to the land described in schedule 1, and that the highest Revenue authority had decided that those lands appertained to the permanently settled estates. The plaint also stated that, under the permanent settlement, the settlement holders of those estates were given absolute proprietary right to the land described in schedule 1, and that the highest Revenue authority had decided that those lands appertained to the permanently settled estates. In his written statement the Secretary of State for India in Council denied (1.) that the lands in suit were included in the taluqs, or estates, named by the plaintiff; and (2.) that the plaintiff had acquired any title to the land by adverse possession. With reference to the other allegations made in the plaint, it was stated, in answer, that all that the highest Revenue authority admitted was that the plaintiff had jhum rights attached to the lands in dispute, but it was contended that, even if it were admitted that the plaintiff and his co-sharers really held such jhum rights, they had been extinguished by Regulation III. of 1891. The Subordinate Judge dismissed the suit. With regard to Regulation III. of 1891 he observed that it was evident from the preamble that the Regulation did not apply to lands within the limits of the permanently settled estates, but applied to lands beyond the limits of those estates, upon which lands the proprietors of those estates carried on jhum or shifting cultivation, the income derived from such cultivation having formed part of the estimated assets, which formed the basis for assessment of revenue of the permanently settled estates. The first question, therefore, for determination was whether the land in dispute was within, or was beyond, the limits of the permanently settled estates. After an examination of the documentary evidence in the record, he came to the conclusion that the land in dispute was beyond the limits of the permanently settled estates, and he therefore found that that land came within the operation of Regulation III. of 1891. He also held that, as the plaintiff had failed to shew that the disputed land was included in the permanently settled estates, it necessarily followed that it did not appertain to the taluqs, or estates, mentioned in schedules 4 and 5 attached to the plaint. With regard to the title claimed by the plaintiff by adverse possession the Subordinate Judge said " I now come to consider the nature of the jhum cultivation, and whether exercising this right the plaintiff acquired absolute ownership of the land. With regard to the title claimed by the plaintiff by adverse possession the Subordinate Judge said " I now come to consider the nature of the jhum cultivation, and whether exercising this right the plaintiff acquired absolute ownership of the land. From the evidence it appears that jhum cultivation is carried on by hill tribes, such as Kakis and Tipperahs who reside in hill tracts. A number of such men take up their quarters in a part of the jungle, and cultivate the neighbouring lands. They burn and clear the jungle and grow their cotton and paddy and other crops. The peculiarity of this cultivation is that the same land does not yield a return without a long rest. After cultivating the land for a year or two and sometimes three years, the cultivators remove to a fresh spot and live and carry on their cultivation there. It does not appear that they have to obtain previous permission for doing the same. They select a piece of land at their will and carry on cultivation without any permission of the owner of the land; and then they are taxed at so much per head. When they come to meet the person to whom they pay the taxes, they make present of portion of their jhum produce. Such collections are rather in the nature of tolls or taxes than rents proper. The kabuliyats the cultivators executed were not for any specified piece of land, and for exercising tenant right over it, but only for carrying on jhum cultivation on a certain tract described therein. " From the above it appears that the plaintiff and his predecessors had not the entire interest in the land; they enjoyed only a partial and casual interest. They had hardly any right over the land, their only right being to collect a certain tax from the people who carried on jhum cultivation apparently quite independently of them. As the entire interest in the land was not granted away, and as the plaintiff and his predecessors in interest only enjoyed the privilege of collecting taxes from the jhum cultivators, their right was not of an absolute and full owner, but was a mere privilege or easement. As the entire interest in the land was not granted away, and as the plaintiff and his predecessors in interest only enjoyed the privilege of collecting taxes from the jhum cultivators, their right was not of an absolute and full owner, but was a mere privilege or easement. " I may state here that in the case of kumri cultivation, which appears to be almost exactly of the same nature as jhum cultivation of Sylhet, the Bombay High Court has ruled it to be an easement. (Bhask arappa v. Collector of North Canara, ( 1879) I.L.R. 3 Bomb, 45) " On these grounds I find that the plaintiff and his predecessors in internet did not hold adverse possession of the disputed land for upwards of sixty years; and therefore they acquired no title by adverse possession." The High Court affirmed this decree. The judgment referred to Regulation III. of 1891, and then observed that the main questions for consideration were whether, by the proceedings in the permanent settlement of the estates mentioned in schedules 4 and 5 attached to the plaint, the lands in suit were included so as to form portions of those estates, or whether beyond the limits of those estates the assets merely were taken into account for purposes of assessment of Government revenue, but not so as to confer any title to the land ; in other words, whether the lands, as such, came within the terms of the Regulation. Upon these questions the judgment found that the plaintiff had failed to prove that the lands in suit lay within the boundaries of his permanently settled taluqs. The material passage of the judgment as to the effect of the Regulation is as follows " In making a settlement of an estate it is the duty of a revenue officer to ascertain the assets realized by the proprietor in the shape of rents, &c, from the lands forming portion of that estate and to assess the Government revenue on the result. It appears from the evidence before us, corroborated by the terms of the preamble of the Regulation, that when the permanent settlement of this part of the country was made, the income then derived from various rights was considered as an asset of the estate and taken into account in assessing the Government revenue. It appears from the evidence before us, corroborated by the terms of the preamble of the Regulation, that when the permanent settlement of this part of the country was made, the income then derived from various rights was considered as an asset of the estate and taken into account in assessing the Government revenue. But it is equally clear that the rents paid for the occupation of lands cultivated as jhum, as well as such dues as were derived from cutting timber or other-wise which may roughly be described as forest rights, were variable, and it could not be said that any particular poprietor received such rents or dues on account of any particular tract of country for any considerable and continuous period of time. Even at the present time the evidence fails to shew this. The lands were waste and unoccupied, and had not been made liable to the payment of Government revenue, and, under the custom of the country, they were left open to the sparse uncivilized tribes who lived on the frontier to use them as they thought proper. Admittedly these people were never regularly settled on any particular lands. They cleared jungles and used the timber and the cultivated lands as they thought proper until they found that their labour could be more profitably directed to other lands, and they then abandoned their former holdings and occupied these new lands. Meanwhile the proprietors of lands under settlement with Government took advantage of their superior position and influence and took rents, and the dues realized by these persons from those occupying lands under the jhum custom were taken in to account in assessing the Government revenue, and the Government abstained from attempting to make any regular settlement in regard to the payment of revenue on account of jhum lands. There is nothing to shew an admission by Government of any title to the large tract of waste lands still unoccupied save by casual acts of cultivation, cutting timber, and so forth. How far the inclusion of such assets would give any title to the lands for which rents were then paid is another question. But if the lands were beyond the limits of the estates under permanent settlement, it is clear that they come within the Regulation, for it is to such lands that the Regulation is expressly directed. This is shewn by the preamble. But if the lands were beyond the limits of the estates under permanent settlement, it is clear that they come within the Regulation, for it is to such lands that the Regulation is expressly directed. This is shewn by the preamble. All rights over such lands were declared to be extinguished, compensation being given for their loss, and it was further declared that no claim on the ground of such rights shall be entertained in any suit or proceeding." Sir R. Finlay, K.C., and De Gruyther, K.C., for the appellants, contended that the lands in suit were part of their permanently settled estate, and that, therefore, Sylhet Regulation III. of 1891 did not apply. The land in dispute is known as mouzah Puber Pahar. The records of the decennial settlement afterwards made permanent were not forthcoming, but the mouzawari papers for 1801-2 shew that the income derived from it was included in .the collections from the entire estate. Those papers in later years shew that jhum is not cultivated in one place every year. The word " jhum " means a hill or forest village, in which cultivation would be shifting. There is nothing in the word itself or in its use to indicate that the hill or forest village cannot form part of a permanently settled estate. The evidence shewed that the land in suit was assessed to revenue as part of the appellants estate, and that from the date of the settlement the appellants, or those from whom they derive title, held continuous possession, received the rents, and paid the revenue originally assessed thereon. Bengal Regulations I. of 1793, s. 10, and VIII. of 1793, 88. 35-39, shew that only assets arising out of the estate itself could be taken into account in settling the revenue of an estate. The fact that the income from the jhum lands in suit was so taken into account is cogent evidence that those lands formed part of the settled estate. Reference was also made to the mouzawari papers of 1882-3, and of 1829-30; Fields Regulations, ed. 1875, Introduction, p. 41, as to the meaning of " mahal " as an estate in land separately assessed to Government revenue; Assam Land Revenue manual, by Gait, ed. 1896 (Sylhet province), pp. cxxviii.,cxxix., cxxxii., cxxxiii., cxxxviii. ; the 5th Report of the Select Committee on the Affairs of the East India Company, Madras, ed. 1875, Introduction, p. 41, as to the meaning of " mahal " as an estate in land separately assessed to Government revenue; Assam Land Revenue manual, by Gait, ed. 1896 (Sylhet province), pp. cxxviii.,cxxix., cxxxii., cxxxiii., cxxxviii. ; the 5th Report of the Select Committee on the Affairs of the East India Company, Madras, ed. 1883; vol. 1, pp. 14, 18, 21, 23-130, 139, 146, 147, 150, 568, 571, 580, 585, 592, 609, 611, 613, 616, 630. The onus lay on the Secretary of State to shew that Regulation III. of 1891 was applicable; and it was submitted that he had failed to do so, and that the evidence shewed that the lands were part of the permanently settled estate, or at least that the appellants had shewn that any defect in their title had been cured by adverse possession for a sufficient period of time to afford evidence of title. Cohen, K.C., and Ross, for the respondent Secretary of State, contended that on the evidence the appellants had failed to shew that the lands in suit had been included in their permanently settled estate. The concurrent findings of the Court below were conclusive upon that point. It was contended that the documentary evidence, taken as a whole, clearly shewed that the officers who effected the permanent settlement in question included for the purposes of assessment the income under the name of jhum then derived by the proprietors of the estate so settled from shifting cultivation carried on by the proprietors or their dependants beyond its limits. Further, it was shewn that the areas of such cultivation were necessarily undefined and varied from year to year. The lands so undefined could not be, and were not, included in the settled area; and this state of things is exactly what the Legislature contemplated when it passed Regulation III. of 1891. Although the income from the lands was included as assets accruing to the owner in respect of which he was assessable, yet it was clearly understood that the income was derived, not from lands which formed part of the settlement, but from lands which lay wholly outside it. The preamble and ss. 2 and 3 of Regulation III. of 1891 were referred to, and the Assam District Gazetteer, " Sylhet," vol. 2, p. 262. The preamble and ss. 2 and 3 of Regulation III. of 1891 were referred to, and the Assam District Gazetteer, " Sylhet," vol. 2, p. 262. The appellants, moreover, had failed to proye that they had the entire interest in the lands in suit. The evidence shewed merely a casual and partial interest, insufficient as evidence of title or of adverse possession. De Gruyther, K.C., replied. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal against a judgment and decree of the High Court of Calcutta, dated March 29, 1904, which affirmed the judgment and decree of the Subordinate Judge of Sylhet, dated April 15, 1899. The question raised upon the appeal is whether Regulation III. of 1891, issued under the authority of the Act 33 Viet. c. 3, can properly be applied in the case of certain lands known by the name of Puber Pahar. The Regulation in question begins with a most useful preamble which recites as follows — " Whereas the officers who effected the permanent settlements of certain estates in the district of Sylhet included, for the purposes of assessment, among the assets of those estates, under the designation of jhum . . . ., the income then derived by the proprietors of those estates from shifting cultivation carried on by them or their dependents beyond the limits of those estates, and from tolls levied by them on forest-produce cut, gathered or enjoyed in places beyond the limits of those estates .... " And whereas, inasmuch as the said cultivation and the operations of those who cut, gathered or enjoyed the said forest-produce shifted from year to year over immense and altogether undefined areas, the tracts of land over which they extended were not specified at the time of the settlement, and, in consequence of this, rights of various, and in some cases vague, descriptions are from time to time asserted by the said proprietors over immense and undefined areas; " And whereas it is thus impossible for any person to obtain a safe and clear title to land in those areas, and the extension of cultivation is, in consequence, impeded ; " And whereas it is expedient that the rights, if any, corresponding to the said jhum .... assets should be commuted." Sect. 2 enacts that " All rights .... in respect of which jhum .... assets should be commuted." Sect. 2 enacts that " All rights .... in respect of which jhum .... assets were assessed in any permanent settlement of land, or which have been at any time acquired by virtue of or under cover of such assessment shall be deemed to have been extinguished." And s. 3 declares that all proprietors of such estates shall be entitled to compensation. The nature of jhum cultivation is explained in an early official document relating to the hill lands in question " The dastur of jhum cultivation is this jhum is not cultivated in one place every year. When land is found anywhere within these boundaries jhum cultivation is made thereon, and after measurement and assessment the mirasdars take the rest by apportionment according to their respective shares in the jhum revenue at the time of the hastbud (Corruptly so written for " hast-o-bud," see Wilsons Glossary,) measurement." And that description seems to be correct to the present day. After the passing of the Regulation the Government of Assam, whose jurisdiction included Sylhet, issued and published orders in due course extending the Regulation to the areas in question, with others. The question, therefore, raised in the case and discussed on this appeal is whether the Regulation can be put in force with reference to the lands to which it is sought to apply it. Those lands have undoubtedly been long in the enjoyment (such enjoyment as is practically possible under the circum-stances of the case) of the appellants predecessors in title. The Government claims to apply to these lands a regulation which would have the effect of confiscating proprietary rights and giving compensation in exchange. Under these conditions their Lordships think it clear that it lies upon the Government to shew that the facts of the case are such as to bring it within the operation of the Regulation—in other words, that the present case is one in which, at the permanent settlement, in making settlement of certain taluqs with the appellants predecessors in title, the officers of Government included, for the purposes of assessment, among the assets of those taluqs them income derived by their owners from jhum cultivation carried on beyond the limits of the settled estate. That the taluqs now held by the appellants were settled at the permanent settlement is beyond dispute, and that in estimating the assets of those taluqs the profits of the present jhum lands were then brought into account is also beyond dispute. But according to the appellants those profits were taken into account because the jhum lands formed part of the settled estate; while, according to the other side, the jhum land profits were taken into account as assets accruing to the owners of the settled estate, but derived from lands lying outside it. The question is which of these views is to be accepted. It was contended on behalf of the Secretary of State that the question whether the jhum lands lay within or without the limits of the settled estates was a question of fact, and that their Lord-ships should accept the concurrent findings of the two Courts in India. This contention their Lordships are unable to accept. In a sense the question is one of fact; but at every point in the process of the reasoning considerations of law have to be regarded. It was contended on the other side that under the regulations in force at the time of the permanent settlement no assets could lawfully be taken into account in settling the jumma of an estate, except those arising out of the estate itself; and that this consideration established a very strong presumption that in any individual case the course in accordance with law had been followed. But this contention was met, and in their Lordships opinion effectively met, by a reference to the preamble of the Regulation under consideration. That preamble shews that the course said to have been impossible was in fact followed, rightly or wrongly, and followed in a number of cases sufficient to render legislation desirable. It remains, however, to consider, in each case that comes before the Courts, whether the facts bring the case within the operation of the Regulation. The taluqs in which the lands in question are said to have been included were, no doubt, settled at the decennial settlement, and that settlement was in due course made permanent. But, as might be expected after so great a lapse of time, little now survives of the original official papers, and what does survive is not very easy to construe. But, as might be expected after so great a lapse of time, little now survives of the original official papers, and what does survive is not very easy to construe. The most important of the early documents are certain mouzawari papers from 1801-2 onwards. These shew clearly that, in assessing the taluqs, the jhum assets were taken into account. But this, as has been shewn, is a neutral fact consistent with the case of either party. Beyond this it is difficult to carry the effect of those papers. Those papers were examined in detail by counsel upon both sides on the argument of the appeal. It appears to their Lordships unnecessary to repeat that examination. It is enough to say that there are circumstances favourable to one side and circumstances favourable to the other, but that no confident conclusion could be drawn from these papers either one way or the other. Reliance was also placed upon certain thakbast maps, but these are equally inconclusive. The only other matter which remains to be considered is the evidence as to possession and enjoyment of the lands in question on the part of the plaintiff and those who preceded him. In the Courts in India the plaintiff sought to establish a title by adverse possession for sixty years. In this he was held to have failed, and on the argument of the appeal no such case was contended for, but the evidence of possession and enjoyment was relied upon as proof of title. Regarded in this light, that evidence is important, and it all points one way. It was shewn that from as early as 1837 the appellants predecessors in title received kabulyats from persons carrying on jhum cultivation on the lands in question. In 1842 and 1843 those predecessors in title succeeded in defeating an attempt to exercise rights over these lands on the part of the persons interested in an adjoining mouza. On several occasions in subsequent years the appellants predecessors successfully resisted proposals on the part of revenue officers of Government to settle portions of these hill lands as ilam lands open for settlement. The most important instance was one that terminated in an order passed by the Board of Revenue (the highest Revenue authority in the province) dated September 14, 1855. The most important instance was one that terminated in an order passed by the Board of Revenue (the highest Revenue authority in the province) dated September 14, 1855. It had been proposed to offer for settlement a portion of the lands now in suit as ilam lands. This was objected to by the appellants predecessors. The Collector over-ruled the objection, but the Board of Revenue, concurring with the Commissioner, reversed that finding, and on the ground, as their Lordships understand it, that the lands were included in the permanent settlement. After that the possession and enjoyment of the appellants and those through whom they claim seem to have been continuous. Their Lordships will humbly advise His Majesty that the appeal should be allowed, that the decrees of the Courts in India should be set aside with costs, and a decree made granting the appellants the declaration asked for by the plaint. The respondent the Secretary of State will pay the costs of this appeal.