Judgement Appeal (No. 48 of 1936) from a decree of the High Court (August 3, 1933) which reversed a decree of the Revenue Judge of Bombay (October 20, 1927). The appellant was the spiritual head of the Hindu Vaishnava temple known as Mota Mandir at Cutch Mandvi, and as such was the owner of a piece of land situated at Bora Bazar Street, within the Fort of Bombay, measuring 881-51 square yards. On October 26, 1926, the Collector of Bombay, the present respondent, assessed the land with a revenue under s. 8 of the Bombay City Land Revenue Act, II. of 1876. The main question in this appeal was whether there was a right on the part of the appellant, in limitation of the right of the Government, to possess the land free from assessment for land revenue. She contended (inter alia) that she was entitled to a statutory prescriptive right of exemption by virtue of the provisions of Bombay Regulation XVII. of 1827. The facts and the relevant provisions of the Bombay Regulations appear from the judgment of the Judicial Committee. The Revenue Judge held that the right of the Government to assess the land for the payment of land revenue was barred under Regulation XVII. of 1827. On appeal, the High Court (Beaumont C.J. and Wadia J.) reversed the decision of the Revenue Judge, and held that Regulation XVII. of 1827 did not apply to the property in question. 1937. May 3, 4. Dunne K.C., Wattach and R. Parikh for the appellant. No question arises in respect of the title to the land it has never had a revenue assessed on it from the beginning of time, and it has been without any ground rent. The only questions are (a) whether, this being a tenure free from revenue from time immemorial, there is a presumption that the immunity originated in a grant which has been lost— on that point both the Courts below have found against the appellant, heading that it is not a case for presumption. (b) Whether under the relevant Regulation, which gave exemption after 60 years without payment [reduced by a subsequent Regulation to 30 years] the appellant had acquired a prescriptive right which was claimable against the Government. The Revenue Judge held that the appellant had proved that the land was held free of revenue during the necessary period to acquire prescriptive right. (b) Whether under the relevant Regulation, which gave exemption after 60 years without payment [reduced by a subsequent Regulation to 30 years] the appellant had acquired a prescriptive right which was claimable against the Government. The Revenue Judge held that the appellant had proved that the land was held free of revenue during the necessary period to acquire prescriptive right. The High Court held that Regulation XVII. of 1827 was not one which applied to the Presidency, and therefore did not apply to the land in question. [Reference was made to Bombay Regulations I. of 1823 ; XVII. of 1827 ; XIX. of 1827 ; VI of 1833, and Bombay Act VII. of 1863.] The incorporation in Regulation XIX. of 1827 of the principles relating to the assessment of land revenue is sufficient for the appellants purposes, because Regulation XIX. admittedly applies to Bombay Presidency. By Regulation VI. of 1833 the period of 60 years was reduced to 30 years. Regulation VI. of 1833 was repealed by Bombay Act VII. of 1863. Where there is a prescriptive right an assessment cannot be fixed by the Collector at all. All that the High Court said was that the appellant could not get the benefit of Regulation XVII. in the City of Bombay. There is nothing to suggest that there is any distinction in the principles which would be applicable to the merits in claiming an exemption whether in Bombay or elsewhere. From the beginning of time up to 1926 the land has never paid a tax or rent of any sort or kind that is conceded. The Regulations were intended to secure the continuation of the rights protected by them. Even assuming that Regulation XVII. of 1827 is not applicable proprio vigore to the Bombay Presidency, the principle of the section which is applicable under Regulation XIX. of 1827, and which contains the same words, covers the case of the appellant. There is nothing which excludes Regulation XVII. from the Presidency. In this case the prescriptive right has been obtained. There does not appear to be any close authority on the question of a grant by Government remitting revenue. It is a question of presumption as a matter of law Mohammad Mazaffar-al-Musavi v. Jabeda Khatun. (( 1930) L. R. 571. A. 125, 128, 130.) Sir Thomas Strangman for the respondent. In this case the prescriptive right has been obtained. There does not appear to be any close authority on the question of a grant by Government remitting revenue. It is a question of presumption as a matter of law Mohammad Mazaffar-al-Musavi v. Jabeda Khatun. (( 1930) L. R. 571. A. 125, 128, 130.) Sir Thomas Strangman for the respondent. The two points which have been advanced on behalf of the appellant are (1.), from the fact that there is no proof that this land ever paid land revenue, and the proof that from 1813 to 1926 it paid none, a lost grant should be presumed. (2.) (a) Bombay Regulation XVII. of 1827 and its predecessor, Regulation I. of 1823, apply to the City of Bombay ; a right to hold free of assessment had been acquired under s. 36 of Regulation XVII. of 1827, as amended by Regulation VI. of 1833 before its repeal by Bombay Act VII. of. 1863; (b) Alternatively,, if Bombay Regulation XVII. of 1827 did not Per se apply to Bombay, the portions applied by Regulation XIX. of 1827 included by implication s. 36 of the former Regulation, with the like result. With regard to the point as to the lost grant, it is submitted that the maxim nullum tempus occurrit regi applies in India, and that it is in direct contradiction to the theory of the lost grant Vyakunta Bapuji v. Government of Bombay (( 1875) 12 Bom. H.C. R. appdx. 1, 217.) Government of Bombay v. Haribha’i Moribhai (( 1875) Ibid. 225, 248.) ; and Sha Purji Jivanji v. Collector of Bombay. (( 1885) I.L.R.9 B. 483, 485.) As to point 2 (a), Bombay Regulations XVII. and XIX. of 1827 were mutually exclusive; the former, as did its predecessor, Regulation I. of 1823, applied to the mofussil only, and the latter applied to Bombay only. With regard to point 2 (b), s. 36 of Regulation XVII. of 1827 is not applied by Regulation XIX. of 1827 either expressly or by implication. [Detailed reference was made to the relevant Regulations.] The appellant had no right in limitation of the right of Government to assess the land in suit. Dunne K.C. replied. There is no question of nullum tempus in this case. June 17. The judgment of their Lordships was delivered by Lord Macmillan. of 1827 either expressly or by implication. [Detailed reference was made to the relevant Regulations.] The appellant had no right in limitation of the right of Government to assess the land in suit. Dunne K.C. replied. There is no question of nullum tempus in this case. June 17. The judgment of their Lordships was delivered by Lord Macmillan. On October 26, 1926, the Collector of Bombay addressed to the appellant a notification that the Government had been pleased to sanction, under s. 8 of the Bombay City Land-Revenue Act of 1876, the assessment of certain property in Bombay belonging to her described as "Land at Bora Bazar Street, bearing N.S. [New Survey] No. 8841 and C.S. [Cadastral Survey] No. 1356." The notification indicated the scale on which the property had been assessed, and stated that the assessment would come into force from November 1, 1926, and would be guaranteed for 99 years from that date. Availing herself of the provisions of s. 14 of the Act of 1876, the appellant instituted a suit against the respondent contesting the legality of the assessment. She prayed for a declaration " that there is a right on the part o the plaintiff in limitation of the right of Government to possess and hold her said land free from assessment, and that the defendant has no right to levy any assessment." The learned Revenue Judge on October 20, 1927, gave judgment for the plaintiff and granted her a declaration as craved. On August 3, 1933, the High Court of Judicature at Bombay reversed the decree of the Revenue Judge and dismissed the suit. Hence the present appeal. The only question before their Lordships is whether the appellant is entitled to total exemption from assessment to land revenue in respect of the property mentioned. Sect. 8 of the statute of 1876, under which the assessment purports to be made, reads as follows —" 8. It shall be the duty of the Collector, subject to the orders of Government, to fix and to levy the assessment for land revenue. When there is no right on the part of the superior holder in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of Government. When there is no right on the part of the superior holder in limitation of the right of Government to assess, the assessment shall be fixed at the discretion of the Collector subject to the control of Government. When there is a right on the part of the superior holder in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved, the assessment shall not exceed such specific limit." " The words land-revenue signify any sum of money legally claimable by Government from any person on account of any land . . . held by or vested in him ...."; and the words " superior holder " signify " the person having the highest title under Government " to the land in respect- of which land revenue is payable (s. 3 (2) and (4)). It is remarkable that the statute contains no provisions relating to exemption from payment of land revenue (although their Lordships are given to understand that cases of total exemption exist, and are recognized) other than the words of s. 8 just quoted, which appear to apply rather to the case of a limitation on the right to assess than to the case of a complete exemption from assessment. Learned counsel for the Crown, however, informed their Lordships that it was in virtue of these words in s. 8 that total exemption where established was in practice recognized. The burden is plainly on the appellant to show that as the superior holder of the property in question she has " a right. .. in limitation of the right of Government, in consequence of a specific limit to assessment having been established and preserved," and that that specific limit is nil. However awkward and inartistic, that is the only way, as parties are agreed, in which the issue between them can be fitted into the statute. The property is owned by the appellant as spiritual head of a Hindu Vaishnava temple situated at Cutch Mandvi. The earliest title deed is dated 1788 and is a conveyance to two persons. The property appears to have descended to the daughter of one of them who, in 1828, devised it to her spiritual guru, and the appellant claims under that guru. The earliest title deed is dated 1788 and is a conveyance to two persons. The property appears to have descended to the daughter of one of them who, in 1828, devised it to her spiritual guru, and the appellant claims under that guru. It is not necessary for the present purpose to explore the early history of land tenure in the Island of Bombay of which the learned Revenue Judge gives an interesting summary. It suffices to note that the plaintiff alleges and the Crown admits that " no land revenue has ever been charged in respect of the said property " ; that the property has not been entered in the Rent Rolls of the Collector; and that in the Survey Register of 1813 the entry against it in the rent column is " no ground rent," and in the Survey Register of 1869 the entry against it in the tenure column is " O." It further appears that the question of the assessability of the property was raised in 1973 when, after inquiry, the Department minuted in the following year that " the land cannot be assessed since it is held without assessment for more than 60 years under G.R. No. 1976 dated March 12, 1904. A note to this effect may be made in this Register." The Government Resolution of March 12, 1904, was to the effect that no assessment should be imposed where lands had remained unassessed for 60 years. The entry made in the Register recorded that the " land is charitable and is held free of rent and cannot now be assessed " ; but this entry is deleted, and there is added " This note has been struck off in view of" two opinions of the Advocate-General. All this, however, amounts to no more than a revelation of the vacillation of the Crowns advisers as to the assessability of the property, for their Lordships agree with both the courts below that there is nothing in the nature of an estoppel or bar to prevent the present assessment if it is otherwise justified, and indeed no argument to a contrary effect was submitted. The appellant has not been able to produce any deed or grant conferring the exemption which she claims. The appellant has not been able to produce any deed or grant conferring the exemption which she claims. But she maintains that she has a prescriptive right of exemption, and that in virtue of its long enjoyment a lost grant conferring it must be presumed. If so, her right, in order to be effectual, must, in terms of s. 8 of the 1876 Act, have been " established and preserved." Without pausing to consider the meaning of these words, their Lordships proceed to examine the claim as founded on prescription or lost grant. Counsel for the appellant referred first to Bombay Regulation I. of 1823 which in its preamble recites (inter alia) that " it is expedient that the enjoyment of exemption from revenue for a period of 60 years should in certain cases be held as proof of sufficient title to the exemption," and proceeds in s. 4 to provide that " Whenever land has been enjoyed without payment of the public revenue, for more than 60 years in succession by any person, his heirs or others deriving right from him, such enjoyment shall be considered as sufficient title to the exemption/ Counsel for the Crown maintained that this Regulation had no application to the City of Bombay but was applicable only to the mofussil. It is not necessary to consider the point, for the Regulation was repealed by Regulation I. of 1827. In the latter year a number of Regulations were made, of which Regulations XVII. and XIX. are material. Regulation XVII., which is entitled " A Regulation for the Territories subordinate to Bombay," in chapter IX., s. 36, repeated in terms s. 4 of the repealed Regulation of 1823 above quoted. The period of 60 years therein mentioned was reduced to 30 years by Regulation VI. of 1833. In 1863 chapters IX. and X, of Regulation XVII. of 1827 and Regulation VI. of 1833 were repealed by s. 1 of the Bombay Act VII. The period of 60 years therein mentioned was reduced to 30 years by Regulation VI. of 1833. In 1863 chapters IX. and X, of Regulation XVII. of 1827 and Regulation VI. of 1833 were repealed by s. 1 of the Bombay Act VII. of that year, which substituted in s. 21 a similar provision requiring claims to exemption from payment of land revenue in virtue of prescription to be admitted, in the case of lands in certain districts, if proved to have been held exempt from payment of land revenue under a tenure recognized by the custom of the country for 60 years prior to the date of the Act, and in the case of other lands if proved to have been held in like manner for 30 years. All that was left of Regulation XVII. of. 1827 was finally repealed by the Bombay Land Revenue Code, 1879, s. 2. and schedule A. The learned Revenue Judge was of opinion that under the provisions of chapter IX., s. 36, of Regulation XVII. of 1827, there was acquired a vested right of exemption from land revenue as regards the property in question inasmuch as for at least 60 years exemption had in fact been enjoyed. But the Crown submits that Regulation XVII. of 1827 did not apply to the City of Bombay, and the High Court has so held. Apart from intrinsic indications in the Regulation itself, which are elaborated by Beaumont C.J., a conclusive argument against the applicability of Regulation XVII. to the City of Bombay is to be found in the fact that on the same day another Regulation, namely, Regulation XIX. of 1827, was made, which is entitled " A Regulation for the Presidency, prescribing rules for the assessment and collection of the land revenue/ "The Presidency" clearly means the Island of Bombay. Sect. 3 of Regulation XIX. provides that " the land revenue of the Presidency shall be assessed and levied by the Collector and his assistants according to the principles laid down in Regulation XVII., a.d. 1827, s. 3, the three first clauses of s. 4, s. 5 and the first clause of s. 6." If Regulation XVII. were applicable to the Presidency it would be quite inappropriate in Regulation XIX., which applies to the Presidency, to adopt and apply to the Presidency selected provisions of Regulation XVII. were applicable to the Presidency it would be quite inappropriate in Regulation XIX., which applies to the Presidency, to adopt and apply to the Presidency selected provisions of Regulation XVII. It would clearly appear that, at any rate from 1827 onwards, the land revenue legislation for the Presidency and for the mofussil ran on separate lines. Their Lordships therefore agree with the High Court in holding that Regulation XVII. does not apply to the property in question. But Regulation XIX., which does apply, contains no provision for recognizing a pre- scriptive right to exemption from land revenue such as is contained in chapter IX., s. 36, of Regulation XVII., and while adopting some of the provisions of Regulation XVII., has not adopted chapter IX., s. 36. The appellant therefore cannot rely on any statutory prescriptive title to exemption. But the appellant submits that in the circumstances a lost grant should be presumed, and that this lost grant should be presumed to have contained an exemption from land revenue or a " right in limitation of the right of Government" to assess the property. The law may presume the existence of a grant which has been lost where it is sought to disturb a person in the enjoyment of a right which he and his pre decessors have immemorially enjoyed, but it is a different thing to seek to presume that the Crown has by some lost grant deprived itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable. The appellant having thus failed to discharge the burden of proving the existence of an " established and preserved " right on her part in limitation of the right of Government to assess her property, the Collector was entitled to fix an assessment at his discretion, subject to the control of Government, as he has done. Their Lordships will accordingly humbly advise His Majesty that the appeal should be dismissed, and the decree of the High Court of Judicature at Bombay of August 3, 1933, affirmed. The appellant will pay the respondents costs in the appeal.