Akshoy Kumar Chakrabarti vs Manmatha Nath Mukherji

Das Gupta, J.—This appeal is by the Defendants in a suit (sic) with respect to C.S. plots 1875 and 1876 with a total (sic) of 44 acres in mouza Amta. During the C.S. operations, (sic) lands were recorded in khatiyan No. 617 of the mouza, as (sic) by these Defendants under Manmatha Nath Mukherji''s (sic) interest, as occupancy raiyat. In the column for rent, ire was the entry nishkar and in, the remarks column an (on the (sic) of adverse possession, which has been established for more in twenty years). The suit was brought by Manmatha Nath (sic) for a declaration that the land lies within the (sic) patni, being land within the Trial assets of the (sic) estate, that it is not nishkar and for assessment of (sic) and equitable rent and for damages for use and occupation the land.

The defence was that the lands were outside the mal assets of (sic) estate and thus outside the Plaintiff''s patni, being (sic) by taidad No. 3057 of one Jadabendra Majumdar and it the Defendants and their predecessors have been exercising (sic) title in this land from before the Decennial Settlement, assertion of such adverse title to the knowledge of the (sic) and his predecessors.

The trial court held that the land does not appertain to the (sic) assets of the Plaintiff''s mahal and is, therefore, not liable assessment and dismissed the suit.

On appeal, the learned Subordinate Judge, Howrah, came the conclusion that the Plaintiff had proved that the land (sic) within the mal assets of the touzi and of the Plaintiff''s (sic) and as the Defendants have not been able to show that they we relieved of the obligation to pay rent, either by express grant, by long possession without demand or payment of rent, (sic) might justify an inference of lost grant, or by showing that (sic) landlord''s right of assessment of rent is barred by limitation, (sic) Plaintiff was entitled to get the suit land assessed to fair (sic) He held that the fair rent for the land was Its. 3-5-5 and gave decree assessing this as the rent of the land and gave damage at the rate for the years 1348 to 1350.

It is contended before us on behalf of the Appellant that the learned Subordinate Judge was wrong in attaching no weight the entry in the remarks column, that this entry should presumed to be correct and that it should be held that (sic) Plaintiff''s right to assess rent has been barred by limitation.

For this proposition, Mr. Ghose relies on the recent (sic) in Monmotha Nath Mukherjee v. Sindhubala Debi (1950) 54 C.W.N. 973, a decision to which I was a party. In that case also, there was an (sic): nishkar in the column the remarks column. It was held that this entry connoted the the landlord''s right to realise rent had been barred by limitation under Article 131 and that u/s 103B of the Bengal (sic) Act, this entry must be presumed to be correct, until (sic) contrary was shown; and as this presumption had not bet rebutted, the Plaintiff''s suit for assessment of rent was held have been rightly dismissed.

Mr. A.C. Mukherji, for the Respondent, has tried to (sic) us that Monmotha Nath Mukherjee v. Sindhubala Debi (supra) was wrongly decided. After careful consideration in the matter. I am unable to find any reason that would justify dissent (sic) that decision and referring the matter to a Pull Bench.

It was argued, in the first place, that

should not be taken to connote that the landlord right had been barred by limitation. It was suggested that this entry may have been made by the settlement authorities merely to say that a tenancy right was acquired by the. Defendants, by adverse possession. It is to be noticed however, that the entry is in the same line as the (sic) about nishkar and next to it and that the nature of the tenant interest is shown in the lower part of the khatiyan. When (sic) further remember that in the other khatiyans, whether (sic) is entered in the rent column, an entry remarks column is often made, the only reasonable conclusion (sic) the entry has reference he entry nishkar.

It was next contended that, even if the words

refer to the entry nishkar, should be taken to mean "possession on assertion of nishkar le, adversely to the landlord". The words rally mean adverse possession. While, however, possession property on assertion of ownership, adversely to the rightful (sic), can create in law the right of ownership and possession a claim of tenancy, adversely to the landlord, will create a it of tenancy, possession on assertion of a rent-free right, ugh continued for any number of years, will not by itself (sic) a rent-free right. If rent is demanded and refused (sic) 131 of the Limitation Act limits the time within which the (sic) can sue for assessment of rent to twelve years from (sic) refusal. It may not be very exact to describe the tenant''s session after such refusal, as "adverse possession", but, as no (sic) possible meaning can be given to the words "adverse (sic) in the phrase nishkar on the basis of adverse session, I think the settlement authorities must be held to (sic) used the words "adverse possession", in their only possible (sic) viz., in the sense of "possession without payment of rent (sic) such rent was demanded and refused." It was next contended that this entry in the remarks column is as regards any of the particulars that were specified for (sic) in the order made u/s 101 of the Bengal Tenancy Act (sic) the preparation of the record-of-rights and so has not presumption of correctness u/s 103B(5) of the Act. It (sic) be admitted that an entry of any particulars not specified record in the order passed u/s 101 is not in law an entry (sic) record-of-right, within the meaning of Section 101 and Sections 103A 103B of the Bengal Tenancy Act and so the presumption of (sic) under Sub-section (3) of Section 103B does not attach to such an (sic). The question is whether or not what is entered in the arks column in the words etc., is particular specified for record in the order made u/s 101 this case, this order was produced before us; and we find that of the particulars specified for record is--

If the land is claimed to be held rent-free whether or not rent is actually and if not paid, whether or not the occupant is entitled to hold the land with-payment of rent and if so entitled, under what authorities.

In my judgment, the words "if so entitled, under what authority" require the settlement authorities, to record the basis the right to hold the land without payment of rent, whether a grant, or long non-payment that justifies the inference of a lost grant, or whether the landlord''s right has been barred limitation. I hold, therefore, that the entry etc., in the remarks column is of a particular specified in the (sic) u/s 101 and so entitled to the presumption of correction under Sub-section (5) of Section 103B of the Bengal Tenancy Act.

Mr. Mukherji next contended that the Privy Council decided in Jagdeo Narain Singh v. Baldeo Singh (1922) ILR 2 Pat. : L.R. 49 IndAp 399 that spite of such entries of nishkar right and their presumption correctness, once the land has been shown to be part of (sic) was assessed to revenue, it is on the Defendant to show that has been relieved of the obligation to pay rent. In Jagdeo Baldeo (supra) the Privy Council decided seven appeals Plaintiffs in suits brought by them to have it declared that entry in the settlement records that the Defendants were hold of rent-free tenures, was erroneous and that the Defendants (sic) not entitled to hold the lands in their possession, free of obligation of paying rents. It has to be pointed out at (sic) that no mention is made in the report of any entry in remarks column, similar to what we have in the present (sic) On a consideration of the evidence which was considerable (sic) Lordships came to the conclusion that these lands had (sic) assessed to revenue and held that once this was proved, the (sic) was shifted and it lay upon the Defendants to show satisfactory evidence that they had been relieved of the obligation to pay rent, notwithstanding the presumption of correctness the attached to the entry of nishkar in the record.

Their Lordships did nowhere say that the presumption correctness should not be made for such an entry. How (sic) did they say that inspite of such presumption, it was on Defendants to show that they had been relieved of the obligation to pay rent? The answer seems obvious: when revenue (sic) assessed, this was made on the basis of the rent that was be paid for the land, or was expected to be paid for the land. (sic) therefore, it is proved that any piece of land was assessed revenue, the reasonable conclusion is that it was considered the assessing authorities as either already paying rent, expected to pay rent. When, therefore, the evidence (sic) shows that the land was assessed to revenue, the presumption correctness of the entry of nishkar is rebutted.

I find it difficult to read into their Lordships'' (sic) a proposition that, even though no reliable evidence except settlement record is available and the settlement record its contains both an entry showing that the land was assessed to (sic) and another entry that it was rent-free, it will still be the tenant Defendant to show by satisfactory evidence that has been relieved of the obligation to pay rent. Such a position has of necessity to be based on the theory that the asumption of correctness of the entry, showing that the land (sic) assessed to revenue, should have preference over the presumption of correctness of the entry "rent-free". I find no (sic); (sic) for reading such a theory into the Privy Council (sic). It is to be remembered that an entry that the land (sic) assessed to revenue is not inconsistent with an entry of (sic) for the tenant may be relieved of the obligation to pay (sic), after the assessment of revenue was made. When an (sic) presumption of correctness attaches to the two entries, the (sic) it is, in such a case, in my opinion, bound in the absence other evidence to hold that both the entries are correct and the d though assessed to revenue is held rent-free.

Where, however, the Plaintiff''s case that the land was assessed revenue is proved by evidence other than settlement record (sic), Jagdeo v. Baldeo (supra) is authority for the proposition (sic) inspite of the entry of nishkar, the burden is on the tenant prove that he has been relieved of the obligation to pay rent.

Where, as in the present case, there is a further entry (sic) that the landlord''s right to assessment of rent has (sic) barred by limitation, the authority of Jagdeo v. Baldeo pro) cannot clearly be invoked to throw on the tenant the (sic) of proving that the landlord is not entitled to have rent (sic) thereon. Quite apart from the presumption of correctness of the entry "nishkar" the law attaches such a presumption D to the entry in the remarks column and if, as I think, this (sic) connotes that the landlord''s right to have rent assessed is red by limitation, the Plaintiff''s suit must fail, unless this presumption of correctness is rebutted. This was what was (sic) in Monmotha Nath Mukherjee v. Sindhubala Debi (supra) in my judgment rightly.

It was finally contended by Mr. Mukherji that in this case presumption of correctness of the entry of nishkar and the (sic) in the remarks column as regards the basis of the former (sic) has been rebutted by the Defendant''s pleadings in the (sic) statement and the Defendant''s evidence in court. In judgment, this contention should prevail. Beading the (sic) statement as a whole, I have no hesitation in concluding that the Defendants do not claim that the Plaintiff''s right assess rent has been barred, but that the Plaintiff and predecessor had never such right at all, as this land (sic) formed part of the patni, being outside the zemindar''s assets. Adverse possession has indeed been pleaded; but (sic) with the context, it clearly means possession on the (sic) assertion that the land is outside the patni. There is not word in the written statement about any demand and (sic) rent.

Again, giving evidence in court, Defendant No. 1 made statement "we were not present at the settlement operation. This must be taken to mean that neither the Defendants anybody on their behalf was present. When, therefore, entry says it must an incorrect statement, for it is not conceivable that some (sic) other than the Defendants proved the bar of limitation.

My conclusion, therefore, is that the presumption of correctness of the entry in the remarks column has been rebutted, consequently, the presumption of correctness of the entry nishkar which is strictly based on the conclusion as (sic) limitation has also been rebutted.

The appeal is, accordingly, dismissed. We would make order as to costs.

P.N. Mookerjee J.

I agree that this appeal should dismissed. I have come to this conclusion on the short (sic) that upon their written statement it is not open to the Defendant to plead that the Plaintiff''s right to get rent assessed for lands in suit is time-barred on account of demand and refusal beyond twelve years of the date of the present suit and that presumption of correctness, if any, attaching to the in the record-of -right has been, on the materials on record, amply rebutted.

In the above view of the matter, it is not necessary for me consider the correctness or otherwise of the decision in Monmohan Nath Mukherjee v. Sindhubala Debi (supra) or the precise meaning of the word "authority" in Clause (j) of Section 102 of the Ben Tenancy Act (which was one of the particulars specified in order u/s 101 of the Act in the present case) or the ex scope and effect of the decision in Jagdeo Narain Singh Baldeo Singh (supra) so far as it bears on the entry nishkar in record-of-rights and I express no opinion on the said questions.

I agree with my learned brother in holding that in the written statement filed in the present suit there is no case to the (sic) that the Plaintiff''s claim to have rent assessed for the suit (sic) is barred by reason of demand and refusal beyond the statutory period. The Defendants, therefore, cannot be allowed raise any such contention. Even granting that such a plea in be raised in the present suit, there is, in my opinion, no evidence in support of the same, the presumption, if any, of the settlement Records in favour of such a contention being, as ready indicated, amply rebutted in the present case. My (sic) brother has in his judgment given reasons for a finding such rebuttal. With those reasons I respectfully agree, hose reasons are, to my mind, unassailable in the facts of the resent case and sufficient for the dismissal of the present appeal, would, accordingly, dismiss this appeal and affirm the decree : the learned Subordinate Judge.