Chandra Mouleshar Prasad Singh vs Hemnalini Debi and Others

Kulwant Sahay, J.—These 14 appeals arise out of suits brought by the plaintiff for declaration of title to and recovery of possession of certain lands and houses. The plaintiff is the purchaser of the entire estate bearing Touzi No. 6104 of the Monghyr Collectorate at a sales for arrears of revenue held on the 25th of March 1913. She obtained delivery of possession on the 16th of September 1913 and her name has been registered as proprietor of the 16 annas of the estate. The present suits are for declaration that the lands and houses in dispute are included in this Touzi No. 6104 and, therefore, by virtue of the purchase at the revenue sale she had acquired a title thereto and is entitled to possession. There was an alternative relief prayed for fixing a fair and equitable rent.

It has been necessary to deal with these appeals separately as the subject-matters of the suits are different and the points raised are not exactly the same in each case.

Appeal Nos. 150 and 288 of 1924.

These appeals arise out of Suit No. 454 of 1920 which was Appeal No. 78 of 1922 before the District Judge. Appeal No. 150 is by the defendant and Appeal No. 288 by the plaintiff. In this suit the plaintiff claimed a tank known as. Laloopokhar which was in the exclusive possession of the defendant, the Maharaja of Girdhur. The plaintiff claims a 4 annas share in this tank as lying within her Touzi and alleges that she is entitled to possession thereof on dispossessing the Maharaja. The defence of the Maharaja was that he had a lakhiraj title to this tank as it was included within an area of 30 bighas of lakhiraj land purchased by him in 1882 and it was not included in the mal land of the Touzi. The Munsif dismissed the suit holding that the tank was ijmal and that the Maharaja had a lakhiraj title thereto. The learned District Judge has found that a 2 annas share of the tank was allotted by batwara to Touzi No. 6104 and that the Maharaja, had failed to prove that the 30 bighas of land purchased by him, within which this tank was situated, was lakhiraj land at the time of the Permanent Settlement. He however, held that the plaintiff was not entitled to oust the Maharaja from possession as the tank came within the 4th Exception to Section 37 of Act 11 of 1859 but was entitled to recover rent for a 2 annas share of the tank. He, however, held that the rent could not assessed in the present suit as the remaining 14 annas proprietors were not before the Court and he accordingly dismissed the suit.

The Maharaja appeals against this decree, in so far as it is against him in Second Appeal No 150 of 1924 and the plaintiff appeals against the decree dismissing the suit in Second Appeal No. 288 of 1924.

The mahal out of which Touzi No. 6104 was carved out was partitioned twice, once in 1868 and again in 1880. The touzi number of the original mahal was 424. In partition of 1868 half of the tank was allotted to the estate which retained the old Touzi No. 424. In the partition of 1880, which was a partition of the estate which retained the old Touzi No. 424, the tank was not divided, but the income derived from the tank was divided. One-fourth of the income of this tank was by this partition allotted to the putti of Darwesh Muhammad and others, which was given Touzi No. 6104. Now this one fourth was of the one-half of the tank which was allotted to Touzi No. 424 by the partition of 1868. Therefore, what was allotted to the putti of Darwesh Muhammad and others bearing Touzi No. 6104 was one forth of one-half, i.e. one-eighth of the tank. The learned District Judge therefore found that a 2 annas share of the tank was allotted to Touzi No. 6104. This finding is supported by the batwara khasra of 1868 (Ex. Z 7) and the 16 column register of 1880 (Ex. 12a). It is also supported by the other batwara papers referred to by the learned District Judge. The finding of the learned Judge, therefore, that a 2 annas share of the tank was included in Touzi No. 6104 is based on the evidence in the case and must be accepted as correct.

The question is whether the plaintiff is entitled to oust the Maharaja on a declaration that the latter had no lakhiraj interest therein. As stated above the Maharaja claims title to this tank as included in 30 bighas of lakhiraj land purchased by him from Sardharilal under a deed of sale, Ex. A, dated the 10th of August 1882. These 30 bighas of land were purchased by Girdharilal the father of Sardharilal, at a Court sale on the 2nd of October 1852, Ex. X (a) is a sale certificate of Giridharilal. It appears, however, that a suit had to be brought by Sardharilal for khas possession of these 30 bighas of land, and he obtained a decree on the 9th of May 1863 and obtained delivery of possession in August 1866. The patwarana dakhaldehani, under which Sardharilal obtained possession is Ex. W. and is dated the 17th of March 1866. ln the sale certificate, Ex. X (a) the property is described 30 bighas situate in Laloopokhar in Mouza Salempur Dhamdaha, pergana Monghyr. There is no mention therein that the land was lakhiraj. In the parwana dakhaldehani (Ex. W.) description of the property is similar to that in the sale certificate Ex. X (a), but there is a further description that the land was lakhiraj. The learned Munsif held that the land must have been held to be lakhiraj in the civil suit brought by Sardharilal and that the description or lakhiraj in the the sale certificate might have been omitted by mistake. The learned District Judge, however, observed that there is no reason to suppose that there was a mistake in the description of the property in the sale certificate; he infers that the lakhiraj title might have been created between 1852 1866, He however, found that the Maharaja was actually in possession and no rent was paid by him for these 30 bighas of land, but he was of opinion that this does not establish that the land was lakhiraj since the time of the Permanent Settlement as required by Section 37 of Act XI of 1859.

The point taken by the learned Counsel for the Maharaja, appellant, is that the learned District Judge has misplaced the onus of proof upon the Maharaja, to show that the land was lakhiraj from the time of the Permanent Settlement.. He contends that it was for the plaintiff to prove that the land was included in the Permanent Settlement in mal land of the estate, and that the onus was upon the plaintiff to prove that the land was mal land at the time of the Permanent Settlement. In my opinion this contention is sound and ought to prevail.

Section 37 of Act XI of 1859 provides that a purchaser of an entire estate shall acquire the estate free from all encumbrances which may have been imposed upon it after the time of the Permanent Settlement, and shall be entitled to avoid and annul all under tenures and forth with to eject all under-tenants with certain exceptions. In Hurryhur Mookhopadya v. Madub Chunder Baboo (1871) 14 MI 152 it was held by the Privy Council that a plaintiff in a suit for resumption of land as part of his mal zamindari, for assessment it bound in the first instance to prove a prima facie case of payment of rent since 1790 or that the land formed part of the mal assets of the estate at the Decennial Settlement. When such a prima facie case is made out the onus probandi is shifted on to the defendant who, to exempt himself from assessment must show that his tenure existed rent-free before that 1st of December 1790. Their Lordships observed:

If this class of cases is taken out of the special and exceptions legislation concerning resumption suits, it follows that it lies upon the plaintiff to prove a prima facie case. His case is that his mal land has, since 1790, been converted into lakhiraj. He is surely bound to give some evidence that his land was once mal.

Their Lordships further observed that:

He (plaintiff) may do it by proving payment of rent at sometime since 1790, or by documentary or other proof, that the land in question formed part of the mal assets of the estate at the Decennial settlement. His prima facie case once proved, the burden of proof is shifted on the defendant, who must make out that his tenure existed before December 1790.

The principle enunciated by the Privy Council in this case is applicable to the present case. The plaintiff has to prove in the present case that at the time of the Permanent Settlement the land was included within the estate permanently settled as mal land. This principle has been followed in the Courts in India in a large number of cases. In Krishna Kalyani Basi v. R. Brauafield AIR 1916 Cal 85 it was held by a Division Bench of the Calcutta High Court that a purchaser of an entire estate sold for arrears of revenue suing to recover land claimed by the defendant as lakhiraj must prove a prima facie case that his mal land has, since 1790, been converted into lakhiraj. The fact that the lands are within the ambit of the estate is not sufficient to meet this burden. In Abdul Rahman Kazi v. Baikunth Nath Roy Choudhury AIR 1918 Cal 536 the same view was taken by another Division Bench of the Calcutta High Court. As was observed by Mookerjee, J., in the last case, the rule is that the purchaser of an entire estate at a sale for arrears of revenue takes the estate as created at the time of the Permanent Settlement, and the question is reduced to this: Has the plaintiff established that these lands were included in the estate at the time of the Permanent Settlement; in other words, was the revenue assessed on the basis Of the assets of these lands? It is clear, therefore, that in order to succeed, the plaintiff in the present case must make out a prima facie case that at the time of the Permanent Settlement the land in dispute was mal land and was included in the estate as such, and that the revenue assessed upon the estate was fixed on consideration of the assets of the land in dispute; in other words, that the assets of the land were taken into account in settling the revenue at the time of the Permanent Settlement. It appears from the decisions of the Courts below that there is a total absence of such evidence on the part of the plaintiff. Learned Counsel for the plaintiff is unable to point to a single piece of evidence showing that the land in dispute was treated as mal land at the time of the Permanent Settlement. The Defendant Maharaja has proved that at least since the year 1866 no rent has been paid for the 30 bighas of land within which the tank in dispute is situate. The learned District Judge has relied on the absence of the description of the land as lakhiraj in the sale certificate Ex. (a): This, in my opinion, is not sufficient in law to show that the land was mal at the time of the Permanent Settlement.,

Under the circumstances, I am of opinion that the decision of the learned District Judge that the land was not lakhiraj land, and that the plaintiff was entitled to possession of the land but for Exception (4) to Section 37 of the Act, is not sound. The plaintiff having failed to prove that the land was mal at the time of the Permanent Settlement her suit for declaration of title and possession in respect of this tank must fail. In this view of the case it becomes immaterial to consider the appeal of the plaintiff, namely, Second Appeal No. 288 of 1924. Her contention in this appeal is that the learned District Judge was wrong in holding that the case came within Exception (4) to Section 37 of the Act, and that she was entitled to oust the Maharaja from possession, or in any event, she was entitled to have a rent assessed in respect of the two annas share of the tank which the District Judge had found to appertain to her estate Touzi No. 6104 and that the proprietors of the remaining 14 annas were not necessary parties to the suit.

As regards Exception (4) to Section 37 of the Act it is contended that there is no plea in the written statement that the tank came within the exception. It is also contended that the leases referred to in the Exception 4 must be leases of lands for the purpose of excavating tanks thereon. In my opinion neither of these contentions can prevail. The defence of the defendant in the present case was that the entire area of 30 bighas within which the tank in dispute was situate was lakhiraj land, and the mere omission of the defendant to take the plea of Exception (4) to Section 37 in the written statement will not entitle the plaintiff to a decree for possession.

As regards the second contention, the language of Exception 4 does not warrant the construction sought to be placed upon it by the learned Counsel. It does not say that in order to bring the case within this exception the lease must be a lease for the purpose of excavating a tank thereon. Reliance was placed upon the decision of the Calcutta High Court in Asmat Ali v. Hasmat Khan (1897) 2 CWN 412 where it was held that a lease of a tank without any portion of the surrounding land is not protected under Clause (4), Section 37 of Act XI of 1859, as it was not within the meaning of that clause a lease of land whereon a tank has been excavated. This case has clearly no application to the facts of the present case. In the present case the lease is of 30 bighas of land upon which stands the tank in dispute.

As regards the contention that rent ought to have been assessed for two annas share of the tank even in the absence of the proprietors of the remaining 14 annas share reliance has been placed upon Kamal Kumari Chowdhurani v. Kiran Chandra Roy (1897) 2 CWN 229. That was not a case for assessment of rent and in that case the plaintiffs did not ask for direct or actual possession of the land, but indirect or constructive possession by a receipt of rent to the extent of their share from the cultivating tenants upon a declaration that the intermediate tenure was cancelled by the sale for arrears of revenue. That case is clearly distinguishable from the facts of the present case.

The result is that Suit No. 454 of 1920 must be dismissed with costs. Appeal No. 150 of 1924 of the Defendant Maharaja is decreed, and Appeal No. 288 of 1924 of the plaintiff-appellant is dismissed. The Defendant Maharaja will be entitled to his costs in all the Courts. There will however be only one hearing fee in the two second appeals in this Court.

Second Appeals Nos. 151, 152, 153, 291, 296 and 295 of 1924.

These six appeals arise out of three suits Nos. 453, 456 and 483; the corresponding appeals before the District Judge being No. 90, 79 and 82. Appeals NOS. 151, 152 and 153 are by the Maharaja of Girdhaur and appeals Nos. 291, 296 and 295 are by the plaintiff. Suits No. 353 and 456 relate to certain raiyati lands and Suit No. 483 relates to a house which forms part of the 30 bibighas of lakhiraj land referred to in Suit No. 454. In these suits the raiyati lands and the house are held by tenants who took settlement thereof from the Maharaja defendant and these tenants are also parties to the suits.

The learned Munsif found the land to be lakhiraj of the Maharaja and he held that the tenant defendants could not be ousted. The learned District Judge has held that the lands lie in the plaintiff''s Touzi No. 6104 and they are situated within the 33 bighas purchased by the Maharaja and that the tenants have been paying rent to the Maharaja. He however found, found that the 30 bighas of land was not lakhiraj since the time of the Permanent Settlement and that therefore the Maharaja defendant was liable to ejectment u/s 37 of Act XI of 1859. In Suits Nos. 453 and 456 the plaintiff wanted to oust the tenant defendants because in a previous suit for rent instituted by her, these defendants had denied her title as landlord and had set up the Maharaja''s title, and the plaintiff seeks to dispossess the tenants on the ground of forfeiture by denial of her title. The learned District Judge has held that the denial of the title by the tenants was a bona fide assertion on their part inasmuch as that took settlement of the lands from the Maharaja and had been paying rent to him. As regards Suit No. 483 which was for the house in possession of the defendant Latit Mian, there was no denial of title of the plaintiff by the tenant, but the learned District Judge found that this case came with within Exception (4) to Section 37 Act XI of 1859 inasmuch as the house was a permanent building erected upon the land. The result was that the learned District Judge gave a decree to the plaintiff for possession as landlord by ousting the Maharaja defendant, and made a declaration that the plaintiff was entitled to recover rent from the tenant defendants of rates paid by them to the Maharaja.

The points raised in the appeals of the Maharaja are the same as in Appeal No. 150 arising out Suit No. 454 dealt with above. The lands and the house form part of the 30 bighas of the lakhiraj land purchased by the Maharaja and which has continued to be lakhiraj at least since the year 1866. The onus being on the plaintiff to show that the land was included in the mal lands of the estate at the time of the Permanent Settlement, and there being absolutely no evidence on that point, the plaintiff in not entitled to a declaration of her title as landlord and she is not entitled to oust the Maharaja defendant. The being so, it follows that the tenant defendants cannot be ousted either. Moreover, the denial of title of the plaintiff was at a time when the plaintiff really was not the landlord, but the Maharaja was the landlord. Even, assuming that the lakhiraj set up by the Maharaja was an encumbrance which could be annulled u/s 37 of the Act, such annulment had not taken place at the time the plaintiff had brought her rent suits. The encumbrance is not annulled ipso facto by the revenue sale; the purchaser at the revenue sale has to take steps to annul the encumbrance, and at the time the rent suits had been instituted the plaintiff had taken no steps to annul the encumbrance and the Maharaja was really the landlord of the tenants and their denial of the title of the plaintiff was correct.

As regards Suit No. 483, the house is no doubt not a masonry house, but the finding is that it is a permanent house and even if the Maharaja was liable to ejectment, the tenant defendant in Suit No. 483 was not liable to ejectment.

The result is that these three suits, Nos. 453, 456 and 483 will be dismissed with costs. Appeals Nos. 151, 152 and 153 will be decreed with costs; Appeals Nos. 291, 296 and 295 will be dismissed but without costs. (His Lordship then dealt with the other appeals and agreeing with the finding of the District Judge dismissed them.)

Ross, J.

I agree.