Haripada Chowdhury vs Ramkrishna Roy and Others

S.R. Das Gupta, J.—This is an appeal against a decision of the Sub-ordinate Judge, Additional Court, Hooghly, dated the 20th May, 1950, affirming the decision of the Munsif, First Court, Arambagh, dated the 5th March, 1949. The plaintiff is the appellant before us. The suit out of which this appeal arises was a suit for recovery of rent at the rate of Rs. 9 per year, in the alternative for assessment of fair rent. The plaintiff is the owner of the touzi within which the land in question is situate. On the 28th February, 1936, and on the 29th October, 1936, the record-of rights relating to this land was finally published. The record-of rights so far as it relates to the plaintiff records the land as ''Bajeyapti Lakheraj'' land belonging to the plaintiff (C.S. record, Ext. 1). The portion of the record-of-rights which relates to the defendant (Ext. f, Khatian No. 7) describes these plots as possessed by the defendants in The plaintiff''s case was that the land in question formed part of the mal assets and that rent was paid by the defendants up to the year 1650 B. S. but from 1351 B.S. a different attitude was taken up by them and payment of rent has been stopped. The defendants case is that the land is a nishkar land and that the plaintiff is not in any way entitled to recover any rent in respect thereof from them. In the written statement filed by the defendants it was expressly stated that no rent was paid in respect of the said land and nobody has or had any right to claim such rent and that the defendants were enjoying the said land in nishkar. In support of the said case the defendants produced at the trial a kobala executed by the plaintiff''s grand-father in favour of one Sriram Chowdhury regarding the land in question. The said kobala was dated the 1st October, 1894. The land in question was therein described as nishkar land. It should be stated that the interest of the said Sriram Chowdhury in the said land was purchased by the defendants'' predecessor-in-interest in a court sale on the 12th March, 1913. The trial Court found in favour of the defendants and dismissed the suit. An appeal was preferred against the said decision and was heard by the Subordinate Judge, Additional Court, Hooghly, who by his order dated the 20th May, 1950, affirmed the decision of the trial court, and dismissed the appeal. Thereafter the present appeal has been filed to this Court by the plaintiff.

It appears from the judgment of the lower appellate court that the said court held that although these lands formed part of the mal assets of the zemindary owned and possessed, but that having regard to the entry in the settlement records, there was a presumption that the nishkar title belonged to the defendants or, in other words, the defendants held the said land as nishkar. The lower appellate court also held that the suit was barred by limitation and the said decision was based on the following grounds:-

The plaintiff, after the draft records was prepared, in which the defendants were recorded as holding the said lands in nishkar rights, but before its final publication, put in an objection that nishkar interest as recorded in the said draft records should be deleted and instead thereof an entry should be made describing the defendants as To that application an objection was put in by the defendants, who asserted that they were not tenants of the plaintiff but held under an independent title and were not, therefore, liable to pay rents to the plaintiff. The said application by the plaintiff and the objection by the defendants were all filed before the 18th July, 1933. The said dispute was decided by the Revenue Officer on the 18th July, 1933, and his decision was against the plaintiff. Thereafter the final record-of-rights was published and the publication took place, as I said before, in the year 1936. The present suit was filed on the 10th January, 1948, that is more than 12 years after the filing of the said petition but within 12 years from the final publication of the said record-of-rights. The learned Judge held that in view of the fact that the defendants had successfully asserted before the Revenue Officer their niskar title to this plot and to the knowledge of the present plaintiff, the suit should have been filed within 12 years from the date of such assertion but the same having been filed on the 10th January, 1948, that is more than 14 years from the date of the decision by the Revenue Officer was barred by limitation. Both these conclusions of the learned Judge have been challenged before us by the learned Advocate appearing on behalf of the appellant, It would be convenient to deal with the second question, i.e., the question of limitation first. The relevant article applicable to a suit of this nature is Article 131 of the Indian Limitation Act which reads as follows:

Description of Suit.

Period of limitation.

Time from which period begins to run.

To establish a periodically recurring right.

Twelve years.

When the plaintiff is first refused the enjoyment of the right.

The question which arises is whether or not the defendants refused the enjoyment of the right claimed by the plaintiff, that is the right to receive rent and or to have the rent assessed : in other words whether the assertion by the defendants in the proceedings had before the Revenue Officer that the plaintiff has no right to realise rent from them and that they held the said land in nishkar title amounted to such refusal. The learned Judge, as I have said, seems to think that the same amounted to refusal. I am in entire agreement with the said view. The learned Advocate for the appellant contended before us. and that contention is supported by some authorities of this Court, that in order to attract the provisions of Article 131 of the Limitation Act there must be a demand and a refusal. The case on which the learned Advocate mainly relied is Manohar Das Vs. Charu Chandra Pal and Others, . In that case Mr. Justice Lahiri sitting with Mr. Justice Guha observed as follows:

As there is no evidence of any demand or refusal it is clear that Article 131. Limitation Act, does not apply. Therefore, the plaintiff''s suit can not be said to be barred under that Article.

It must be conceded that ordinarily a demand and a refusal would be necessary to be established before a suit can be said to be barred under Article 131 of the Indian Limitation Act. But, in my opinion, it cannot be laid down as an inflexible rule that in all cases there must be a demand before there can be refusal on the part of the defendant. Cases may very well be conceived where without any demand from the plaintiff the defendant may have refused the enjoyment of the right claimed by the plaintiff. The present case in my opinion is one of such cases. The defendants'' assertion made in the clearest possible terms that they were not liable to pay rent to the plaintiff and that they were holding the land in question in their own rights as nishkar lands, to the knowledge of the plaintiff, in my opinion, amounted to a refusal within the meaning of Article 131 of the Limitation Act. In other words, if a person asserts in the presence of the other party that the latter is not entitled to claim any rent from him and that no payment of rent will be made to him, does it still require a demand to be made by the person who claims such rent to make such assertion tantamount to a refusal ? In my opinion in such cases there is a clear refusal although not preceded by a demand from the other party. As for the observations of their Lordships Mr. Justice Lahiri and Mr. Justice Guha to which I have referred all that I need say is that the circumstances of the case which was before their Lordships were not the same as those in the present case. In other words their Lordships were not called upon to consider a case like the present and the question which now arises before us, namely, whether or not, having regard to the fact that there was clear refusal on the part of the defendant in presence of the plaintiff it was still necessary that there must be a demand from the other party, did not arise for their Lordships'' consideration. The matter does not rest here. There are decisions of this Court on this point and one of such decisions at least clearly supports the contention which is urged before us by the learned Advocate for the respondent. In the case of Kali Mohan Tripura v. Maharaja Birendra Kishore (2) (22 C.L.J. 309) Mr. Justice Mookerjee sitting with Mr. Justice Beachcroft in the same set of circumstances which are now before us, took the same view which we are now taking in this case. That was also a case where the plaintiff came into Court with the allegation that the defendant, a tenant within his estate, had encroached upon the land in dispute and was consequently liable to pay rent in respect thereof. The defendant resisted the claim on the ground that he held the land under a rent-free grant made to his ancestor in order that a tank might be excavated thereon. He denied that he had encroached on the disputed land and further pleaded that if his rent-free title was not established, the claim for assessment of rent was barred by limitation. The Court of first instance found that the defendant had a rent-free title and dismissed the suit. Upon appeal the District Judge reversed that decision and assessed rent on the disputed land. The matter thereafter came up to this Court for; decision. In deciding the question of limitation their Lordships held as follows:

But even if it be assumed that the defendant does not hold the land under a rent-free grant, it is plain that the claim for assessment of rent is barred by limitation. The defendant asserted to the knowledge of the plaintiff, in the course of settlement proceedings, on the 7th April, 1897, that he was under no obligation to pay rent and that the claim then put forward by the plaintiff for assessment of rent was entirely unfounded. This suit was not instituted till the 8th September, 1909. It is thus clear from every point of view that the plaintiff cannot succeed.

These observations apply with equal force to the case which is now before us. In this case also there was an assertion to the knowledge of the plaintiff in the course of the settlement proceedings to the effect that the defendants were under no obligation to pay any rent to the plaintiff and the present suit has been brought more than 12 years after that assertion and must therefore be held to be barred. If however the matter now before US has to be decided with reference to the question of adverse possession, even then, there is no difficulty in the way of the defendants. Although there is no express statement to the effect that the plaintiff''s claim is barred by adverse possession, the averments made in the written statement in my opinion amount in substance to averments of adverse possession. It has been stated in the written statement that the defendants never paid rent and nobody has any right to claim any rent from them and the defendants were enjoying the said lands in their nishkar right and that the plaintiff''s claim is barred by limitation. As I said before, the plea of adverse possession has in substance been taken although the term "adverse possession" has not been specifically used in the said written statement. Judging from this point of view as well, the plaintiff''s suit must be held to be barred by limitation.

I now come to the other question dealt with by the lower appellate Court. Mr. Roy Chowdhury appearing on be-half of the respondents conceded before us that where it is proved that the land in question formed part of the mal assets of the plaintiff, the onus would be Upon the defendant-tenants to show that no rent is payable in respect of the same. Mr. Roy Chowdhury also conceded that the view taken by the learned Judge, namely, that the settlement records in this case raised a presumption that nishkar title belonged to the defendants was wrong. He did not dispute that in view of the recent decision of this Court in. the case of Indra Narayan Bhattacherjee v. Phanindra Lal Sen, (3) (58 C.W.N. 586), where it has been held that the word ''nishkar'' when it appears in the record-of-rights by itself does not necessarily mean rent-free tenancy bat only means that the tenant is not in fact paying rent to anybody, the view taken by the learned Judge cannot be said to be right. But, he contended that in this case the defendants have sufficiently discharged the said onus. In the first place, Mr. Roy Chowdhury urged that his clients had produced their document of title, that is to say, document by which they are claiming title. The kobala granted by the plaintiff''s grand-father on the 1st October, 1894, in favour of Sriram Chowdhury through whom the defendants claim the lands in suit shows quite clearly that the plaintiff cannot claim any rent from the defendants and the defendants are not liable to pay the same. In my opinion, this contention of Mr. Roy Chowdhury should be accepted. In this case the defendants have proved by documentary evidence their right to hold the land free from any claim for rent from the plaintiff. I am also of the opinion that having regard to what had happened in section 103 proceedings before the Revenue Officer the entry in the settlement records has to be read not as meaning that the defendants are not in fact paying any rent to anybody but also as meaning that the defendants are not liable to pay any rent to the plaintiff. I have already said that before the Revenue Officer the plaintiff asserted that the entry in the draft record should be corrected by deleting there from the word ''nishkar'' and by inserting therein the words to show that the defendants are assessable to rent and they should be recorded as The defendants filed an objection to the said petition in which they asserted that they were not liable to pay any rent to the plaintiff and they were holding the said land as nishkar land. This question was gone into by the Revenue Officer and he gave a decision in favour of the defendants and against the plaintiff. Thereafter the record-of-rights was finally published. In those circumstances it would be right to hold that the use of the word ''nishkar'' appearing in the record-of-rights does not only indicate that the tenant is not in fact paying rent to anybody but something more, that is to say, that the tenant is not liable to pay rent to anybody. This view gets some support from the decision of their Lordships Rankin, C.J., and Mukherji, J., in the case of Adu Mondal v. Hira Lal (4) (33 C.W.N. 196) wherein their Lordships observed as follows. "It is quite open to a party who seeks to rebut a presumption arising out of an entry in the settlement records to show by a reference to the proceedings that had been taken by the revenue authorities that the entry itself is wrong or is one which should not be taken at its face value." In my opinion the facts and circumstances indicate the real import of the entry in the record-of-rights which is that the tenant is not only not paying rent to anybody but is not liable to pay such rent. We also hold in favour of Mr. Roy Chowdhury''s contention, namely, that the defendants have discharged the onus which lies upon them to show that the land in question was in fact nishkar on another ground. In the case of Sashi Bhusan Biswas v. Bhowampore Zemindary Co., Ltd., (5) (58 C.W.N. 288). it was held that the presumption raised by the settlement records was rebutted by the sole fact that the plaintiff was in long possession without payment of rent. From that fact an inference was drawn that the lands were held in lakheraj right. In a recent case, decided by myself and my learned brother, we have agreed with the said view. In this case also there is ample evidence to show that the defendants were in long possession without payment of rent and from this fact an inference can be drawn that the lands were held in nishkar rights. All the contentions urged by the learned Advocate for the appellant, therefore, fail and the appeal is dismissed with costs.

Guha, J.

I agree.