Jag Sah and Another vs Srikanta Parasad and Others

Ross, J.—This is a suit by some of the owners of the shamilat patti of Mouza Repura in which is situated a plot of land 4 bighas II 11 kathas 15 dhurs in area. The plaintiffs claim to redeem this property. They alleged that the land was originally the occupancy holding of one Kunj Behari Das, a Sadhu, who was succeeded by several heirs who are now dead without heirs. In 1852 Kunj Behari Das gave the land in suit in Zarpeshgi lease to the ancestor of the defendants.

The substantive defence was that the land was not the occupancy holding of Kunj Behari Das but a Lakhiraj Brit tenure and that the plaintiffs have no right to redeem. It was also pleaded that they were not all the proprietors and, therefore, could not maintain the suit.

The Munsif held that the land was Lakhiraj Brit and that the plaintiffs as co-sharers in some of the Touzis had no right or interest in the land and consequently no right to redeem. The Subordinate Judge also held that the land was a Lakhiraj Brit tenure and that as a tenure it passed by escheat to the Crown and not to the Maliks of the village and that the plaintiffs, therefore, had no equity of redemption. He also held that |here was a defect of parties, but that nevertheless the suit was not liable to dismissal on that ground. He dismissed the appeal.

With regard to the point of defect of parties, it is sufficient to say that the plaintiffs put in a petition on the 23rd of August 1919 to add the other co-sharer landlords as parties to the suit. The defendant objected to this addition and the Munsif refused to allow it. Consequently, the respondents are not entitled to raise this point now.

The principal question in the case is, whether the plaintiffs are entitled to redeem. On this question the respondents relied on Sonet Kooer v. Himmut Bahadoor 1 C. 391 : 25 W.R. 239 : 3 I.A. 92 : 3 Sar. P.C.J. 608 : 3 Suth P.C.J. 257 : 1 Ind. Dec. 245 (P.C.) where it was held that lands belonging to Zemindary granted by the Zemindar under an absolute hereditary Muktrrari tenure, do not, on the death of the grantee without heirs, revert to the Zemindar; but the Crown by the general prerogative will take the property by escheat. In that case it was held that the Mukarrari was an absolute interest and that there was no ground for saying that the land had reverted, in the proper sense of the term, to the Zemindar. In Nil Madhab Sikdar v. Narattam Sikdar 17 C. 826 : 8 Ind. Dec. 1095 all that was said was that it seemed doubtful whether, when a landlord grants a permanent and heritable tenure in land, he has any estate left in him, and the decision in Sonet Kooer''s case 1 C. 391 : 25 W.R. 239 : 3 I.A. 92 : 3 Sar. P.C.J. 608 : 3 Suth P.C.J. 257 : 1 Ind. Dec. 245 (P.C.) was referred to. Whatever may be the result, where the tenure is permanent and heritable, it seems clear that if it is anything less than this there must be a reversion to the proprietor.

Now, the burden of establishing title by escheat is on him who assert it; Secretary of State for India v. Haibatrao Hari 28 B. 276 : 6 Bom. L.R. 43. Consequently, if the defence was to succeed in the present case, it had at least to be shown that the tenure was permanent as well as heritable. All that is found is that the tenure was rent-free and heritable. It is argued that there is nothing to show that it was not for an unlimited period and that the possession of the tenure for several generations shows that it was permanent. It is not suggested that there is any evidence of permanency except this inferential evidence and that, in my opinion, is no evidence at all. The result is that there can be no escheat. The property must revert to the proprietor on the failure of the heir of the grantee, and the plaintiffs are entitled to redeem this mortgage.

The appeal is decreed with costs and the decrees of the Courts below are set aside and there will be a decree for redemption on payment of Rs. 78-14-0 within three months from this date. If the plaintiffs fail to redeem within that period, their right to redeem will be foreclosed. The plaintiffs are entitled to mesne profits from the date of suit. The amount will be ascertained by the Court of first instance. The plaintiffs will get their costs throughout.