Jagannath Kishore Lal Singh Deo vs Bipan Mahato and Others

Meredith, J.—This is an appeal by the plaintiff from a decision of the learned District Judge of Manbhum, dated 30th March 1937, confirming a decision of the learned subordinate Judge at Purulia, dated 29th February 1936. The suit was for declaration of the plaintiff''s right of assessment of rent in respect of certain lands. There was an alternative prayer for recovery of khas possession, but that was abandoned even before the Court of first instance.

The only point for determination in the case was whether the defendants were entitled to hold the lands rent free in perpetuity. The subject-matter of the suit consisted of four tanks and the lands adjacent to them, the total area involved being 103.16 acres, equivalent to 312 bighas odd. The tanks in question are known as Burabandh, Baburambandh, Banbandh and Sitarambandh. In regard to two of these, viz., Baburambandh and Burabandh, the defendants were able to produce sanads, Exs. A and Al, dated 1211 and 1221 Fasli, respectively, that is to say 1804 and 1814, A.D. In the case of the other two there were no pattas available, and the defendants relied on the theory of lost grant.

There were disputes between the parties at the time of the survey and settlement, the plaintiff as landlord claiming that the lands should be recorded as liable to rent (kabil lagan) and the defendants claiming that these were jalsasan lands and rent-free (niskar). On this point there was a decision of the Attestation Officer after contest. This decision, Ex. A, is dated 28th January 1921, and in it the Attestation Officer held that all the lands which form the subject-matter of this suit were held by the defendants in jalsasan right. When however the record of rights was finally published on llth April 1922, three of the bandhs and the lands appertaining to them were recorded as jalsasan and the fourth, Baburambandh, was recorded as jamai. This entry of jamai seems to have been a clerical error as Baburambandh was one of those for which the defendants held a patta showing their right as jalsasan, and the Attestation Officer had come to the same conclusion with regard to all four bandhs.

In the case of all four, the entry with regard to rent was not niskar, the word usually used in Chhota Nagpur to designate rent-free title, but khajnanehi that is to say merely that no rent was being paid or "without rent." The meaning of the word jalsasan is explained in the "Guide and Glossary to the Survey and Settlement Operations in the Chota Nagpur Division" as follows:

Jalsasan.... A kind of tenancy for reclamation of waste land into rice fields with the essential condition that the tenant is to construct a tank or reservoir from which the lands to be brought under cultivation or other lands already cultivated can be irrigated. Usually the land on which the tank or reservoir is constructed and a few bighas of rice land immediately below it are given either rent-free or on a small quit rent. The remaining area brought under cultivation is assessed to rent as in the case of a nayabadi tenancy.

The Court of first instance held that the entry in the final record of rights must be construed in the light of the decision of the Attestation Officer upon the dispute before him. He therefore held that the record of rights shewed the lands as rent-free and the presumption of correctness of that record had not been rebutted. He came to a further express finding that the claim was, in any case, barred by limitation. The learned District Judge, while holding that the suit had been rightly dismissed, based his decision upon somewhat different grounds. He thought that the entry in the finally published record of rights was, to some extent, ambiguous and might not carry the presumption that the lands were held rent-free in perpetuity. He went back to the pattas in the case of two of the bandhs and their lands and held that it was clearly established by these pattas that the lands were jalsasan, and as there was no quit rent fixed in the pattas, that meant that they were rent-free.

In the case of the other two bandhs he thought there was a presumption of lost rent-free grant, and noted the significance of the fact that in the case of these lands also there were tanks and the lands were irrigated from them. He did not expressly deal with the point of limitation.

For the appellant, it is argued that the extent of these lands is much greater than the landlord could have intended to have been held rent-free in perpetuity in jalsasan grant, and reliance is placed on the definition of jalsasan which, as I have indicated, says that only a few bighas are usually held rent-free below the tanks and the remaining lands that may be irrigated from the tanks are liable to assessment of rent. It is pointed out that both the pattas which have been produced limit the amount of lands that are to be held in jalsasan right to so much land as can be cultivated with four maunds of paddy seed. This being so, it is said that a large portion of the area in suit, which consists of lands at some distance from the tanks, or high gora lands, must be liable to assessment of rent. The record of rights, it is argued, is in the landlord''s favour. It must be taken as it stands, and as the entry is not niskar and does not contain all the particulars prescribed u/s 81(6), Tenancy Act, it carries no presumption which is to be rebutted.

There is nothing before us from which we can ascertain exactly how much land appertains to each of these tanks. Nor do the Courts below appear to have applied themselves to a consideration of the amount of land that might be sown with four maunds of seed. We might therefore have had to remand the case but for one circumstance. That circumstance is that it appeara to us that the claim was undoubtedly barred by limitation, and accordingly, it is unnecessary to determine any other point.

I have indicated that the defendants before the Attestation Officer and in the presence of the plaintiff asserted their right to hold these lands rent-free as far back as January 1921. The present suit was not filed until 7th April 1934, that is to say more than twelve years after the clear assertion of the right by the tenants in the landlord''s presence. It seems clear that Article 131, Limitation Act, is applicable to this case. Article 131 relates to cases to establish periodically recurring rights and provides limitation of twelve years from the date when the plain, tiff is first refused the enjoyment of the right. In my view the open assertion by the tenants of their right to hold the land rent-free in the presence of the landlord amounted to a refusal to the plaintiff of the enjoyment of the right. There is direct authority on this point.

In Birendra Kishore v. Roshan Khan (12) 39 Cal. 453, which was a suit for recovery of possession of a tank with its banks by establishment of plaintiff''s zamindari title thereto and in the alternative for assessment of rent, the defendant pleading that the tank was rent-free and that the suit was barred by limitation, and the defendant more than twelve years before the suit in the settlement proceedings having claimed the tank as rent-free and the plaintiff''s agent having denied the claim; in such circumstances it was held a complete hostile right had been claimed by the defendant to the knowledge of the plaintiff and as no suit had been brought until more than twelve years afterwards, the suit as framed was barred by limitation.

For the appellant, reliance was placed on the Privy Council case in Jagdeo Narain v. Baldeo AIR 1922 P.C. 272, where their Lordships pointed out that when it is shown that land fell within the ambit of the zamindari, the onus to show that land as rent-free must lie upon the tenant who asserted it and that mere non-payment of rent over a period of years could not in itself give rise to a title to hold rent-free. It is argued on the basis of this decision and other decisions which have followed it that Birendra Kishore v. Roshan Khan (12) 39 Cal. 453 cannot be regarded as good law.

The cases however are entirely distinct. Their Lordships in the Privy Council, case Jagdeo Narain v. Baldeo AIR 1922 P.C. 272 did not consider the effect of the open assertion of a hostile title by the defendant to retain the lands rent-free, and that, it appears to me, is a circumstance which must alter the whole situation. It is further argued for the appellant that before limitation begins to run under Article 131 there must be a demand as well as refusal. In the present case, it is pointed out, there was no demand for rent made to the tenants by the landlord. The demand, if any, made by the landlord was only to the settlement authorities to record the existence of the right to rent which he claimed.

It appears to me that this is seeking to import something into Article 131 which it does not contain. Unlike several other articles of the Limitation Act, there is no reference to any demand in Article 131. On this point I am in agreement with the observations of Pawcett J. in Bhimabai Padappa Desai Vs. Swamirao Shriniwas Parwati, . It may be that in most cases there can hardly be refusal of a right without a previous demand for it, but there are exceptional cases and the present is one, and I cannot see how the conclusion can be avoided that the defendants before the Attestation Officer did refuse the right to the plaintiff in his presence. The subsequent entry in the finally published record of rights may possibly have been a little ambiguous, though there is much to be said for the learned subordinate Judge''s view that it must be read in the light of the Attestation Officer''s previous decision.

Even, however, if it be held that it is an ambiguous entry, it is not in any way inconsistent with the existence of the right which the defendants had set up. The position, therefore, is that the defendants asserted this right not to pay rent, and after, they had done so, they continued to hold the lands for more than twelve years without paying any rent, and, no attempt was made by the landlord to realize rent from them until he filed the present suit.

In short, in my view, the claim in the present case was clearly barred by limitation under Article 131, Limitation Act, and this being so, the decision of the Courts below must be upheld.

I would therefore dismiss this appeal with costs.

Fazl Ali J.

I agree.