Kameshwar Singh Bahadur vs Ramji Misser and Others

Dhavle, J.—This is an appeal by the contesting defendant, the landlord of the village. One Bokaidas Bairagi conveyed some six bighas of land in Baijupati in rent free milik right by a registered kabala of 1283 Fasli to the father of the plaintiffs. The vendee, according to the plaintiffs'' case, came into possession under the kabala, and since his death the plaintiffs have been in possession without payment of any rent to the landlord. The Koshi Diara settlement was completed in December 1925; and in the record of rights which formed part of those proceedings three plots, which are said by the plaintiffs to be included in Bokaidas'' kabala, were entered in the name of the plaintiffs as "malguzar istamrari nahin" and were assessed with rent, while two other plots were recorded in the names of defendants 2 and 3 as raiyats under defendant 1.

Plaintiffs accordingly sued for a declaration of their rent-free milik title to all the five plots in dispute and other reliefs. Defendants 2 and 3 supported the plaintiffs and claimed no right whatsoever to plots 4 and 5.

The landlord who alone contested the suit said that all the land had been his partigairmazrua, that plots 4 and 5 had been settled by him with defendants 2 and 3 as raiyats "as per jamabandi Nos. 116-116," that the plaintiffs had no title, rent-free or otherwise, to any of the five plots in suit, but that some persons had squatted on plots 1-3 "sometime after 1316 Fasli when the land became fit for cultivation . . . ." and that the plaintiffs won over these squatters and falsely claimed the lands as milik before the Settlement Officer on the strength of Bokaidas''s kabala.

According to this defendant the kabala was spurious and was found to be so by the Settlement Officer, and the plaintiffs'' claim to hold the land as rent-free milik was rightly disallowed by the settlement authorities and the land properly entered as kabillagan and assessed to rent. Evidence was adduced on both sides and the trial Court found that the kabala sat up by the plaintiffs was genuine and covered the lands in suit, that the lands were not the landlord''s gairmazrua khas, that the plaintiffs had been in possession of the lands since the purchase of 1283 Fasli from Bokaidas, and that they had been so in possession without payment of any rent to the landlord and on the assertion of their milik right to the lands to the knowledge of the local agents of the landlord and had thus acquired a milik right to the lands by adverse possession for more than 12 years. The suit was accordingly decreed.

The landlord appealed, and this appeal, which was heard by the additional District Judge, failed, the findings of the appellate Court being substantially identical with those of the trial Court and the conclusion being that:

It will therefore not be unfair to hold that the plaintiffs acquired rent-free milik right to the disputed lands by virtue of adverse possession or to presume that their possession was based on a lost rent-free grant.

The learned advocate for the landlord appellant has urged, in the first place, that it has not been satisfactorily established that the lands in suit are covered by the kabala of 1283. The finding of the lower Courts on this point is concurrent, and it is a finding of fact. The learned advocate has however laid stress on the repeated observations of the trial Court that the boundaries of 51 years ago cannot be expected to tally with the present boundaries. I do not see any legal difficulty in reaching the conclusion arrived at by both the lower Courts that notwithstanding that circumstance, the lands in suit are actually covered by the kabala.

The trial Court rested its conclusion on the point on such circumstances as the following: Not one witness was called from the village to say that the plaintiffs were not in possession; plaintiffs'' witnesses were disinterested, plaintiffs'' present possession was unquestionably on the basis of the kabala, and the long continued possession on such a basis shows that the kabala covered the disputed land. The lower appellate Court in its judgment (which was one of affirmance) has also referred to the circumstance that the plaintiffs -do not appear to have any other lands in the village, and to the failure of the landlord to make out by the best evidence in his possession that the lands in suit were his gairmazrua khas, together with the disclaimer of defendants 2 and 3. The learned advocate for the appellant has urged that the landlord should not be prejudiced by this disclaimer in view of the fact that the record of rights is in his favour; and in support of this he has cited an unreported decision of Rowland, J., in Second Appeal 449 of 1930 (decided on 11th July 1931).

Rowland, J., however merely referred to Abhiram v. Chintamani AIR 1927 Pat 164 in which it was pointed out that the presumption of correctness attaches to the record of rights even though both the parties may challenge the record.

In the present case, moreover the conclusion of the lower Courts does not merely rest on the disclaimer, for there is the positive evidence of possession adduced on behalf of the plaintiffs, contrary to the record of rights in respect of plots 4 and 5, and the failure of the landlord to produce his jamabandis and other available papers and to examine the old patwari who, rather than the present patwari (the only witness examined by the landlord), must have had personal knowledge of the settlement if it had been a fact. I am therefore unable to accept the contention that the concurrent finding of fact that the lands in suit are covered by the kabala of 1283 ought to be interfered with in second appeal.

It has also been urged on behalf of the appellant that as he is the admitted landlord of the village, it was for the plaintiffs to establish their alleged rent-free title, and that this onus was rendered heavier by the circumstance that the record of rights with its statutory presumption of correctness was in the appellant''s favour. These contentions are undoubtedly sound, but the learned advocate was unable to point to any passage in the judgments below where it could be said that the onus had been misplaced. It is plain that the lower Courts have held on the evidence that the record of rights has been rebutted and that the onus of establishing their rent-free title has been discharged by the plaintiffs.

The earned advocate has, in this connexion, contended that Bokaidas''s kabala was not admissible in evidence against him. The kabala is however on a stronger footing than the ekrarnama in the plaintiffs'' favour in Sabran v. Odoy Mahto AIR 1922 Pat 488 which was held admissible under both clauses of Section 13, Evidence Act, in somewhat similar circumstances. That kabala is the title deed of the plaintiffs, and it seems tome clearly admissible in evidence: see Ray Monmotha Nath Mitter Vs. Rajeswar Rai Chowdhury and Another, , per Mitter, J., at p. 369 and Kiran Chandra Roy and Others Vs. Srinath Chakravarti and Others, . Further, one of the vital points in the present case is the nature of plaintiffs'' admitted possession of part of the land in suit, and the kabala would certainly be relevant at least on this point, not that I desire to express any dissent from the view taken in the cases referred to, that the document would be admissible as a whole u/s 13, Evidence Act.

It has also been contended on behalf of the appellant that mere non-payment of rent for a long time does not suffice to make the land rent-free and that it has not been found by the lower Courts from what time the appellant has had knowledge of the rent-free title claimed by the plaintiffs. The trial Court found that the plaintiffs had been in possession of the disputed land clearly for more than 12 years adversely to that of defendant 1 without payment of rent to the defendant, and this was after reference to plaintiffs'' continued possession of the disputed land for the last 51 years and also to the demands for rent made by the servants of defendant 1 from the plaintiffs. The lower appellate Court apparently accepts the evidence of plaintiff 1 to the effect that:

the local agents of defendant 1 all along knew that the plaintiffs held possession of the disputed land in a milik rent-free right.

There is therefore no substance in the contention that it has not been found from what time the defendant had knowledge of the plaintiffs rent-free claim. As regards the inference of a rent-fee right from the mere long possession without payment of rent, the relevant case law was considered by Rowland, J., in S.A. 449 of 1930. As was pointed out in the case from Kiran Chandra Roy and Others Vs. Srinath Chakravarti and Others, already referred to, their Lordships of the Judicial Committee were not satisfied in Jagdeo Narain v. Baldeo Singh AIR 1922 PC 272 that the tenant had in fact succeeded in proving a grant from the zamindar to enable him to hold without payment of rent land lying within the ambit of the zamindari.

But cases do occur where the presumption can be legitimately raised that a rent-free claim was based upon a grant which is now lost, though care must always be taken to see in these cases that long possession is clearly established to have been enjoyed under a definite claim of right in such a manner that in the circumstances it was likely to have attracted the notice of the person whose rights are adversely affected by such a claim. Chakravarti, J., who made these observations in the case from Kiran Chandra Roy and Others Vs. Srinath Chakravarti and Others, explains how it depends upon the circumstances of each case whether a presumption of a lost grant should or should not arise, and remarks that it is only in raise cases that an ancient grant which has survived climatic influence, the ravages of white ants, destruction by fire, etc. is now available for production in Court

His observations refer to lower Bengal, but the present case comes from Purnea where the local conditions in this respect are not materially different. Adverse possession rather than the theory of a lost grant was considered by the trial Court. The lower appellate Court agreed with the trial Court on the point of adverse possession; but also found as an alternative that the circumstances legitimately warranted the presumption that the plaintiffs'' possession was based on a lost rent-free grant. This latter was well within the principles laid down in the case'' last referred to. The contentions urged on behalf of the appellant must therefore be overruled. The appeal fails and is dismissed with costs.