Kameshwar Singh Bahadur vs Shaikh Sakhawat Ali and Others

Wort, J.—This is an appeal by the plaintiff arising out of an action in which he claimed a declaration with regard to 102 bighas of land which was recorded in possession of the defendants as belagan. The plaintiff''s case is that the land is liable to assessment for rent and claims that a fair and equitable rent should be assessed by the Court. The learned Judge in the Court below has come to the conclusion that the land was rent free as the defendants alleged. The record of rights, as I have already indicated, was in favour of the defendants. The record was finally published in 1930. It would appear that in this village of Magarwara there had been a survey in 1905 of such lands as were not under the river Kosi at the time, but not (as I understand) a complete survey of the whole village at that time. One of the principal questions arising in this appeal is whether, as the defendant-respondents allege, the onus was on the plaintiff. It is contended by the respondents that, as the record of rights was in their favour, it was for the plaintiff to rebut the entry in the record. On the other hand the well-known decision in Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272 is relied upon by Mr. Murari Prasad on behalf of the plaintiff-appellant. This decision is relied upon for several propositions. This case was explained in a judgment of this Court in J.A. Stonewigg v. Kameshwar Narain Singh AIR 1923 Pat 340 and was again referred by the learned Chief Justice of this Court and Chatterjee, J. in a later case reported in the game volume. But in my judgment the decision of their Lordships of the Judicial Committee in the first-named case is explicit on the point which comes up before us for determination. Mr. Ameer Ali, delivering the opinion of their Lordships of the Judicial Committee, made this statement:

Considerable stress has been laid on this presumption on behalf of the respondents. Once, however, the landlord has proved that the land which is sought to be held rent free lies within his regularly assessed estate or mahal, the onus is shifted. In the present case, the lands in dispute lie within the ambit of the estate, which admittedly belongs to the plaintiffs and the pro forma defendants, and for which they pay the revenue assessed in the mauza. In these circumstances it lies upon those who claim to hold the lands free of obligation to pay rent, to show by satisfactory evidence that they have been relieved of this obligation either by contract or by some old grant recognised by Government.

There can be no dispute in this case that the plaintiff has established that the land in dispute is within his zamindari and is within the area assessed to revenue. There is no evidence with regard to this. But the allegations of the earlier paragraphs of the plaint and the admission contained in the written statement filed by the defendants made it unnecessary for the plaintiff to adduce evidence in this regard, and it must therefore be taken to be established that the land in suit is not only within the zamindari of the plaintiff but also within the lands assessed to revenue. The matter comes quite clearly within the principle laid down by their Lordships of the Privy Council, and in my opinion the case reported in J.A. Stonewigg v. Kameshwar Narain Singh AIR 1923 Pat 340 does not affect the application of the principle laid down by their Lordships of the Judicial Committee of the Privy Council. I might observe that there is one point of distinction between the case in J.A. Stonewigg v. Kameshwar Narain Singh AIR 1923 Pat 340 and the one before their Lordships of the Privy Council and the case before us, and that is that in the case decided by Das, J. {as he then was) there was an entry in the record of rights as to the occupancy rights of the defendants and therefore no question could arise with regard to a title adverse to the landlord. In the view I take a very considerable distinction results from that fact. That being the case the question here is whether the defendants have established their right to a rent free grant. The method of proof adopted by the defendants was the production of deeds of title which would show prima facie a rent free grant. Their immediate title was based on a sale deed by Fateh Narain Kumar to Shaikh Ghulam Ali, dated 7th April 1884. But amongst their other deeds of title was an earlier document of 19th July 1812, being a sale deed by one Mt. Sonamani Misrain to Raja Ram Kunwar and another. The defendants also produced two sanads, one dated 1758 and the other dated 1759, and in so far as they come from the possession of the defendants there might be some indication that they were entitled to a rent free grant as they asserted. But in fact we get very little assistance from the two sanads for the reason that the land was not clearly described or defined by boundaries which is the material factor in this case. Coming to the two deeds of 1812 and 1884, we see that 105 bighas of land under the deed of 1812, and described as in mauza Mangarhara, Patti Khorhari, were sold amongst other lands with which we have no concern in this case. When we come to the sale deed of 1884 the lands are described as ''out of 107 bighas of Chakla Rahtha in mauza Mangarwara'' and when we come to the boundaries given in the deed the difficulty in this case arises. The evidence in the case, in addition to the deeds to which I have referred, consists of maps, the first being the survey map of 1846, and the second the survey map prepared in 1927 which is on a larger scale. Now, the points arising on the two maps are very simple. From the map of 1846 it will be seen that the lands described in the deed of 1812, that is to say 105 bighas of Khorhari, are immediately south of village Rangpatti, Now, when we come to the deed of 1884, we find that the lands are described as Chakla Rahtha which is very considerably to the west. We find also that the eastern boundary of the 54 bighas of the 107 bighas is described as Rangpatti and that the eastern boundary of the 44 bighas as ''rent paying land in Mangarwara, Patti Rahtha.''

From the survey maps it will be seen that the defendants are now in possession of plots which are numbered from 10 to 215, but whether 215 is the highest number or not is immaterial for the purposes of this case. The most northerly plots are plots 10, 17, 19, 35, 36 and 37. They are to the immediate north of a road which is marked plot 63. This road, if extended to the north, would run to Rahtha Chakla No. 281 (so described in the survey map). In order to make the defendants'' case fit in with the survey map (and I should say in this connexion that it is not denied that the defendants are in actual possession of the plots which are marked pink on the copy of the survey map), it will be necessary to place their lands to the east of the lands of which they are in possession. But in the map of 1846 there appears to be a road running south to north to village Rangpatti. It is on this road, that according to the document of 1812 the defendants'' lands would lie, as they are described in Khorhari. The road across which the defendants'' land lie is the road much further to the west and running, as I have said, to Rahtha Chakla No. 281. It will be seen therefore that the description given in the two deeds upon which the defendants rely and that of the lands of which they are admittedly in possession do not tally.

The Judge has, with some difficulty, it appears, accepted the contention of the defendants in the Court below, as regards the boundaries given in the deed of 1884. The eastern boundary there given is Rangpatti which if accepted at its face value would be against the defendants as Rangpatti there mentioned was Rangpatti village and not, as the defendant suggested, Tola Rangpatti which was inside the village Mangarwara. Apart from bare statements of witnesses there is no evidence to support the conclusion that the boundary was Tola Rangpatti. On the sale deeds and the maps, the correctness of which is not disputed, the lands which were the subject matter of the sale deeds cannot be the lands of which the defendants are now in possession. What the true explanation of the matter is it is difficult to state. We do know, and it is a notorious fact, that the river Kosi flooded the lands of this village and in course of time they have emerged. Whether the lands of which the defendants are in possession are lands which have emerged from the river Kosi we are left in doubt. That leads me to the question of possession which has also been argued by the defendants. I do not think there can be any serious dispute and indeed the decision to which I have referred at the early part of my observations is a sufficient authority that there can be no question of adverse title by the non-payment of rent. It is true that limitation does run under Article 131, Lim. Act, but only from the date upon which there has been a demand for rent and a refusal to pay. Their Lordships of the Privy Council in the case to which I have referred, dealt with the matter in this way. They said:

Again, mere non-payment of rent or discontinuance of payment of rent has not by itself been held in India to create adverse possession. The identical question came for decision before the Calcutta High Court in Prasanna Kumar Mookherjee v. Shrikantha Rout (1913) 40 Cal 173 where Mr. Mookherjee J. affirmed the proposition in clear terms.

So far as limitation is concerned there can be no doubt that the plaintiff is not barred by limitation in his claim to the assessment of a fair rent. There is no evidence that any demand had been made nor that there was a refusal on the part of the defendants. It is also contended on behalf of the defendant-respondents that from the fact that the defendants, are in possession for a considerable time, and no rent has been paid, we might presume a lost grant of rent free lands. I find it difficult to accept that proposition. There is authority, and we have been referred to it in support of the proposition, but I can only go so far as to say that in favourable circumstances it might be held that there was a presumption of a lost grant of rent free lands. But if there, is one principle of law which is more clearly established than another it is this: that such a presumption cannot arise: where there is an express grant. In this case there was an express rent free grant to the defendants or their predecessor-in-title and in those circumstances they cannot rely upon a presumption of a lost-grant, and the only question which can arise is of the identification of the lands. It is an unfortunate case from the point of view of the defendants, but on the case before us they have failed to show that the lands of which they are in possession are the lands which are described in their documents of title. In these circumstances the appeal succeeds and the case must be remanded to the learned Subordinate Judge for assessment of fair and equitable rent. The appeal is allowed with costs throughout.

Agarwala, J.

I agree