Kesho Prasad Singh Bahadur vs Tribeni Sahay

Agarwala, J.—This appeal has arisen out of two suits, NOS. 77 and 82 of 1928, which were instituted in the Court of the Munsif of Buxar. The suits were dismissed in the first Court and two appeals were preferred which were heard together and disposed of by one judgment of the Subordinate Judge of Shahabad, who upheld the decision of the first Court. The present second appeal is against that decision. The appeal has not been pressed in so far as it relates to the points that were in dispute in suit No. 77; and, in regard to the points that were raised in suit No. 82, the only point that has been pressed by Mr. Das for the appellant is the claim for assessment to rent.

The land in dispute was entered in the record of rights as the malik''s gair mazrua land. In the Remarks-column there was a note that the trees were in possession of the tenants. The plaintiff''s case was that the land had been settled with the defendant . only for the purpose of planting trees of which he (the plaintiff) was entitled to half the fruits. He alleged that the defendant refused to make over to him his share of fruits of the trees and hence he was obliged to institute the present suit. Both the Courts below have found that the land in suit is rent-free land of the tenant who is not liable to be assessed to rent.

Mr. Das, who has appeared for the appellant, has cited three Privy Council decisions: Madhavrao Waman v. Raghunatha Venkatesh AIR 1923 PC 205, Nainapillai Marakayar v. Ramnathan Chettiar AIR 1924 PC 65 and Muhammad Mumtaz Ali Khan v. Mohan Singh AIR 1923 PC 113, and contends that by these decisions it is established that a tenant who occupies a certain status cannot by prescription acquire as against his landlord a different status. It is clear that those decisions have no application to the facts of the present case. It is not the defendant''s case that the land in suit was at one time subject to rent, but that by prescription he has acquired a right to hold it rent-free. His case is that the land has always been rent-free and that he has never been liable for rent.

To this Mr. Das replies by citing the decision in Jagdeo Narain Singh v. Baldeo Singh AIR 1922 PC 272, where it was held that when a landlord has proved that land, which is claimed to be held rent-free, is within his regularly settled mahal, it is open to those who claim to hold it rent-free to show that they have been relieved of the obligation to pay rent either by a contract or by some old grant. In the present case the Courts below have found that the land has always been held rent-free. This finding has been come to after a consideration of the evidence of the plaintiff''s witnesses who were called to prove that formerly the defendant used to make over half the fruits of the trees to the malik, and of the evidence of the defendant to the contrary.

In Jodha Sahu Vs. Tirbena Sahu and Others, it was held by this Court that, where a landlord fails to show that he has ever taken rent from the tenant, a rent-free grant may be presumed. Similarly in Birendra Kishore v. Bhoirab Chandra AIR 1915 Cal 170, in a suit for declaration of the zamindar''s right to have a fair and equitable rent assessed on the suit land, it was found that the defendants had been in possession for a number of years without payment of rent and that the plaintiff had failed to prove that rent had ever been realized in respect of the land in suit.

In these circumstances it was held that the rent-free title of the defendants could be inferred.

In Birendra Kishore v. Rosan (1912) 39 Cal 453 it was held that where, to the knowledge of the landlord, the defendant had for 12 years asserted a claim to hold his land free of rent, a suit for assessment; of rent brought more than 12 years after the claim was first made was barred. To the same effect is the decision in Birendra, Kishore v. Ram Kumar Chakravarti (1915) 32 IC 856. Mr. Das contends that the effect of the Privy Council decisions referred to above is to render all these rulings obsolete. As I have already shown, three of the decisions relied upon by Mr. Das do not apply to the facts of this case, and the decision in 2 Patna merely points out that the onus of proving that a grant is rent-free lies on the grantee.

In this case the tenant having established that for a long period of time he has held the land free and having proved to the satisfaction of the Court of facts that he had never paid rent, a presumption arises that the land is rent-free. The finding of the Courts below on this point is a finding of fact which cannot be disturbed in second appeal. It is clear that the claim is also barred by limitation, as was held in the Calcutta case already referred to. The appeal is dismissed with costs.