Kshitish Chandra Goswami vs Surendra Nath Mandad

Mookerjee, J.—This batch of eight appeals arise out of as many suits brought by the Plaintiffs, Appellants, for assessment of fair and equitable rent on the footing that the holdings in question are all rent-paying. The defence was that they were niskar. The trial court decreed the Plaintiffs'' suits and assessed the rent at a figure lower than actually claimed. Some.

Appeals from Appellate Decrees, Nos. 236 to 243 of 1950, against the decrees of D.N. Chakladar, Additional Subordinate Judge, First Class, Midnapore, dated Sept. 9, 1949, affirming (No. 236) and reversing (Nos. 237 to 243) the decrees of Bimal Chandra Das Gupta, Munsif, Ghatal, dated May 10, 1948. of the co-sharer landlords were originally impleaded as Defendants. They were subsequently transposed as co-Plaintiffs. As between the Plaintiffs and the co-Plaintiffs, they represented the entire sixteen annas interest as proprietors of the estate.

The Defendants tenants preferred appeals before the lower appellate court, against the decision holding the tenancies to be included within the mal assets of the estate. In some of these cases, the Plaintiffs also preferred appeals claiming a rate of rent higher than that assessed by the court. The learned Subordinate Judge set aside the judgments of the trial court and remitted cases for retrial according to law with a direction that the parties should be given opportunities to adduce further evidence, if that be found necessary. The Defendants would also be allowed to prove certain kobalas, which had not been marked as exhibits by the trial court. There was a further direction for the holding of a local investigation for relaying the lands referred to in the kobalas produced in the cases.

The Plaintiffs have appealed to this Court. The only question raised in the present appeals is whether the directions given about the admissibility of certain kobalas and the relaying of the lands mentioned therein by a local investigation were wrong in law.

To appreciate the point raised some of the relevant facts may be shortly stated. The Plaintiffs and the co-Plaintiffs claimed that all the tenancies in question were liable to be assessed at a fair and equitable rent. In the settlement khatians in respect of the disputed lands, the Defendants have been recorded as niskardars in all the suits except in respect; of suit No. 92 (giving rise to S.A. No. 239), where the lands have been recorded as liable to assessment of rent. The principal defence in all the suits was that the Defendant had niskar rights in the lands in suit; they were being held as niskar from the time of their predecessors for a very long period in such right as a niskardar without any payment or demand of any rent. The entries in the cadastral survey khatians were founded on a chhar of 1285 B.S. The courts below held that the foundation on the entry in the cadastral survey records was, therefore, of a much later date than the Permanent Settlement of 1793. The Plaintiffs were held to have discharged their initial onus, namely, that even on the cadastral khatians the suit lands were not proved to be niskar before 1285 B.S.

The Defendants have produced a number of kobalas, some of them very old, regarding the disputed lands in which niskar rights in such lands had been asserted long ago. Although it was conceded on behalf of the Defendants Appellants that they were not entitled to prove the alleged niskar right because of such assertion in those kobdlds Kanta Mohan Mallik v. Basudeb Ghora (1934) 39 C.W.ST. 311, they were relevant and are admissible for the purpose of assertion of a niskar right for a very long time, or at least as relevant evidence in support of the case that the disputed lands were being held without any payment of rent. It is contended that long possession without payment of rent would justify the inference of rent-free title. This contention was accepted, and certain kobdlds, which had not been marked as exhibits by the trial court, were held to have been wrongly rejected. The identity of the plots which were the subject-matter of these kobdlds with the lands in suit was, however, contested. For the purpose of giving an opportunity to the Defendants to identify the lands in suit with the lands covered by the kobdlds, a commissioner was directed to hold a local investigation.

The first point which requires consideration is whether proof of long possession without payment of rent may justify an inference of a rent-free title. In support of this contention reliance was placed on behalf of the Defendants on Naicab Ali v. Birendra Kisore Manikya Bahadur (1913) 22 C.L.J. 124, Kiran Chandra Roy v. Srinath Chakravarti (1926) 31 C.W.N. 135, Bipradas Pal Chowdhury v. Manorama Debi (1917) ILR 45 Cal. 574 and Kanta Mohan Mallik v. Basudeb Ghora (supra). Also Brojendra Kishore Roy Chaudhuri v. Mohim Chandra Bhattacharji (1926) 31 C.W.N. 32.

In Srinath Roy v. Dinabandhu Sen (1914) ILR 42 Cal. 489, 511: L.R. 41 IndAp 221, 227, the Judicial Committee noticed that it was only in cases of long possession under the claim of a definite right that the question of presumption of a lost grant arises. It was observed:

In practice such original grants are but rarely forthcoming now, and resort must be had to secondary evidence of them, or to the inference of legal origin to be drawn from long user.

It is well-known that the old Zamindars and Rajas of Bengal had, in times gone by, made various rent-free grants and at this distance of time most of such original grants made on country papers have been lost. Whenever the court is called upon to raise a presumption of a lost grant, the decision must depend upon the circumstances of each particular case. Care, however, should always be taken to scrutinise in every case where long possession without payment of rent is claimed, that such 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 not unlikely to have attracted the notice of the person whose rights are adversely affected by such a claim. Kobalas of ancient dates when attempted to be used cannot, therefore, be off hand rejected without a proper scrutiny, either as regards the identity of the lands in suit with the lands which are the subject-matter of such conveyances, as also to determine whether in the kobalas an assertion had been made which would in ordinary circumstances come to the notice of the party most affected,-viz., the landlords.

It has not been explained as to why the trial court had received some of the kobalas in evidence, and refused to take a number of other documents. The real point for consideration, once the kobalas are in, is whether such kobalas are in respect of the plots in question, and then for the court to decide as to the evidentiary value, if at all, in each particular case. The direction given by the lower appellate court remanding the case for retrial according to law was a proper one.

The further direction for the appointment of a commissioner for local investigation becomes necessary on the facts of the present cases. It will be for the commissioner to examine the local features and relay the boundaries in the locality so that the court may be in a position to arrive at a decision about the identity of the plots in question.

These appeals are accordingly dismissed with costs. There will be one set of hearing fee of one gold mohur for all the appeals to be divided equally.

Leave prayed for, to appeal under Clause 15 of the Letters Patent, is refused.