Mohan Lal Jha and Others vs Kameshwar Singh Bahadur of Darbhanga

Rowland, J.—The defendant-respondent is the landlord and the plaintiffs are tenants holding according to the Record of Rights 19 bighas odd in village Ramnagore. For this area they pay no rent, and the Record of Rights contains an entry in the remarks column of qabil lagan.

The plaintiffs have sued alleging that this land forms part of a rent free tenure created by the predecessor of the defendant in favour of Deo Krishna Jha, an ancestor of the plaintiffs. The first Court decreed the suit, and the Subordinate Judge on appeal has set aside that decision and dismissed the suit, finding that the documents (Exs. 1 and 2) relied on by the plaintiffs are not shown to refer to the same property; further that the plaintiffs had not proved their genealogy and that long possession over the land which the plaintiffs had proved would not establish any title to hold rent free by adverse possession.

The points taken in appeal are that from the long possession of the plaintiffs without payment of any rent the lower appellate Court should have drawn a presumption of a lost grant, or in the alternative should have held that by long possession the plaintiffs had acquired an indefeasible rent free title to the disputed lands. Of the decisions dealing with the question of presumption of a lost grant from long possession those that have been referred to are all instances in which no particulars of the grant were forthcoming at the trial. In the present case though the grant itself is not forthcoming, the plaintiffs have given particulars to indicate that it was a grant made in 1168 F.S. They have specified the name of the grantor and the grantee and have offered what may be called secondary evidence as to the grant itself.

Now when the Subordinate Judge has found, and this is a finding of fact, that the plaintiffs have failed to establish that they are holding the lands in suit under a grant falling within that description, I do not think that on the facts they can profit by the principle of presumption of a lost grant. They made a definite case as to the grant and failed to establish it.

As for the second point, mere nonpayment of rent it was conceded would not create any title to hold rent free by adverse possession. Even non-payment of rent coupled with a claim openly asserted for many years to hold rent free does not appear to be a sufficient foundation for the acquisition of such a right by adverse possession.

It is only thus that I can understand the Privy Council decision in Jagdeo Singh v. Baldeo Singh AIR 1922 PC 272 for in that case there were papers of 60 years old indicating that the tenants were setting up a title and were considered to be holding as Malikanadars even at that date. Nevertheless the Privy Council would not allow that they could acquire title as rent free tenants by adverse possession.

The result is that the appeal fails and is dismissed with costs.