(Raja Sri Sri) Jyoti Prasad Singh Deo Bahadur vs Rajendra Narayan Singh Deo and Others

Rowland, J.—The plaintiff-appellant is a proprietor under whom the defendants are patnidars. The suit was brought to declare that mauza Mohanpur does not appertain to the defendants'' patni and that the defendants are bound to pay rent for it separately. The suit was decreed by the trial Court but dismissed on appeal, the District Judge holding that village Mohanpur was included in the patni grant. This finding is challenged in second appeal as being based on an erroneous reading of the defendants'' document of title the patni grant dated 1286 B.S. corresponding to 1879 A.D. The respondents contend that the question what was conveyed by the grant is a question of fact on which the finding of the lower appellate Court is final. No doubt findings of fact are final and the meaning of documents has been held in some cases to be a question of fact, but the construction of a document of title is a question of law or, at any rate, of mixed fact and law, and I think we are bound to go into the matter. The patni grant is a grant of 4 mauzas, namely, Kumardanga, Basantpur, Berali and Amadih in pargana Joytara. It does not mention Mohanpur. The defendants'' case was that mauza Mohanpur is a part and parcel of mauza Kumardanga.

The Subordinate Judge decided this question in the negative, but the District Judge has reversed this finding. To ascertain what was mauza Kumardanga the test is to see how the villages were surveyed in the revenue survey which took place in 1866, 13 years before the patni grant. Kumardanga was surveyed as a part of pargana Joytara with boundaries which were mapped. Mohanpur was surveyed as a part of pargana Khaspel having its own survey No. 2912 and thak No. 108, that is to say it was surveyed as a separate and distinct unit from mauza Kumardanga and was not treated as a part of that mauza. The District Judge is clearly in error in saying that this is not a sufficient ground for holding that Mohanpur is not included within Kumardanga as alleged by the defendants. It is clear that the property designated in the body of the grant is Kumardanga and is not Mohanpur. But the District Judge thinks that the property described by boundaries in the schedule does not agree with the designation in the body of the grant and the description by boundaries should prevail. The Subordinate Judge, after considering the report of the Commissioner, had found that the boundaries in the patta correctly described the mauza Kumardanga as surveyed and mapped by the revenue survey authorities, excluding Mohanpur. The District Judge thought otherwise, but his view rests on an error of record. He says that on the east of Mohanpur the revenue survey map shows a jore (stream), but in fact the map shows a road. In the case before us, even if there is a discrepancy between the designation of the property in the body of the grant and its description by boundaries, I am of opinion that the designation of the property must prevail. I am clearly of opinion that the grant of Kumardanga was not a grant of Mohanpur.

The District Judge has referred to the history of the property as showing that before the grant of the patni tenure Mohanpur had been in the possession of a khorposhdar whose tenure had been resumed by the proprietor and that thereafter the patnidar got possession of Mohanpur under colour of his patni tenure. In coming to this conclusion the District Judge has unfortunately fallen into another error of record. He has said: "The recital in the document shows that the entire thing that was resumed from the khorposhdar was given in patni." There is nothing in the patni grant to indicate this, and a reference to the papers of the resumption suit shows that the thing that was resumed from the khorposhdar was a tenure comprising about 50 villages. The list refers to Kumardanga both by name and by its revenue survey number indicating that in resumption proceedings at least Kumardanga meant exactly what the revenue survey had defined it to contain. The District Judge points out that the khorposhdar had given a settlement of mauza Mohanpur to some persons of the name of Choudhury whose successors are still in possession and are holding it under the present patnidar of Kumardanga. Conceding that that is the history of the mauza, it shows possession under claim of title; but it does not alter the meaning of the language used in the grant.

It is, however, contended for the respondents that in any case the patnidars have by long possession acquired the right to hold this mauza as part of their patni without paying additional rent for it. This contention involves two points. First, the right to hold and to be protected from ejectment, and secondly, the negation of the plaintiff''s right to rent. As regards the first point it is to be observed that the plaintiff has not sought ejectment or challenged the right of the defendants to hold the mauza. He seeks to establish his right to realize additional rent. Therefore such decisions as that in Mathurakkoo Thevan v. R.G. Orr (1912) 35 Mad 618 are of no assistance to the respondents. In that case the suit was for khas possession and the defence was that the plaintiff''s right was limited to claiming only rent for the excess lands. The contention of the defendant was maintained but no question arose of his right to hold the property without paying rent. The same is true of Dharani Kant Lahiri Chowdhuri v. Gabar Ali Khan (1913) 17 CriLJ 277. The respondent relies on two decisions of the Calcutta High Court in Birendra Kishore Manikya v. Laksmi 1915 Cal 386 and Kali Mohan v. Birendra Kishore 1915 Cal 527. In the former of these cases it was decided that where the defendant more than 12 years before the commencement of the suit, had asserted openly and to the knowledge of the plaintiff a title to hold the land without payment of rent the title of the plaintiff to realize rent from the defendants was barred by the statute of limitation. In the other case a rent free grant was presumed. It was also pointed out that the claim was in any case barred by limitation as the right to hold the land free of rent has been asserted to the knowledge of the plaintiff more than 12 years before the suit. In the present case there is no trace of such an assertion being made by the defendants at any time earlier than the settlement proceedings. Mere nonpayment of rent does not by itself create, adverse possession, as pointed out by the Privy Council in Jagdeo Narain Singh v. Baldeo Singh 1922 PC 272. The plaintiff''s right to recover additional rent is therefore not barred by time.

It remains to consider one further point which may be expressed thus: There is a presumption of correctness attaching to the record-of-rights. The plaintiff was bound to prove by evidence that it is incorrect. The actual entries in the record were not placed before us in argument but the record, as disclosed in the judgments of the Courts below, states correctly the facts of possession. The record correctly states that the defendants are holding Mohanpur and purporting to hold it as a part of their patni tenure and are in fact not paying any additional rent for it. Whether the defendants were liable to pay additional rent for excess area was a matter on which the settlement officer was not bound to record any opinion and, it does not appear that he did so. I am of opinion, therefore, that the record-of-rights does not stand in the way of the plaintiff obtaining a decree. The plaintiff should have been granted a declaration that the defendants are bound to pay the plaintiff a proper rent for village Mohanpur in addition to the rent which they pay for the patni tenure granted to them in 1879. I would allow the appeal and decree the suit for this declaration with costs throughout.

Mohammad Noor, J.

I entirely agree.