Rajabala Haldar vs Padmabati Dassi

Das, J.—These nineteen appeals arise out of as many suits brought by the Plaintiff-Appellant for recovery of khas possession and in the alternative for assessment of fair rent.

The disputed lands are situate in touzi No. 46 of the Burdwan Collector ate of which the proprietor is Raja Kamala Ranjan Roy of Cossimbazar. Within the zemindary one Bindu Basini Dassi held a patni called patni lot Kulti. The Plaintiff''s case is that the suit lands lie within the aforesaid patni taluk and that at a patni sale held on the 2nd Jaistha, 1343 B.S. (May 16, 1936), one Gosto Behari Ghosal purchased the entire patni free from encumbrances; that the said Gosto Behari Ghosal transferred patni lot Kulti to the Plaintiff by a registered kabala, dated the 8th Aswin, 1344 B.S. (September 24, 1937); that the suit lands lie within the regularly assessed mahal of the Plaintiff and are assessable to rent; that in the settlement record-of-rights, all the suit lands were wrongly recorded as nishkar (raiyat or tenure-holder); that the Plaintiff same to know of the wrong entries on October 6, 1943, and thereafter demanded possession from the Defendants on April 9, 1944, and on their refusal to vacate the lands, the Plaintiff brought the resent suits for possession and in the alternative for assessment of rent. The Plaintiff claimed damages for use and occupation for a period of three years prior to the suits.

The defence set up by the Defendants is that the Defendants are a possession of the suit lands in lakhiraj (revenue-free) right from the time of the Permanent Settlement of Bengal and as such they are entitled to hold the suit lands free from the obligation of paying rent at any time.

Suit No. 302 of 1944 out of which Second Appeal No. 421 of 1049 has arisen was decreed, in part by the trial Judge. On appeal by the Defendants, the decision of the trial Judge in the said suit was reversed and the Plaintiff''s suit dismissed. As regards the other suits, the trial court dismissed the same. On appeal by the Plaintiff, the judgments of the trial court have been affirmed.

The Plaintiff has, accordingly, preferred these appeals.

I may point out at the outset that in the courts below, a plea was raised that Gosto, the purchaser at the patni sale, was a benamdar for the defaulting patnidar. But the lower appellate court has found that the Defendants have failed to establish their plea of benami. The finding of the lower appellate court on this point is binding on me in Second Appeal, and it must now be taken to be concluded that the purchaser at the patni sale was not the benamdar of the defaulting patnidar.

It may also be noted that in the course of the suits, the Plaintiff abandoned the claim for khas possession and contended himself with his prayer for assessment of fair rent and a claim for damages for use and occupation for three years prior to the suits.

Three questions, therefore, have to be considered by me:(whether the lands in suit are the mal lands of the Plaintiff mahal and (2) whether the Plaintiff is entitled to have the reassessed on the same, and, if so, what is the amount of fair rer payable and (3) what is the amount the Plaintiff can get a damages, if any, for use and occupation for three years prior to the suits.

I shall take up the first question. The Plaintiff is the purchaser from a purchaser at an astam sale, viz., a sale he under Regulation VIII of 1819. By the terms of his deed purchase the Plaintiff has acquired all the rights of the purchase at an astam sale. The first question for enquiry, therefore, whether the purchaser of a patni at a sale held under Regulation VIII of 1819 is entitled to have the rent assessed in a case of the present. In order that the Plaintiff may be so entitled, by must show that the lands in suit formed part of the mal assets on the mahal. It is now well settled that the initial onus in a sub of the present description rests on the Plaintiff and it is for his to prove that the lands in suit form part of his mal assets. It is also well established that as soon as the Plaintiff discharges he primary onus, the burden shifts to the Defendants to prove that they are entitled to hold the lands free from the obligation to pay rents. The above view was taken as early as the case of Hurryhur Mookhopadhya v. Madub Chunder Baboo (1871) 14 M.I.A., 152, 172. The latest pronouncement, as far as this Court is concerned, is a Bench decision of Chakravartti, C.J., and Lahiri, J., in the case of Moslema Khatun v. Fanindra Lal Sen Letters Patent Appeals Nos. 13 to 23 of 1950, decided on August 5, 1953, unreported.

We have thus to see whether the Plaintiff has discharged the initial onus which rested on him. The lower appellate court is of the opinion that the Plaintiff has failed to discharge the said burden. Before the lower appellate court, the Plaintiff relied on the following documentary evidence: (i) the quinquennial papers, (ii) the patni patta, (iii) General Register A, (iv) Thak map and statement, absence of entry in the Register B and (vi) the cadastral survey khatian.

The learned Subordinate Judge was of the opinion that the said documentary evidence does not show that the Plaintiff has discharged the initial onus which lay on him. In this Court Mr. Ghose who has appeared on behalf of the Plaintiff-Appellant has not chosen to rely on items (i) to (v) of the said documentary evidence on which reliance was placed by his client in the lower appellate court. He has relied only on item No. (vi), i.e., the cadastral survey khatian. The precise entry in the cadastral survey record-of-rights has been stated by the learned Subordinate Judge at p. 54 of his judgment. The first and the second columns of the said khatian record the superior interest tinder which the suit lands are held being "uparistha swatya". The third column headed as "atra swater deo" relates to rent and cess. The entry is "nishkar" (either as raiyati or as tenure-holder). In the fifth column the entry under the heading "mantabya" (remarks) is "bhog dakhal sutre". For our present purpose the entry may be taken to be "raaiyati or Madhya satwadhikari bhog dakhal sutre."

The effect of an entry like the present came up for adjudication in Second Appeals Nos. 1253 to 1324 of 1932, decided on February 28, 1935, by Nasim Ali, J. (unreported). The said Second Appeals arose out of suits instituted by the purchaser at a sale for arrears of revenue for assessment of rent. The lower appellate court in those cases was of the opinion that the effect of the entry did not enable the Plaintiff to discharge the initial burden which rested on him to prove that the lands in suit formed part of the mal assets of the mahal. This view of the lower appellate court was reversed by Nasim Ali, J. The learned Judge, on a construction of the entry, came to be of the opinion that the effect of the entry was that the Plaintiff succeeded in discharging the initial burden which lay on him to prove that the suit lands formed part of the mal assets of the mahal. The cases were, however, remanded for a consideration of other points which arose for decision in those cases.

The view taken by Nasim Ali, J., was also taken by a Bench of this Court, B.K. Mukherjea and Roxburgh, JJ., in Kalidas Das v. Dharanidhar Guin Second Appeal No. 785 of 1938, decided on July 12, 1939, unreported. The Second Appeal arose out of a suit instituted by a purchaser at a sale for arrears of revenue for recovery of khas possession. The relevant entry in the cadastral survey khatian was either "raiyat" or tenure-holder "niskar bhog dakhal sutre." The entry was thus precisely of the present description. The Bench construed the entry as follow:

The lands are described in the settlement records as nishkar by long possession and enjoyment and the Defendants have been recorded either as raiyats or as tenure-holders with regard to these lands. According to the settlement records these lands are under the patni and dor-patni and the Defendants being tenants in respect of the same although they were exonerated from payment of rent, they would certainly be within the ambit of the mal of the estate. The entries, therefore, did raise a presumption that these lands were situated within the mal estate, and it was for the Defendants to rebut that presumption.

This observation applies to the facts of the present case. The learned Subordinate Judge before whom reference was made to the unreported judgment of B.K. Mukherjea and Roxburgh, JJ., was of the opinion that that judgment was inapplicable to the facts of the present case. The observations of the learned Subordinate Judge at p. 66 of his judgment are as follows:

The learned pleader for the Defendants attempted to distinguish the unreported case cited by the Plaintiff in a manner which appears to be most convincing. Facts of these cases were akin to the case reported in 4. C.L.J. 548. In that case as well as in the unreported present case, the Ex-patnidar holding lands within the ambit of the patni had set up the defence that the lands held by them are lakhiraj.

In other words, the learned Subordinate Judge was of the opinion that the entry in the settlement record-of-rights did not entitle the Plaintiff to discharge the initial burden where the Defendants are, ex-patniddrs whose lands were sold under Regulation VIII of 1819 and had been purchased by the Plaintiff. This was not the ground on which the learned Judges in the unreported judgment based their decision. In the unreported judgment, the question before the court was not whether the entry was fictitious but whether the entry enabled the Plaintiff to prove prima facie that the lands formed part of the mal assets. The learned Judges in the course of their judgment did not at all advert to the fact whether the lands then in suit and in respect of which khas possession was prayed for did in point of fact belong to the ex-patnidar and dar-patnidar. The case of Sashi Bhusan Bakshi (1906) 4 C.L.J. 548, Second Appeal No. 785 of 1938, decided on July 12, 1939, unreported. Sashi Bhusan Bakshi v. Mahomed Matain (1906) 4 C.L.J. 548 which the learned Subordinate Judge referred to did not lay down any general principle. In that case, the Plaintiff was the purchaser of the patni at an astam sale. The Defendant was an ex-patnidar. He held certain lands as tenants under the patni. He, however, claimed the lands then in suit in lakhiraj right. In those circumstances, the Bench was of the opinion that the Plaintiff had made out sufficient case so as to throw the onus on the Defendants to prove that the lands were held by the Defendants as lakhiraj. I fail to see how this decision is of any assistance in the present case. Nor do I see how the decision forms any rational basis for distinguishing the facts of the unreported case from the facts of the present case. The grounds suggested by the learned Subordinate Judge are, therefore, not cogent.

I may also add that in the case of Bibhuti Bhusan Kar v. Rai Fanindralal Sen Bahadur Second Appeals Nos. 1918 to 1930 of 1944, decided by Sen and Chunder, JJ. in May 18, 1950, a Bench of this Court had to construe a similar entry and in so doing made the following observations:

A raiyati interest is assessable to rent, the word "nishkar" does not take away from this liability. It only shows that this raiyati interest has been enjoyed by the tenants without paying rent, but it does not show that the lands are not assessable to rent.

In other words, an entry like the present shows that the lands covered by the entry formed part of the mal assets and that the lands are assessable to rent. In the case of Moslema Khatun v. Rai Bahadur Fanindra Lal Sen (1950) 55 C.W.N. 21 where the entry was "raiyati "nishkar" (bhog dakhal sutre nishkar), Roxburgh, J., observed:

I hold that it has been shown that the record-of-rights on this point is in favour of the Plaintiff and, therefore, he has discharged the onus which lies on him and has shown that the lands formed part of the mal assets of the estate.

On appeal from the judgment of Roxburgh, J., viz., the Letters Patent Appeals 23 to 30 of 1950, the Bench (Chakravartti, C.J., and Lahiri, J.) did not dissent from that view. In my opinion, the authorities referred to above clearly show that an entry like the present on a proper construction has the effect of enabling the Plaintiff, that is, the purchaser at the astam sale in the present case, to discharge the primary onus and to throw the onus on the Defendants to prove that they are entitled to hold the lands free from the liability to pay rent.

The learned Subordinate Judge was of the opinion that the present case is governed by a Bench decision of this Court in the case of Kamala Ranjan Roy Vs. Ifran Sheikh and Others, . In that case, however, the entry in the cadastral survey record-of-rights was "nishkar bhog dakhal sutre". That entry was, dissimilar from the present entry which is either ''''madhyasatwadhikdri" or "raiyati" "niskar bhog dakhal sutre". The absence of the words "madhyasatwadhihkari" or "raiyati" is a material circumstance which distinguishes the present case from the case just referred to I, therefore, hold that the finding of the learned Subordinate Judge that the disputed lands did not form part of the mal assets of the estate is erroneous and that it must be taken that the Plaintiff had succeeded in showing that the disputed lands formed part of the mal assets of the mahal and as such the onus shifted to the Defendants to prove that they hold the lands free from the obligation to pay rents.

The learned Subordinate Judge relied on several grounds in support of his view that the Plaintiff is not entitled to claim assessment of rent for the disputed lands.

In the first place, the learned Subordinate Judge held that in view of the Plaintiff''s own case, the Plaintiff is disentitled from suing for the assessment of rent. The learned Subordinate Judge opines that in order that the Plaintiff may have rent assessed, he must prove (i) that the disputed lands formed part of the mal assets and (ii) that there was a relationship of landlord and tenant between him and the Defendants. Reliance was placed 0n a decision of Biswas, J., in the case of Rathindra Narayan Das v. Rai Gunendra Krishna Roy Bahadur (1943) 48 C.W.N. 153. This position may be conceded. But even assuming that this is so, I fail to see how the Plaintiff is precluded by the allegation in the plaint from showing that there was no relationship of landlord and tenant between the parties. The learned Subordinate Judge was of the opinion that the plaint proceeded on the basis that the Defendants were trespassers. The learned Subordinate Judge however, omitted to note that according to the allegation in the plaint the trespass commenced only after the Plaintiff''s purchase and the exercise by the Plaintiff of his option to annul the Defendants'' alleged nishkar right. A careful perusal of the plain clearly indicates that what the Plaintiff was asserting is that the Defendants had no nishkar right but the fact of pre-existing tenancy was not disputed In these circumstances, the decision of Biswas, J., on which the learned Subordinate Judge placed reliance, does not disentitle the Plaintiff from claiming assessment of rent once it is proved that the Defendants are in possession of lands appertaining to the mal assets of the mahal. I may also add that the entry in the settlement khatidn that the Defendants are "nishkardar bhog dakhal sutre" does not negative the existence of a tenancy. In Moslema Khatun''s case (1950) 55 C.W.N. 21 already cited, the Bench (Chakravartti, C.J., and Lahiri, J.) observed:

...the word " nishkar" when it appears in the record-of-rights by itself does not necessarily mean rent-free, tenancy, but only means that the tenant is not in fact paying rent to anybody.

The Bench quoted with approval the observation of Sen and Chunder, JJ., in the case of Bibhuti Bhusan Kar v. Rai Fanindra Lal Sen Bahadur Second Appeals Nos. 1918 to 1930 of 1944, already quoted. There is, therefore, no substance in the view taken by the learned Subordinate Judge.

The learned Subordinate Judge was further of the opinion that the claim for assessment of rent is barred. I presume that reference to Article 142 of the Indian Limitation Act in the judgment of the learned Subordinate Judge is a mistake. The learned Subordinate Judge''s view is that as the Defendants tenancy was disputed by the Plaintiff in his pleading, the Defendants'' possession became adverse and such possession by the Defendants for more than twelve years precluded the Plaintiff from claiming assessment of rent. As I have already said, the plaint does not indicate that the pre-existing tenancy of the Defendant was disputed, but what was asserted was that the effect of the exercise of the option to annual encumbrances after the astam sale had the effect of annulling the Defendants'' interest and that thereafter the Defendants became trespassers. It was on this footing that the Plaintiff claimed khas possession. That prayer was, however, not persisted in by the Plaintiff in the course of the trial.

The learned Subordinate Judge also referred to the case of Monmotha Nath Mitter v. Anath Bandhu Pal (1919) 25 C.W.N. 106. That case, however, arose out of a suit for possession by a purchaser at a sale held in execution of a decree for arrears of rent on the footing that the Defendant was not a tenant. I do not see how that case is of any assistance to the Defendants in the present case where the pre-existing tenancy of the Defendant was not disputed by the Plaintiff. The learned Subordinate Judge also referred to a Bench decision in the case of Saroj Basini Debi v. Kumar Kamala Ranjan Roy (1940) 45 C.W.N. 126. In that case the cadastral survey entry was that the Defendant was a raiyat having rent-free brahmottar right. The question was whether the Plaintiff was entitled to have rent assessed. It was held that the proper article was Article 144 of the Indian Limitation Act. It was also held that in order that the Plaintiff might succeed, he must show that the lands were in khas possession at the date of the settlement. That case does not lay down a general principle that in cases where the entry is "nishkar bhog dakhal sutre" and the Defendant proves possession without payment of rent, the inference must be drawn that there was adverse possession on the part of the Defendant disentitling the Plaintiff from having rent assessed. In this case, there is nothing to show that any assertion of adverse right was made at any time prior to the creation of the patni. An assertion of nishkar right subsequent to the creation of the patni would entitle the persons so asserting the right to prove rent-free title, but the title so acquired by adverse dispossession would be liable to be annulled by the patni sale. The Plaintiff, the purchaser in the astam sale, can, in such a case, have rent assessed. The learned Subordinate Judge was also of the idea that the burden lay on the Plaintiff, that is, the purchaser in the astam sale, to prove the existence of the encumbrance prior to the creation of the patni. The learned Subordinate Judge referred to the decision of the Privy Council in AIR 1922 48 (Privy Council) . The decision of the Judicial Committee was reached in a case where the Plaintiff was seeking khas possession after having annulled the encumbrances by a notice u/s 167 of the Bengal Tenancy Act. The Plaintiff''s purchase in that case was in execution of a decree for rent. The Bench in Moslema Khatun''s case (1950) 55 C.W.N. 21 already cited was of the opinion that the decision in Bipradas Pal Chowdhury''s case was not of general application and turned upon the special features of that case wherein the Plaintiff had relied on Article 128 of the Indian Limitation Act. I may add that in the case of Jitendra Nath Roy v. Abdul Hakim (1930) 34 C.W.N. 1142, which was a suit by a purchaser at a patni sale for recovery of possession on annulling the Defendants'' encumbrances, a Bench of this Court was also of the opinion that the onus lay on the Plaintiff to prove that the encumbrances came into existence after the creation of the patni. A similar view was taken also in the case of Monmotha Nath Mitter v. Anath Bandhu Pal (1919) 25 C.W.N. 106 which was also case where the Plaintiff who was a purchaser of a patni in execution of a decree for rent brought a suit for khas possession after annulling the dar-patni interest. The onus was said to lie on the Plaintiff to prove that the dar-patni was created subsequent to the date of the patni. All these cases, however, deal with suits by a purchaser either at an astam sale or at a revenue sale or at a sale in execution of a decree for rent-seeking to get possession from an under-tenure-holder whose under-tenancy was said to have been annulled.

They are distinguishable from the facts of the present case. In Moslema Khatun''s case (1950) 55 C.W.N. 21, Roxburgh, J., was of the opinion that once the Plaintiff has proved that the lands formed part of the mal assets of the estate, what the Defendant must show is that they are entitled to hold possession free from liability to pay rent and that if the Defendants set up a grant, actual or presumed, the Defendants must also show that such a grant came into existence at a date prior to the creation of this patni. This view was not dissented from by the Bench who heard the appeal under Clause 15 of the Letters Patent. It must, therefore, be taken that the burden lies on the Defendants who set up a rent-free title by grant, actual or presumed, to prove that the grant came into existence prior to the creation of the patni.

This brings me to a discussion of the question whether the Defendants have succeeded in proving a rent-free grant prior to the patni. The learned Subordinate Judge after considering the evidence on record came to the finding that the Defendants and their predecessors from generation to generation have possessed! the suit lands for over 200 or 250 years, and that in each case-it may be held "that even apart from the record-of-rights the ''''Defendants in each case are entitled to presumption of lost "grant". These findings do not specifically hold when the lost, grant originated. The reference to the period, 200 or 250 years, is merely conjectural.

Mr. Chakravartti, who has appeared on behalf of the Respondents, referred me to the findings of the learned Subordinate Judge in the different cases which show that the grants came into existence long time ago and submitted that it must be presumed that the lost grants, in the present cases, must be held to be dated prior to the creation of the patni. The patni came into existence on the 3rd Falgoon, 1249 B.S. (1843). The earned Subordinate Judge referred to a series of cases bearing m this point. I may refer to the cases to which reference has been made by the learned Subordinate Judge. The first case referred to is the case of Dhunput Singh v. Russomoyee Chowdhrain (1868) 10 W.R. 461. In that case the presumption of a lakhiraj title dating before the Decennial Settlement was raised from where long and uninterrupted possession without payment of rent. In the case of Forbes v. Meer Mahomed Hossein (1873) 20 W.R. 44, a similar presumption was drawn. In the case of Nityanund Ray v. Banshi Chandra Bhuiyan (1899) 3 C.W.N. 341 on proof of possession dating from the year 1796, an inference was drawn that the Defendant''s interest was in existence before 1793. In Ananda Chandra Poddar v. Kunjo Behari Pal (1908) 8 C.L.J. 177, possession bad been traced back to the year 1824 and an inference was drawn that the Defendant''s interest was in existence before the Permanent Settlement of Bengal. In Nagendra Lal Chowdhurry v. Nazir Ali (1906) 10 C.W.N 503, possession of the Defendant was traced back to the year 1839 and an inference was drawn that the Defendant''s interest was in existence from before the Permanent Settlement. In Ananda Mohan Poddar v. Durga Charan Duttt (1942) 46 C.W.N. 668, where the question was whether the encumbrance was in existence at the date of the Permanent Settlement, on proof of its existence in 1830, Biswas, J., affirmed the view that the question depends according to the circumstances of each particular case and that the inference drawn by the lower appellate court that the Defendant''s interest must be presumed backwards to the year 1793 on proof of its existence in 1830 was properly drawn and could not be interferred with in Second Appeal. In other words, the learned Judge was of the opinion that the question whether on proof of possession for a long series of years an inference should be drawn that possession commenced from a date after the Permanent Settlement or from an anterior date is entirely a question of fact which has to be drawn by the court of facts in the facts and circumstances of the case. The inference was not an inference of law pure and simple and has to be made according; to the facts and circumstances of each particular case.

As the judgment of the learned Subordinate Judge in this case is somewhat inconclusive, it is difficult for me to decide whether the lost grant in the several cases was made prior to the 3rd Falgoon, 1249 B.S. (the date of the patni). The finding has to be reached on a consideration of the entire evidence on record. In these circumstances this matter has to be remitted to the lower appellate court for drawing the inference which, in its opinion, may be raised from the facts and circumstances of the present case. This observation applies to all the cases with the exception of Second Appeal No. 421 of 1949 which I shall deal separately.

Mr. Chakravartty also drew my attention to the case of Rai Kiran Chandra Roy Bahadur v. Srinath Chakravarti (1926) 31 C.W.N. 135, Panton and Chakravarti, JJ. That was, however, a case where the present question did not fall to be considered. It was a case where the right of a purchaser at a sale for arrears of revenue or at a sale under Regulation VIII of 1819 or at a sale under Chapter XIV of the Bengal Tenancy Act did not fall to be considered. The general observations of Chakravarti, J., have to be read in the light of the facts of that case. The observation merely points to the fact that from long possession without payment of rent or any demand of payment of rent on the part of the landlord, an inference may be drawn of rent-fee grant the existence of a document not being considered necessary. Nor can the Defendant have any assistance from the decision of this Court in the case of Bipradas Pal Chowdhury v. Monorama Debi ILR (1917) 46 Cal. 574 : 22 C.W.N. 306. In that case from long possession without payment of rent dating back to the year 1835 or so, Teunon, J., inferred the existence of a lakhiraj grant and his view was affirmed in appeal under the Letters Patent. The facts, however, were somewhat different. That was a suit u/s 106 of the Bengal Tenancy Act by the Plaintiff Monorama Debi. The relevant settlement record being "dakhalkar jamar jogya" (in possession but liable to payment of rent). The effect of this entry fell to be considered and all that the court was concerned to find was whether the fact of long possession free from payment of rent would entitle the Plaintiff to rebut the entry "liable to payment "of rent" so as to disentitle the landlord to have the rent assessed. It was not necessary for the purpose of that decision to consider whether an inference should be drawn from the fact of nonpayment of rent for a long time, that the Defendant had proved the existence of a lakhiraj right.

In view of the findings reached by me, the order that I pass in Second Appeals Nos. 422 to 439 of 1949 is that the appeals be allowed, the judgment and decree of the lower appellate court be set aside and the cases remitted to the lower appellate court for a finding only on the question whether in the facts and circumstances of the present case, the Defendants have succeeded in showing the existence of a rent-free title to the lands prior to the date of the patni i.e., prior to the 3rd Falgun, 1249 B.S. If the court of appeal is of the opinion that in the facts and circumstances of the cases an inference can be drawn that the Defendants'' possession commenced before the date of the patni, the Plaintiff''s suits would stand dismissed. If, on the other hand, the lower appellate court comes to a contrary finding, the Plaintiff''s suits will be decreed and the courts will then proceed to find the fair rent payable and to award damages for use and occupation for three years prior to the institution of the suits.

Costs of these appeals will abide the final result.

In Second Appeal No. 421 of 1949, which arose out of Title Suit No. 302 of 1944, the trial court was of the opinion that the Plaintiff was entitled to have the rent assessed. In coming to the finding the trial court was of the opinion that the Defendants have failed to prove that the rent-free right survived the astam sale. On appeal the learned Subordinate Judge has taken a different view. The learned Subordinate Judge is of the opinion that the lands in suit are covered by tdidad (Ex. D.). The taidad is dated 1209 B.S. (1802). If the taidad relates to the disputed lands, there is no question that the Defendants have succeeded in proving their possession at least from the year 1209 B.S. without payment of rent and as such the inference drawn by the learned Subordinate Judge is justified.

Mr. Ghose appearing for the Appellant contended that there is no evidence on record in support of the finding that the taidad relates to the disputed lands. The taidad relates to the lands of several mouzas one of the mouzas being Lot Kulti, that is, the lot which the Plaintiff''s predecessor purchased in the astam sale. Witness No. 1, Sudhir Chandra De, who is Defendant No. 3, asserted that the disputed lands formed part of a nishkar and in support of this claim the Defendants produced certain kabalas and the taidad. In cross-examination the witness stated:

The Defendants hold no other nishkar under Bindubashini.

Bindubashini, it may be noted, was a previous patnidar.

As the Defendants hold no other nishkar, the reasonable inference that Can be drawn is that the disputed lands in respect of which the Defendants produced the taidad are those in regard to which the Defendants claim under the taidad. There is some basis for the finding by the learned Subordinate Judge that the taidad (Ex. D) covers the disputed land. It is difficult for me to say that the finding is based on no evidence. If this finding stands, there is no escape from the conclusion that the Plaintiff is not entitled to have the rent assessed in respect of the lands covered by the taidad which, according to the finding of the learned Subordinate Judge, relates to the disputed lands.

The view taken by the learned Subordinate Judge so far as this case is concerned must be sustained and the appeal dismissed with costs.

Appeals allowed in Appeals Nos. 422 to 439 and remitted to the lower appellate court for a finding of fact.