Sashi Bhusan Biswas vs Bhowanipore Zemindary Co. Ltd.

Das, J.—These two appeals are at the instance of the defendant. They arise out of two suits instituted by the plaintiff-respondent The Bhowanipore Zemindary Co. Ltd. The allegations on which the plaintiffs came to Court are that the plaintiffs purchased touzi No.194 at a sale for arrears of revenue, that thereafter the plaintiff annulled the interest of the defendant which was not a protected interest and as such the plaintiff is entitled to khas possession by eviction of the defendant from the disputed lands which measure less than 50 bighas in area. There was also a claim for mesne profits.

The defence of the defendant No.1 in Suit No.288 and defendant No.4 in Suit No.289 is that the defendants are in possession of the disputed lands in nishkar Brahmottar right from time immemorial from before the Permanent Settlement of Bengal and that these lands were not included within the mal assets of touzi No.194 and as such the interest of the defendants was not annullable. The trial Court accepted the defence case and dismissed the plaintiff''s suit. On appeal by the plaintiff respondent the judgment and decree of the trial Court have been set aside and the plaintiff''s suit decreed with costs, the plaintiffs being declared to be entitled to recover khas possession. Against the judgment and decree of the lower appellate Court the contesting defendant Sashi Bhusan Biswas has preferred these appeals.

The only question which falls to be determined in these appeals is whether the interest of the defendants can be annulled by the plaintiff. This contention has been based on the ground that the disputed land is not a part of the mal assets of the touzi and that in point of fact it was held by the defendant appellant in nishkar Brahmottar right.

The learned Subordinate Judge who heard the appeal was of the opinion that the disputed land formed part of the mal assets of touzi No.194. The basis of the reasoning of the learned Judge is that the certified copies of the A and C Registers show that the entire area of the mouza in which the disputed lands are situate is assessed to revenue and as such the primary onus which lay on the plaintiff was discharged and that it was for the defendant to show that the defendants acquired a right to hold the lands as nishakar Brahmottar. The learned Judge in the appellate Court was also of the opinion that the disputed land has not been proved be nishakar Brahmottar of the defendant or his predecessor-in-interest. I have to deal with these grounds made by the learned Judge.

It is undisputed that in a case like the present the plaintiff has to discharge the primary onus which lies on him to establish that the disputed land is a part of the mal assets in order that he may succeed in getting a decree for ejectment against the defendants. That primary onus according to the learned Judge in the appellate Court has been discharged by him. The learned Judge, as I have already pointed out, is of the opinion that A and C Registers exhausted the entire lands of the village in which the disputed property is situate and as such there was no scope for the supposition that these lands are not a part of the mal assets. Reliance was placed by the learned Judge on a Bench decision of this Court in the case of Nibaran Chandra Mukherjee v. Rai Harendra Lal Roy Bahadur (36 CWN 215). In my opinion the learned Judge has misread the effect of the decision in Nibaran Chandra Mukherjee''s case. In that case the Assistant Settlement Officer was of the opinion that the lands then in question did not form part of the mal assets of the estate. On appeal the learned District Judge relying on the decision in the case of Jaydeo Narain Singh v. Baldeo Singh (LR 49 IA 399 : 27 CWN 925) came to be of the opinion that the view taken by the Assistant Settlement Officer was not correct and directed a remand. Against that, an appeal was taken to this Court. In this Court the learned Judges did not accept the argument based on Jaydeo''s case referred to above, but sustained the decision and the order of remand made by the lower appellate Court on certain additional materials which were placed before the Court, namely, the entries in A and C Registers. The learned Judges observed at page 218 that on these further materials the view taken by the Assistant Settlement Officer was correct and added that the effect of the A and C Registers as also of the entry in the settlement record-of-rights showed that the land then in question did form part of the mal assets. The effect of the entries in A and C Registers was not separately also on the entry in the settlement record-of-rights which prima facie showed that the lands then in question formed part of the mal assets. The true effect of the entries in A and C Registers so far as this point is concerned came up fro consideration in the case of Bipradas Pal Chowdhury v. Monorama Debi (22 CWN 396 : ILR 45 Cal 574). In that case which was a suit u/s 106 of the Bengal Tenancy Act, following an entry in the C.S. record-of-rights that the lands to assessment of rent, the plaintiff alleged that they were not so liable to be assessed, as the lands were held by them in lakheraj right. The lands in that suit measured less than 50 bighas. The plaintiffs relied also on certain entries in the Taidad Register and stated that they were in long possession without payment of rent, their possession being dated before the Permanent Settlement of Bengal. The learned District Judge on appeal came to a finding of fact that the identity of the Taidad with the lands then in suit ha not been established. The plaintiffs had, therefore, to fall back on the fact that the lands were in their possession for a long time without payment of rent. The defendants in that case relied upon the absence of entries in Pargana Register, Kanungo Register, Mouzawar Register and the General Register kept under the Land Registration Act (Act VII of 1876) and the Thak map and Thak statement. It was the defendants'' contention that the absence of an entry of the disputed land as lakheraj in the aforesaid registers clearly showed that the lands formed part of the mal assets of the zemindar. The learned District Judge in the lower appellate Court acceded to that contention.

Against the decision of the learned District Judge an appeal was taken to this Court. The appeal was heard in the first instance by Mr. Justice Teunon. In an elaborate judgment the learned Judge made the following observations that the Pargana and the Kanungo Registers were not punctiliously kept and that the absence of entries in these Registers was not material to show that the lands formed part of the mal assets. Referring to the Thak map and Thak Statement the learned Judge observed that the Thak authorities had no authority to record lakheraj land less than 100 bighas in area and as such the absence of an entry in the Thak map and Thak statement was also not material. Referring to the entries in the General and Mauzawar Registers the learned Judge was of the opinion that Sections 10, 33 and 89 of the Land Registration Act clearly showed that if a grant was not the subject of a judicial proceeding or a report to the Board of Revenue or was declared valid by a competent authority and if the area thereof was less than 50 bighas, according to the rules issued by the Revenue Department for the purposes of the Land Registration Act, the lands will be recorded in A and C Registers and not in B Register. Reference was made to James Henry Young''s Revenue Handbook in the above connection. The conclusion to which the learned Judge came was that in that case as the grant was in respect of land less than 50 bighas in area and as the grant was not the subject matter of judicial proceedings or a report to the Board of Revenue or was not declared valid by competent authority, no inference can be drawn from fact that the lands did not find a place in B Register but had been included in A and C Registers. The decision of Teunon, J., was affirmed on appeal under clause 15 of the Letters Patent. The position, therefore, is that the mere fact that the A and C Registers include the disputed land within those Registers does not necessarily show that these land formed part of the mal assets of the estate within which they are geographically situate.

In this case the lower appellate Court has observed that the A and C Registers show that the revenue-paying lands in the relevant village measured 39 acres 1 rod and 12 poles and that this area was less than the area of the village in the C.S. record-of-rights which was 30 acres and as such there were no revenue-free lands in the village in question. This argument quite apart from the infirmity which attaches to it in view of the decision in the case of Bipradas Pal Chaudhury referred to above, is opposed to certain other papers on record. Mouzawar register of 1190 B.S. clearly shows the existence of revenue-free lands in the village. The inspection slips which are on record also show that no land in the relevant village was the subject to any judicial proceeding or a report to the Board of Revenue or had been declared valid by competent authority. As such the basis on which the learned Judge came to be of the opinion that the disputed lands formed part of the mal assets is entirely wrong. Mr. Ganguli, who has appeared on behalf of the plaintiffs respondents, does not seriously dispute this position but he has contended that the entry in the C.S. record-of-rights which records the disputed lands as held in tenure right and as nishakar, on a true interpretation, involves the view that the disputed lands form part of the mal assets of the estate though they are held in rent-free right. In this submission a true interpretation of the settlement record shows that the disputed lands are held as tenure and so they appertain to the revenue-paying lands of he touzi, though the defendants are in possession without payment of rent as nishkardar. In my opinion the C.S. entry is at best ambiguous. In the case of Kamala Ranjan Roy Vs. Ifran Sheikh and Others, Mr. Justice Mitter after referring to Rule 37 of the Technical Rules of the Settlement Department came to be of the opinion that the word "nishakar" in a settlement entry may lead to an inference either of a nishakar or right of a lakheraj right. In that case the entry was * * * simpliciter. It was not further stated that the defendant was a tenure-holder. The basis of the entry in this case, viz., that the defendants are tenure-holders is shaken by the fact that there has been no proof of payment of rent at any time. No papers or the landlords'' books been filed to show that the defendants or their predecessors ever held the land as tenants under the plaintiff or its predecessors. As was pointed out by Mr. Justice Mitter the Settlement Authorities are prone to record lands held without payment of rent as nishakar unless a grant of lakheraj right was produced before them. Again, in this case there is evidence to which I shall refer presently, which shows that in the year 1847 as Brahmottar in certain survey proceedings. I am referring to the entries in certain survey papers of the year 1847. Exts. A to A 11. In the lower appellate Court there was no dispute that the entry as against C.S. Plot 352 is that the lands covered by that entry are Brahmottar. The same position was taken also in the trial Court. In this Court Mr. Ganguli suggested for the first time in this case that dg No.352 of the Chitta was not entered in the Chitta held in Brahmottar right.

As this point was not in dispute in the Courts below, I cannot allow the plaintiff-respondent to urge this point in a Court of second appeal. We must, therefore, proceed on the assumption that dag No.352 of the Chitta of 1847 shows that the lands as held in Brahmottar right.

The lower appellate Court was of the opinion that the Chittas Exts. A to A11 were batwara Chittas and as the entry was not an entry made in art official book or register or record, these statements have no value. The basis of this view is that the Chitta opens with a statement -

* * * * * * From this the learned Judge says that these are batwara papers. Of course there is no evidence to show that they are batwara papers apart from the statement to which I have just referred. It appears, however, from the evidence on record and the inspection slips Exts. B series that there were only two surveys made by the Revenue Department before the C.S. operations, these surveys being dated 1190 B.S. (1793) and 1847 Ext. B 10 shows that the Thak was prepared in the village in 1847. It would appear from James Henry Young''s hand-book that the Thak authorities were directed not merely to demarcate he village boundaries but also to demarcate boundaries of each independent mahal in the village. This explains the opening entries in the Chittas of 1847 as also the records of the different plots lying within the different mahals then measured by the Revenue Department. The Chittas show that the measurements were made by the Revenue Department. There is no suggestion anywhere in the evidence that in point of fact there was an estate partition of the different mahals mentioned in the Chittas. The word * * - does not necessarily indicate that there was a partition of the different estates mentioned in the Chittas. In my opinion the acts, as they are on record, show that the Chittas of 1847 were not khasra batawara papers but were papers of a survey undertaken by the Government for revenue purposes in 1847. We must, therefore, proceed on the footing that the Chittas of 1847 were properly brought on the record and that the survey papers were prepared by the Revenue Department for revenue purposes and that they are legally admissible in evidence. The entry as against plot No.352 of the Chittas that the lands covered by the entry were held in Brahmottar right must be taken to be admissible in evidence and as an assertion made then by the persons recorded against that entry who are admittedly the defendant''s predecessors-in-interest. This, however, does not dispose of the case.

The next point which was taken before me was that the Commissioner''s report which held that entry No.352 related to the disputed lands now in suit should not be accepted. The learned Judge in the lower appellate Court disagreeing with the trial Court save certain reasons for discarding the Commissioner''s report. He observed that the chitta of 1847 was not drawn to scale and that the standard of measurement, if any, was wanting and that "the report is more or less a speculatory one". I have carefully gone through the Commissioner''s report. Before the Commissioner the defendants took no part. The Commissioner recorded evidence, both oral and documentary, and came to be of the opinion that the different dags of the chitta show accurate measurement and that though the chittas on their face do not mention the standard of measurement, it must be taken that the chittas which were prepared by the Revenue Department adopted the standard then in vogue in the Revenue Department. It appears also from Ext. O that the measurement of the touzis including touzi No. 194 was made with a rashi of 85 cubits, each cubit being 18 inches. Ext. O, is dated 1847. It would also appear from Thullier''s Manual of Surveying for India, 1875, that the standard measurement was not in vogue before 1849. In these circumstances I do not see much force in the comment made by the learned Judge in appeal that the Commissioner acted on mere surmise. He had before him relevant materials to show that the chitta plots were based on measurement and that the standard of measurement was that mentioned in Ext. Order I entirely agree with the view taken by the Commissioner. I am clearly of opinion that the relay made by the Commissioner is correct and that the relay shows that dag No.352 of the chitta covers the disputed plots. The position, therefore, follows that in 1847 the defendants predecessors asserted their Brahmottar right to these lands. This is the evidence on which it is legitimate to conclude that the disputed lands do not form part of the mal assets of the estate. But apart from this there is the outstanding fact that the disputed lands have been admittedly held by the defendants or their predecessors for a very long time without payment of rent. In the case of Bipradas Pal Chaudhury (supra), to which I have already recorded the plaintiff as * * The presumption raised by the settlement record was rebutted by the sole fact that the plaintiff was in long possession without payment of rent. From that fact an inference was drawn that the lands were held in lakheraj right. It must be remembered that the finding of fact by the lower appellate Court in that case was that the taidad was not proved to cover the lands in suit. In my opinion the evidence adduced on behalf of the defendants is sufficient to rebut the presumption, if any, that the lands formed part of the mal assets. The defendants must, therefore, be deemed to hold the disputed land in lakheraj right and as such the interest of the defendants is not annullable by the purchaser at revenue sale.

The result is that the view taken by the lower appellate Court cannot be sustained. The appeals are allowed. The judgment and decrees of the lower appellate Court are set aside and those of the trial Court restored with costs in this Court and in the lower appellate Court.