1. The question that arises in this Second Appeal is whether the respondent is entitled to enjoy land free of rent that was the subject of a pre-settlement grant. A few documents were filed in the case; and on this evidence the Subordinate Judge held that the respondent had not proved his claim. The suit, which ' was one for a declaration that the plaintiff was entitled to enjoy the land free of rent and for a refund of rent already paid, was dismissed in toto. In appeal, the District Judge held that the documents proved that the plaintiff (respondent) possessed the rights which he claimed. He held that a declaration should be given, as there had been a continuing wrong in collecting the rent from the plaintiff but that he could obtain a refund of rent wrongly paid only for a period of six years prior to suit.
2. We know that from 1895 the land was described as Asalminaha Inam. Macleane defines this tenure thus:
The term is therefore applied to rent free and other favourably assigned lands. Commonly used for unoccupied and unassessed land.
The words used show that the land was excluded from the account of the total revenue. It is not denied that the use of this word is not altogether conclusive of the nature of the grant and would not exclude the possibility that the Zamindar had a right to impose rent later. The fact that the land was at one time described as a tope has led to the suggestion by the Zamindar's learned advocate that the land may have been granted originally to an ancestor or predecessor-in-title of the plaintiff, to encourage him to cultivate the tope If that is so, it is rather difficult to attach any importance to the subsequent description of that land as Darbar inam. This has given rise to another suggestion on behalf of the Zamindar that when the predecessor-in-title of the plaintiff ceased to comply with the terms of the original grant, he was allowed to continue in enjoyment of the land free of rent on condition that he rendered service at darbars. There is no material on which a Court could uphold such a contention; and the learned District Judge before whom such argument was not put forward was certainly entitled to conclude that, whatever the rights of the plaintiff's predecessor might have been when the grant was made, those rights continued, unless the Zamindar was able to show that by some change in circumstances or on account of some infringement of the terms of the original grant, he became entitled to levy rent. Even as late as 1916, in Ex. P-5, an extract from the Record of Rights Register maintained by the Registrar dated 11th May, 1913, the land was described as asalminaha inam.
3. The learned District Judge very rightly placed a great deal of reliance on Ex. P-4, the inam register prepared in 1916. The Inam Deputy Collector made his recommendation on 29th November, 1915; and during the course of his enquiries into the nature of the inam he stated in column 6 of the form:
This is a personal inam held with grant. Gift deed is produced for inspection by the claimant of case No. 4. The garden finds mention in the bhuband of fasli 1207 (1797) as a deduction from the village gudicut as Ravu Venkayya Cocoanut garden 4 visams.
This entry negatives the suggestion that this was a Darbar service inam. Unfortunately, that grant has not been produced, although a copy of it was tendered in the trial Court and rejected; but this entry proves that the title of the plaintiff lay in a personal grant. We must presume, since we know that no rent was paid from the time of the grant until recent years and there being no evidence to the contrary, that the plaintiff was entitled to continue to enjoy the land free of rent. It is no doubt true that column 22 of Ex. P-4 shows that rent in 1915 was being paid by the plaintiff or his predecessor-in-title to the Zamindar; but from when payment of rent was made, we do not know. Were it not for this entry,
May be resumed and fully assessed as it is held subject to payment of rent to the zamindar.
there would be every reason to believe that no rent was paid until 1915, when on the representations of the Zamindar that this was a service inam which he intended to resume, a full assessment was paid. It is unnecessary to discuss in detail the various documents referred to in the judgment of the learned Subordinate Judge and dealt with rather sketchily by the learned District Judge in appeal; because those documents only show that the land was described as asalminaha from time to time, and that from 1905 onwards the inam was described as Darbar service inam. The conclusion arrived at by the learned District Judge that the inam was a presettlement inam on which no rent was payable by the plaintiff was certainly one possible on the facts, and since this is a second appeal, that finding has to be accepted.
4. On the question of limitation it is argued that when the Zamindar resumed this land in 1925 he did an act which negatived finally the plaintiff's title, and that since the plaintiff did not file a suit within six years of that act of 1925, the suit is barred by limitation. It is undoubtedly true that if a trespass or a similar negation of a person's rights took place at a particular date and that trespass or denial of rights continued from that date, the date from which limitation runs is the date when that right was first denied or the trespass took place; but if the act of trespass or denial is a discontinuous one, then every fresh denial affords a fresh cause of action. The argument of the learned advocate for the appellant is on the basis that the act of resumption was a definite act which amounted to something akin to taking possession of the land from the plaintiff, and that from that date therefore time began to run. If however he had no right to resume the land, as has already been held, his sending the plaintiff an order of resumption would have no legal effect whatsoever, nor would it have any practical consequence for the plaintiff, since his possession was undisturbed. It is true that when the Zamindar represented, either honestly or by mistake, that the plaintiff held this land on service tenure, the plaintiff accepted the statement of the Zamindar and paid the rent demanded by him; but it seems to me that the collection of such rent, however long continued, was wrongful, and that every time the Zamindar demanded rent which was not legally payable by the plaintiff, the demand gave rise to a fresh cause of action; because the plaintiff knew that if he did not pay the rent, the landlord would take coercive steps to enforce his supposed right.
5. The facts in this case seem very close to those in Sriman Madhabushi Achamma v. Gopisetti Narayanaswamy Naidu (1909) 19 M.L.J. 734 : I.L.R. 33 Mad. 171 where a Zamindar demanded a higher annual payment from certain Agraharamdars than that to which he was legally entitled. He even succeeded in one year in obtaining a decree for the higher amount; and it was argued in that case that at any rate from that year in which he had successfully maintained the suit against the Agraharamdars, time ran against the Agraharamdars and that a suit not filed within three or six years from that date was barred by limitation. The learned Judges however held that that was not so, and that if the Agraharamdars were not bound to pay the higher rent, every time that the higher amount was demanded, a fresh cause of action arose. The learned advocate for the defendant has referred to the decision of the Privy Council in Kodoth Ambu Nayar v. Secretary of State for India (1984) 47 M.L.J. 35 : L.R. 51 IndAp 25 : I.L.R. 47 Mad. 572 (P.C). in which a person who had been cultivating some Government forest land brought a suit to establish his rights. It was found that he had failed either to establish his title or to prove that he was entitled to the land on account of long possession. Their Lordships went on to consider the question of limitation, although it was not really necessary to do so. In a very brief paragraph, they remarked that since Article 120 applied and since the suit was not brought within six years of the date when the Government negatived the plaintiff's rights, the suit was barred by limitation. On what facts their Lordships relied on as basis for their dictum we do not know. There is no reason to think that by implication Sritnan Madhabushi Achamma v. Gopisetti Narayanaswamy Naidu (1909) 19 M.L.J. 734 : I.L.R. 33 Mad. 171 is no longer good law.
6. The learned District Judge seems to be of opinion that the plaintiff was entitled to recover six years' rent under Article 120 of the Limitation Act; but it is conceded here that although Article 120 will have application as far as the relief for a declaration is concerned, it will not apply to the prayer for refund of the rent; and that the plaintiff would be entitled to recover only three years' arrears of rent.
7. Except for this modification the appeal is dismissed. Since the appellant has partially succeeded, he will pay only half the costs of the respondent in this Court.