R.C. Mitter Ag. C.J.
1. Raja Kamala Ranjan Boy, the plaintiff in these suits, purchased Touzi No. 7 of the Murshidabad Collectorate at a revenue sale on 29-3-1930. He instituted these suits in the year 1939. The suits were for assessment of rent in respect of lands which had been recorded in the Record of Hights, finally published under chapter x of the Bengal Tenancy Act as niskar bhogdakhalsutre. The word 'niskar' appears in column No. 3 under the heading 'Khajana', and 'Bhogakhalsutre' appears in column No. 5 of the Khatian, that is to say, in the remarks column, In the plaint he recited his purchase at the revenue sale. In paragraph 2 of the plaint he stated that the entry in the Record of Rights was wrong, that is to say, the lands were not in fact niskar lands and so he was entitled to assess rent. In paragraph 3 of the plaint he stated that even if the lands were niskar, he being the purchaser of an entire estate at a revenue sale is not bound to recognise the niskar rights of the defendants, his prayers were for assessment of rent, for resumption of the lands and settlement of fair and equitable rent and for damages for use and occupation for the three years preceding his suits. Amongst the pleas taken by the defendants there was a plea that those lands of theirs were lakheraj lands and they had lakheraj title from before the Permanent Settlement of Bengal. The Court of first instance dismissed the suits. The lower appellate Court decreed the suits. On further appeal our learned brother Mr. Justice Henderson reversed the judgments of the lower appellate Court-and restored the judgments and decrees of the learned Munsifs. He however gave leave to the plaintiff to prefer appeals under Clause 15 of the Letters Patent. The plaintiff Baja Kamala Ranjan Boy has accordingly preferred these appeals.
2. If he had not claimed the rights of a purchaser of an entire estate at a revenue sale the position would have been simpler. The Record of Bights having recorded those lands to be niskar before he could claim assessment of tent, the burden of proof would have been on aim to show that the entry of niskar in the Record of Eights was a wrong entry. No evidence was adduced by him to show that those entries made in the Record of Eights were, wrong. On the other hand, the defendants led evidence hat they and their predecessor had been holding hose lands for a long time without making any payment to the zamindar.
3. His further case which is made in paragraph 3 of the plaint, however, requires consideration. We have already stated that in his plaint he claimed the rights of the purchaser of an entire estate at a revenue sale. In Hurryhur Mookhopadhya v. Madhab Chunder ('70-72) 14 M.I.A. 152 which was a case of resumption by the Zemindar, it was laid down that before a zemindar could impose rent on land in respect of which no payments had hitherto been made, the onus is on him in the first instance to prove that the land was his mal land, that is to say, was assessed to revenue at the time when the Permanent Settlement was concluded. A long line of cases followed that decision. In Jugdeo Narain Singh v. Baldeo Singh 9 A.I.R. 1922 P.C. 272 the matter was considered again by the Judicial Committee of the Privy Council. The Judicial Committee of the Privy Council after reviewing the evidence in great detail came to the conclusion from that evidence that the Zemindar had proved that the property in question in respect of which ha wanted to assess rent was his mal land. They further laid down that in order to succeed the zamindar had to prove that the land in suit was within his regularly assessed area. They went further to make an observation which apart from the context would have implied that the zamindar could discharge his onus in that respect, if he had simply proved that the land in suit was within the ambit, that is to say, the geographical limits, of his estate. Within a year of the decision of Jagdeo Narain Singh's case the matter was considered by this Court in Sashi Bhusan Hazra v. Kazi Abulla : AIR1924Cal328 . Walmsley and Suhrawardy JJ. pointed out in that case that there was nothing in Jugdeo Narain Singh's case which went against the principle that bad been laid down in Hurryhur Mookhopadhya's case and the view which Walmsley and Mr. Suhrawardy JJ. took' in that case has since been followed in many decisions of this Court, some of which, are reported. (See for instance, Makhan Lal v. Rup Chand 0049/1929 : AIR1930Cal164 ; and Kanti Mohan v. Makhan Santra (35) 89 C.W.N. 277. The question had to be considered by a Division Bench of this Court in a land acquisition proceeding where the person who had purchased the entire estate at a revenue sale claimed the whole of the compensation money awarded. The case is Krishna Kalyani Dasi v. Rule Braunfield 3 A.I.R. 1916 Cal. 85. Mr. Braunfield and others, namely, Prince Kamar Kader and the Banerjees were in possession of certain plots of land within the ambit, that is to say, within the geographical limits of the estate which has been purchased at the revenue sale. Krishna Kalyani Dasi, the appellant to this Court, was a purchaser from the persons who had purchased the estate at the revenue sale. Mr. Braunfield and Prince Kamar Kader claimed a portion of the compensation money on the ground that they had never paid rent to the proprietor of the revenue paying estates and that the properties in their possession were lakheraj. Chatterjea J. reviewed the cases including Hurryhur Mookhopadhya v. Madhab Chunder ('70-72) 14 M.I.A. 152. and came to the conclusion that as the purchaser of an entire revenue paying estate acquires the estate as it was at the time of the Permanent Settlement and free from all encumbrances imposed thereafter, and the initial onus would be on the purchaser at the revenue sale to prove that the lands were mal lands of the estate, that is to say, were lands which had been assessed to revenue when the Permanent Settlement was concluded. The two Courts below as also our learned brother Henderson J. have held that the initial onus is on Raja Kamala Ranjan Roy to prove that the lands in suit wore the matlands of his estate, that is to say, the lands which had been assessed to revenue at the time of the Permanent Settlement, which means at the time of Decennial Settlement of 1789, because that settlement was made permanent in 1793. We think that the statement of law thus laid down is correct. In fact Mr. Bose who has appeared before us on behalf of the appellant does not seriously challenge the correctness of the view indicated above.
4. The point of controversy centres upon the question as to whether the plaintiff has discharged that initial onus. Before we come to that question, we think, it is necessary to put the position clearly; for it appears that there was some amount of confusion in the lower appellate Court. On the case made in para. 3 of the plaint the position would be this: that onus would be on the plaintiff to show that the lands were the mal lands of estate No. 7, that is to say, were assessed to revenue at the time when that estate was created and permanently settled, that is to say, in 1793; for it is the common case that estate No. 7 was created and premanently settled in the year 1793. If that onus is discharged it would be for the defendants to show that they are protected by reason of the provisions of Section 37, Land Revenue Sales Act, 1859, that is to say, it would be for them to show that the Interest which they had, namely, niskar interest, 'had' Sated back from before the time of the permanent settlement. On the view that we are taking it is not necessary for us to consider whether there is evidence on the record which would take Kick the interest claimed by the defendants to a date anterior to the permanent settlement of 1793, for we are of opinion that the initial onus, which is on the plaintiff, has not been discharged.
5. The only reliable evidence on which the plaintiff relies for discharging the burden of proving that the lands in suit are the final lands of his estate are the entries in the Record of Rights. The entries are of this type. In the khatian of the estate, namely Touzi No. 7, the names of the defaulting proprietors appear as the proprietors, because the khatians, Records of Rights, were prepared before the revenue sale at which the plaintiff had purchased. In that estate there was a patni and the names of the patnidars are entered as the immediate subordinate tenure-holders under the proprietor of Touzi No. 7. In the tenants' khatian the lands are recorded in the manner we have indicated above, that is to say in the 3rd column under the heading which relates to rent and case, there is the entry of niskar; and in the 5th column under the heading (remarks) there are the entries. The first two columns deal with that is to say, the immediately superior interest and there the Marries and shares of the patnidars are entered. The heading of the khatian, the name of the district, mouja, thana, pargana, etc., are entered, as also Touzi No. 7 is mentioned. The contention of the plaintiff is that this khatian means that the land in suit is a part of Touzi No. 7 held mediately under the proprietors and held immediately under the patnidars, that is to say, that the land in suit is not only within the geographical limits of Touzi No. 7, but is within that estate and part and parcel of that estate, that is to say, a plot of land in respect of which revenue must be taken to have been assessed at the time of the permanent settlement. On the other hand the contention of the defendants is that the entries in the khatian most be taken along with the practice followed in recording niskar, and according to that practice followed, the meaning of the khatian would amount to this only: that the plot of land is within the geographical limits of estate No. 7 and nothing more. Both sides have relied upon Rule No. 37 of the Technical sales by which the settlement authorities are to be guided. I appears to us quite clear that in the case of small plots of land the word 'niskar' is employed by the Settlement authorities not in its technical sense of rent free land but also in the larger sense of lakheraj or revenue free lands. There is clear indication of this fact in Rule No. 37 of the Technical Rules. The instructions which the Settlement authorities are to follow and which they in fact follow are these: that if a property is found to be in possession of a man who is not actually paying rent to anybody the property is to be described as niskar in the column in which rent is to be mentioned. If any document, sanad, chhar etc., be produced the particulars of the document are to be stated there. But if no sanad, chhar or other documents of that nature be produced the remark is to be made that it is. It comes to this that if a sanad conferring a grant without any payment be produced of a date anterior to the Decennial Settlement, the entries, are to be made in the khatian in the fashion that we have indicated above, describing the land as niskar. A property held without any payment on the basis of a valid or invalid grant, that is to say, whether it is a valid or invalid lakheraj, could not be a property which had been taken into consideration in assessing revenue at the time of the permanent settlement because of the express provision contained in the Permanent Settlement Regulation whereby valid or invalid lakherajes were excluded from estates. Simply because the land is included in a khatian which shows the superior interest to be the patnidars of the touzi, we cannot come to the conclusion that the meaning of the khatian would necessarily be that it was a part of the regularly assessed area of that touzi. In fact the learned Munsif has pointed out that there are certain khatians of the same nature which had been produced before him where against the word 'niskar' taidads were noted. Those taidads were in respect of lakherajes. They could not be under the Regulation claims to simple rent free tenures. We accordingly hold that the settlement khatians which are the only evidence on which the plaintiff relied to discharge his initial onus are not sufficient for the purposes of proving that the plots were the regularly assessed areas of the estate as created by the permanent settlement. In this view of the matter we dismiss the appeals with costs.
6. I agree.