1. There cannot be much doubt as to the facts of this case. The difficulty lies in determining the relation between the parties and their respective rights.
2. It appears that some years before the grant of the Dewani to the East India Company i.e., 12th August 1765, Karta Narain who held certain villages under the Mahomedan Government as zemindar made a grant of the village Patesha which is the subject matter of dispute in the present case to one Dhansiram. The grant was rent-free, and Dhansiram and his heirs continued to be in possession of the village as rent-free from the time of the grant to the date of the Dewani and thereafter until the present day. The precise nature of the grant cannot be ascertained as there is an absence from the record of the grant itself. It is not, however, an Imperial grant which would be covered by Regulation XXXVII of 1793. It was a grant by a zemindar which would be covered by Regulation XIX of 1793 and, if the grantee was in possession under a rent-free title, Section 2 of Regulation XIX of 1793 would, as we shall presently show, exonerate the land from liability to pay any share of the Government revenue.
3. After the grant of the Dewani to the East India Company, attempts were made to re-assess all the lands in the Bengal Province and the assessment that we come across in the Behar Districts is an assessment made under Nawab Harier Jung. The Kanongoes register of 1773 which was prepared under the superintendence of Nawab Harier Jung shows that a Settlement was made for 30 years of the villages held at one time by Karta Narain and which included the village Patesha. This village along with another village Khaja Serai was assessed at sicca Rs 160, i.e., Rs. 80 sicca for each of the villages.' The assessment was accepted by the zemindar who was recognized as being in possession of these villages by the Collector, but as a matter of fact, possession of Patesha was with the heirs of Dhansiram. The grantee from Karta Narain or his legal representatives might have asked the revenue authorities to either exonerate Patesha from liability to assessment or to assess it separately. But they were satisfied with holding the village rent-free under the zemindar the entire assessed amount of these villages falling on the zemindari. For reasons -which it is not quite plain on the record, the zemindar of Khaja Serai took upon himself the liability to pay the revenue assessed on Patesha.
4. This state of things continued until the Decennial Settlement of 1790. According to the Settlement register of that year, the amounts assessed on the two villages were not varied. The revenue authorities accepted Rs. 80 sicca as the revenue payable in respect of each of these 2 villages. Even then it was not given out that Patesha was a village held by the predecessor of the present defendants as revenue-free or rent-free. Shortly after the Permanent Settlement and the Permanent Settlement was made with the zemindar who succeeded Karta Narain, the zemindar instituted a suit against Permeswar Singh who was then in possession of Patesha. The record of that suit is not before us and we are informed that, though an attempt was made to obtain copies of the record, they could not be had. All that we know is that a suit for possession was instituted by the proprietor of the estate against the holder of Patesha. That suit was dismissed by the first Court on the 26th May 1796 and the decree was ultimately affirmed on appeal on the 9th July 1798. Since then and for some years, Patesha was dealt with as a lakheraj village and the register of 1202 F.S. describes the village as lakheraj; copies of other papers have been produced from the collectorate showing the same thing, namely, that Patesha was lakheraj. After Regulation II of 1819 came into force, an attempt was made to resume Patesha as if it was held under a lakheraj grant. The revenue officers were evidently mistaken in trying to resume Patesha, because there could be no resumption of land which had already been assessed with Government revenue and settled with a proprietor under Permanent Settlement. That was the case with Patesha. Whatever the relation between the proprietor of the estate and the holder of Patesha might be, the Government having assessed Patesha with revenue of sicca Rs. 80 could not call it either towfir or excess land or revenue-free land as contemplated by Section 36 of Regulation VIII of 1793 or by Regulation II of 1819. The resumption proceedings failed and the revenue officers declared Patesha to be incapable of resumption on the 16th February 1838. The papers of the proceedings under Regulation II of 1819 and III of 1828 show that the then holders of Patesha claimed to have possession of this village from a period of 17 years before the grant of the Dewani and they disclosed the names of the successive holders up to the time of the commencement of the resumption proceedings.
5. It is also quite clear that the proprietor could not realize any rent from Patesha having lost the suit which was finally disposed of on the 9th July 1798. In or about the year 1843, a further attempt was made by the proprietor of the estate which now bears on the Collectorate record No. 661, to assess Patesha with rent or the proportionate amount of revenue payable jointly with respect to the two villages. Such a suit, however, was evidently not maintainable on the ground of limitation as against the holders of estate No. 661. The suit was dismissed on the 29th November 1843. Since then and for nearly 60 years the persons holding Patesha continued to be in possession without payment of any rent or revenue. They were not molested in their possession in any way.
6. The proprietors of the estate fell into arrears of the September kist of 1900. The estate was sold under Act XI of 1859 on the 7th January 1901 and the sale was confirmed on the 2nd May 1902. The purchaser who is the present plaintiff took possession in the usual way through the Collectorate but failed to obtain actual possession of Patesha. The. present suit was instituted on the 14th April 1904 either for recovery of possession or for assessment of rent of Patesha and for mesne-profits or rent for the period antecedent to the institution of the suit.
7. The claim was based on the right conferred by Section 37 of Act XI of 1859. The plaintiff contended in the lower Court and that contention has been repeated here by his learned Counsel that he is entitled to possession on the ground that the defendants were holding as encumbrancers, the encumbrance having been created subsequent to the Permanent Settlement. The defendants, on the other hand, contended that the encumbrance, if any, which was created on Patesha had been so created before the Permanent Settlement and Section 37 did not give the plaintiff a right to obtain possession. The lower Court dismissed the suit holding that Patesha had been held as rent-free from before the Permanent Settlement and it could not be resumed.
8. The present appeal before us is on behalf of the plaintiff. The question raised is one of some difficulty, the difficulty having arisen from the fact that the state of things which we find in the present case was not contemplated by the Regulation Code of 1793 or the later enactments relating to assessment of revenue free lands or resumption of rent-free tenures. That the encumbrance, if any, was created before the Permanent Settlement, is quite clear, Karta Narain granted Patesha as a rent-free village. If it was a rent-free village and was accepted as such by the Revenue authorities or was not assessed by the revenue authorities, Section 2 of Regulation XIX of 1793 would have protected it from resumption. The Government could not have resumed it under Regulation II of 1819 under the procedure laid down in Regulation III of 1828. But it was assessed. Section 2 of the Regulation of 1793 expressly provides that grants of land by zemindars or other competent authorities made before the grant of the Dewani are not resumable if the lands were held bona fide by the grantees, and no revenue was assessed on them. In this case, the revenue was assessed before the Permanent Settlement and the Government received the assessed revenue from the proprietor of estate No. 661, after the Permanent Settlement. The case set up on behalf of the defendants that they are entitled to hold the village as revenue-free or rent-free must, therefore, fail.
9. Our attention has been drawn to several cases, notably the case of Hut ryhur Mookhopadhya v. Madub Chunder Baboo 14 M.I.A. 152 : 8 B.L.R. 566 : 20 W.R. 459 as authority for the proposition that the land could not at this distance of time be resumed. But in that case the Judicial Committee laid down that the burden of proving that the land was mal, by which they meant that either no revenue had been paid at any time since the Permanent Settlement or that the land was not assessed, was on the plaintiff, the person who attempted to resume. It is quite clear in this case that, at the Decennial or the Permanent Settlement, Patesha was not considered to be a rent-free village but one which was assessed with revenue. We feel, therefore, no difficulty in coming to the conclusion that the lower Court was wrong in holding that Patesha was a rent-free village and could not be assessed.
10. What then was the relation between the parties, the proprietor of estate No. 661 and the present defendants? The plaintiff is a purchaser free of encumbrances. He cannot be affected by the laches of the defaulter or his predecessors. He is entitled to hold all the lands of the estate in the same condition as they were at the time of the Permanent Settlement. At the time of the Permanent Settlement, Patesha was assessed with a revenue of Rs. 80 which according to the value of rupee at the present day, would be Rs. 85-5-5. We see no reason why the plaintiff should not have the same position as the Government would have, if the Government had purchased this mehal at a sale for arrears of Government revenue. The Government would have been entitled to say:
This land was assessed and the assessment made was Rs. 85-5-5 and the Government is entitled to realize this sum from Patesha.' The position of the plaintiff is the same. The encumbrance which had been created by the laches of the defaulters or the actions of their predecessors was not binding on the present plaintiff. He was not bound to recognize a rent-free title but he was entitled to say ' pay me what you would have to pay at the time of the' Permanent Settlement, that is, the sum of Rs. 85-5-5.' Section 37 of Act XI of 1859 does not avoid encumbrances of every kind nor does it allow the purchaser to assess rent at a rate higher than that paid from before the Permanent Settlement, notwithstanding that no rent was levied for a long series of years.
11. It might be that Karta Narain allowed the defendants to hold the land rent-free, that is to say, did not realize any rent from Patesha. It might also be that, since 1793, the holders of the estate never realized any rent. They might be barred by the rules of limitation. The ground of estoppel might operate against them or they might not choose to realize any rent. That is no reason why the purchaser should not be allowed to realize the assessed rent.
12. We are, therefore, of opinion that the defendants in the present case are bound to pay to the plaintiff, the sum of Rs. 85-5-5 per annum with cesses as laid down in the Bengal Cess Act. If there are any other charges which are leviable with respect to such tenures, the defendants are bound to pay the same to the plaintiff. We, accordingly, modify the decree of the lower Court and declare that the plaintiff is entitled to recover from the defendants the sum of Rs. 85-5-5 per annum with cesses according to the Cess Act in four quarterly instalments and he is also entitled to recover the arrears for three years preceding the institution, of the suit and for the period during the pendency of the suit with interest at six per cent, the annual amount being assessed as above payable in quarterly instalments. We may add that this rent of Rs. 85-5-5 arrears is not enhancible according to the law now in force as the land must be considered to be comprised in a tenure existing from before the Permanent Settlement. We direct that each party do pay his own costs in both Courts.