1. This was a suit for enhancement. The plaintiff is a purchaser from Government. The Subordinate Judge has found that the plaintiff is not entitled to enhance the rent, because the land in respect of which the suit has been brought was resumed lakhiraj such as is referred to in Section 9 of Regulation XIX of 1793; in other words, that it was a resumed grant which had been made before 1790, and that, according to the last clause of the section just recited, the defendant, after resumption and settlement, was entitled to hold the land as a dependent talug subject to the payment of a revenue fixed for ever. The learned vakil for the appellant has addressed to us a long argument, in the course of which he has referred to a large number of cases bearing upon the intricate questions of lakhiraj land and resumption. There are really two points in this argument which require our consideration. The first point contended for is, that the burden of showing that the land formed a grant created before 1790 was upon the defendant; and the second point is, that the defendant has failed to discharge the burden of proof which ought to be placed upon him. As to the first point we think that the burden of proof was not upon the defendant but upon the plaintiff. The plaintiff seeks to enhance. The defendant contends that the land is not liable to enhancement because it constituted a grant created before 1790. In this state of the pleadings it is evident that, if no evidence were given on either side, the defendant must succeed. Therefore, according to the ordinary rule, the burden of proof is upon the plaintiff. But it is said, that there is a presumption that the zamindar is entitled to enhance the rents of all the lands situated within his zamindari, and that the effect of this presumption, is to cast upon the defendant the burden of showing that the land held by him is an exception to that f general rule. No doubt there is, as decided by the Privy Council, a presumption that a zamindar is entitled to enhance the rents of all lands situated within his zamindari; in other words, which would be more precise, of all lands which formed an integral portion of his zamindari at the time of the permanent settlement. But that principle can have application only, when it is admitted, or proved, that lands were included within a zamindari at the time of the permanent settlement: and it assumes this to have been admitted. In the present case the whole question is, whether the lands in dispute did form a part of the zamindari, that is, whether they were included within the zamindari at the time when the permanent settlement was made. In cases of lakhiraj grants antecedent to 1790, it is well-known law that these lands were not included within the settlement, and did not form a part of the assets upon which the calculation for the permanent settlement was made. In the case of grants made after 1790, the converse of this proposition is true. Now, there is no presumption in the case of lands which are admittedly lakhiraj one way or the other; no presumption, that is, that the grant was antecedent to 1790 or subsequent thereto. This is matter of evidence. It is clear, therefore, that the presumption as to the right to enhance cannot apply to a case of this kind. Before the presumption can apply, it must be admitted, or proved, that the lands to which it is sought to apply it, were included in the zamindari at the time of the permanent settlement. This is not admitted, it is denied in the present case. It must, therefore, be proved. The plaintiff cannot succeed unless he proves it; and the burden of proof is therefore on him. But although we are of opinion that the burden of proof was upon the plaintiff to show that these lands were lands forming a portion of a grant made subsequent to 1790, and therefore lands the rents of which he was entitled to enhance, we will assume, for the purposes of argument, that this was not so, and that it lay upon the defendant to prove that this particular grant was a grant antecedent to 1790. Even in this view of the case, we think, there is enough upon the resumption proceedings to show that the grant was antecedent to 1790. It may be observed that there is no direct evidence as to the period when the lakhiraj grant was created, and that all information in the shape of evidence is to be derived from the resumption proceedings. The Subordinate Judge says in his judgment: 'It is clear from the resumption proceedings, that Government did not consider it as an invalid grant made subsequent to 1st December 1790, nor resume it according to the provisions of Section 10 of Regulation XIX of 1793.' This is rather a negative observation, but, we think there are two facts to be discovered from the resumption proceedings, which are strong to show that the invalid grant so resumed was a grant antecedent to 1790. The first of these facts is, that a settlement was made with the ex-lakhirajdar at half rates.
2. This is in accordance with the provisions of Section 5 of Regulation XIX of 1793 and it is clear upon the regulations, that in cases of land forming part of a grant invalid by reason of having been made subsequent to 1790, the settlement must have been at full rent. The fact, therefore, that the settlement was made at half rate, is strong evidence to show that the revenue authorities dealt with the grant as one antecedent to 1790.
3. The other fact is concerned with the quantity of land. It appears, that the Deputy Collector first proposed to release the land, because, being less than ten bighas, it came within the purview of Clause 4 of Section 3 of Regulation XIX of 1793. Now, that clause is an exception to the general rule applicable to grants made after 1765 and before 1790, and the very fact that the Deputy Collector regarded this particular land as coming within the exception, assumes the application of the rule itself--a rule, which applies only in the case of grants antecedent to 1790. It is true that the authority superior to the Deputy Collector took a different view, and was of opinion that this particular land did not come within the exception, but there is nothing to show that in considering that the exception did not apply, the superior revenue authority further considered that the grant did not come within the purview of the rule applicable to grants made antecedent to 1790. We think, therefore, that even assuming that the burden of proof lay upon the defendant, there is enough in the resumption proceedings to show that this grant was an invalid grant executed antecedent to 1790, and that after resumption and settlement, it became a dependent taluq, to be held at a fixed rate of rent for ever, and therefore protected from enhancement. These appeals must therefore be dismissed with costs.