M.C. Ghose, J.
1. This appeal arose out of a suit for assessment of fair rent in respect of a tenure of 195 acres held by the defendant within the putni tenure of the plaintiff. The Record of Right which was finally published in 1927 recorded the lands in suit as in the possession of the defendants within the revenue paying putni tenure of the plaintiff, and though not paying any rent the defendant was recorded as liable to pay rent. Thereafter the plaintiff instituted the suit for assessment of fair rent. The defence was that it was a rent free holding of the defendants. The trial Court repelled the defence contention and assessed fair rent at Rs. 9 per annum. The defendants appealed and the learned Subordinate Judge has held that the defendants established that their holding was a rent-free holding and dismissed the plaintiff's suit. Against that decree, the plaintiff appeals to this Court.
2. On the side of the plaintiff there is only the settlement record which shows that the land is situated within the plaintiff's putni tenure for which the plaintiff has to pay rent to his superior landlord. As the land is within the revenue paying estate of the plaintiff, the onus is on the side of the defendant to show that this land is held rent-free. In support of the defence, the defendant produced two documents, one a mortgage bond dated 4th Pous 1231 B.S., executed by Ganganarain Chakravarti and Ramdhon Chakravarti in favour of Sk. Gayedi. They mortgaged the lands to Sk. Gayedi for a certain sum. There is no mention in the document that the lands were held on a rent-free tenure. The next document is that of a sale dated 6th Bhadra 1266 B. 8. executed by Danki Bibi, widow of Sk. Gayedi, in favour of the predecessor of the defendants. It was stated in that document that the lands were niskar brahmottar, but nothing was stated as to who was the original holder of the rent-free tenure or how it became a rent-free tenure. There was a mere bald statement that it was a niskar brahmottar.
3. Further, the defendants stated that they never paid rent for this land. The plaintiff purchased the superior putni in 1917. He instituted a rent suit against the defendant in 1925 but was not successful. The question is whether upon these facts the defendants are entitled to claim that the lands in suit are a rent-free tenure. Numerous cases were cited at the Bar, namely Jafar Ahmed v. Birendra Kishore (1913) 22 O L J 126, Bipradas Pal v. Monorama Devi AIR 1919 Cal 922, Jagdeo Narain Singh v. Baldeo Singh AIR 1922 P C 272, Chattra Nath v. Babar Ali : AIR1925Cal635 and Brojendra Kiahore Roy v. Mohim Chandra : AIR1927Cal1 . Upon perusal of the reported cases it appears that long possession without payment of rent may justify in particular circumstances an inference of a rent-free tenure. The onus is always on the side of the defendant to establish by satisfactory evidence that the tenure he holds is rent-free, when the landlord has shown that the land is within the revenue paying estate.
4. In this case the only document on the side of the defendant is a kabala of 1266 B.S., where there is a bare statement that it is a niskar brahmottar tenure. There is no evidence of the origin of the tenure. As to the plea of non-payment of rent the argument on the other side is that the kabala of 1266 is not a registered document and the landlords were not aware of the assertion of a rent-free tenure by the defendants. There is nothing to show that the landlords were aware of these lands or that they ever made any claim for rent from the defendants. The first claim for rent was made in 1925 and the suit was instituted in 1932. It cannot therefore be said that the defendants held the land openly and adversely to the plaintiffs as a rent-free tenure. In all the circumstances of this case, it cannot be held that the defendants have established their plea of a rent-free tenure. The decree of the Court of appeal below is reversed and that of the Court of first instance is restored with costs in all the Courts. Leave to appeal is refused.