1. The appeal arises out of a suit for assessment of rent and for recovery of rent for three years and in the alternative for recovery of damages for use and occupation.
2. The plaintiff's case was as follows: In Touzi No. 5191 in zamindari right there were 3 shares, - 7 annas, 7 annas and 2 annas. One of these two 7 annas was originally held and stood in the name of Ram Raja Das Choudhuri. The plaintiffs purchased 2 annas 2 gandas share out of this 7 annas zamindari right and got their names registered under Act 7 of 1876. Mouzah Chibtabadi falls within this 7 annas zamindari. At present the plaintiffs own the said 2 annas 2 gandas share, and the remaining 4 annas 18 gandas share belongs to the plaintiffs and the pro forma defendants. These shares have been separately recorded in two Khewats, Nos. 1 and 2. The owners of the 4 annas 18 gandas share granted a sikmi taluki interest of their share of the lands of mouzah Chittabadi to two persons Ram Gopal Sarkhel and Ram Prasad Naridi Bera. This interest eventually passed on to one Bhagaban Chandra Guha. In 1267 a confirmatory lease with regard to the said sikmi taluk to the extent of the 4 annas 18 gandas was granted by the then owners of that interest namely Kirti Ohandra Das, Jugal Chandra Das and Ram Kumar Das. The defendants taking advantage of their sikmi kiterest in the said 4 annas 18 gandas shares have, been possessing all the lands of mouzah Chittabadi and have got themselves recorded in the Record-of-Rights in taluk howla or osat howla right in respect of the plaintiffs' share of the lands as well. The plaintiffs therefore prayed for assessment of rent and recovery of-arrears on the footing of the defendants, being their tenants, and, in the alternative, for damages for use and occupation on the footing of their being trespassers. The contesting defendants alleged inter alia that they are not trespassers but that they hold the lands in taluka howla and osat howla right under the 7 annas share of the zamindari and have done so far over 100 years and that the plaintiffs are entitled to get rent on the basis of the patfca by which the sikmi taluk was originally created.
3. Both the Courts below have held that the defendants are not trespassers bat have acquired the right to hold as tenants under the plaintiffs. This question need not be Considered any further. The Subordinate Judge held, that the defendants originally; entered, into possession in osat howla right under a osat howla patta, Ex. C, dated 12<27 B.S, and that they subsequently acquired the howla and taluka right in the 4 annas 18 gandas share, and as the only material on which fair and equitable rent might be assessed was that afforded by the osat howla patta,. Ex. C, the rates mentioned therein were to be taken as the fair and equitable rates. Proceeding on that basis the Subordinate Judge assessed the rent at the rate of 15 annas per kani with cesses at Rs 66-11-1 per annum and damages at 25 par cent. The Additional District Judge on appeals preferred by both sides held that it is true that the defendants originally came in on the strength of the osab howla pabta aforesaid of 1227 B.S., but that subsequently they obtained the taluki right, by the sikmi taluki patta Ex. C 2 dated 1231 B.S. He held that this grant though made by only two persons namely two out of the five sons of Earn Raja Das Choudhuri should be taken, in view of the confirmatory patta RS. C 11 of 1267 and of the other facts and circumstances, to have been made on behalf of all the sons, and that therefore the defendants were liable to pay at the rate of Rs. 8,8 annas 10 gandas 2 karas 2 krantis per drone as mentioned in that patta with, the same eesses and damages as the Subordinate Judges had given.
4. The plaintiffs have then preferred this appeal. They contend: (1) that neither the osat howla grant of 1227 nor the sikmi taluka grant of 1231 is binding on them, and that therefore the prevailing rate should be ascertained and assessment should be made on the principle analogous to what is enunciated in Section 7, Ben. Ten. Acts (2) that the question whether the grant of 1231, though made by two of the sons of Ram Raja Das Ohoudhuri was made by them for themselves as well as on behalf of the other sons with their authority express or implied, was one which was never raised in the written statement and that the appellants have been seriously prejudiced by reason of the Additional District Judge having gone into and decided that question; (3) that in any event the materials on the record are not sufficient to justify the conclusion, at which the Additional District Judge has arrived, that the grant of 1231 was made on behalf of the entire body of the 7 annas zamindars; and (4) that, in any case, the plaintiffs, are entitled to get rent on the basis of the osat howla grant of 1227 under which they first came in.
5. The history of the tenures, such as lias been established upon the evidence adduced in the case, seems to be as follows: At first a howla tenure was created under the 7 annas interest by two persons Ram Chandra and Ramdulal, who were two out of the five sons of Ram Raja, the other three sons being Chandra Dulal, Krishna Dulal. and. Ishan; and Ram Raja having been admittedly the proprietor of the said 7 annas interest. This howla tenure was created in 1214 B.S. In 1227 B.S., the howladars created an osat howla. tenure in respect of the entire tenure in favour of the grandfather of defendant t and the predecessors of the present defendants came into possession of the lands on the strength of this osat howla right. The defendants' predecessors' have in a series of litigations to which reference is unnecessary been asserting, their title as osat howladars and in no view can the defendants be treated as-trespassers. In 1231 B.S., the said Ram Chandra and Ram Dulal ereited the sikmi taluk intermediate between the zamindari and the howla and though1 the defendants' predecessors originally came into possession under the osat howla right, in 1272 B.S., they also acquired the taluki and howla rights by purchase.
6. The District Judge has held that though the taluk was created by only two out of the five sons of Ram Raja, it was really created by them for themselves and also on behalf of all the other cosharers. He has arrived at this conclusion as a matter of inference from certain circumstances which critically examined resolve themselves into the following heads:(a) recitals in the various documents by which the tenures were-created or confirmed; (b) the assertion of the taluka right under the entire 7 annas by the defendants or their predecessor in litigations inter partes and as-a result of which the said right was recorded in the khewat in 1907; (C) an intrepretation of Ex. C. 11 the patta of 1267 B.S.
7. We have carefully examined these materials from which the aforesaid inference has been drawn by the learned1 District Judge. As regards (a) the recitals, even if they be taken to be explicit which they are not, cannot confer a right which was never properly or legally created. As regards (b)., we are not satisfied that taluk right under the entire 7 annas was, in fact, pleaded or asserted, and all we find is that the documents in which the existence of the right may be said to be recited were among the documents that were filed in support of the claim or the defence of the defendants or their predecessors; the litigations moreover werenot concerned with the 2 annas 2 gandas share which is involved in the present suit. The District Judge was of opinion that this assertion of right resulted in the record of the right being made in the khewat which was published in 1907 i.e. more than 12 years ago, and inasmuch as the plaintiffs have not in the meantime taken no steps to recover khas possession, the defendants have acquired limited interest of that right by asserting adverse possession of that right for over 12 years to the knowledge of the plaintiffs. This view, in our opinion, is clearly wrong for the defendants' predecessors having come into : possession under the osat howla right created by the howladars in 1227 B.S., any adverse possession of a limited interest that the defendants or their predecessors had commenced then and during the continuance of that interest, no amount of assertion of the taluka right would legitimately call for a protest from the plaintiffs or require them to take steps for recovering khas possession. As regards (c) the learned District Judge has expressed himself in these words:
Had the original grantors Ram Chandra and Ram Dulal no authority to grant the lease in respect of the entire 7 annas share or had not the other cosharers acquiesced to the grant, Ex. C. 11 confirmatory patta would not have been granted creating separate tenancy recording the 4 annas 18 gandas share on the basis of the old patta Ex. C. 2.
8. The true effect of Exs. C-11 and C-12 in our opinion is very different. There was a transfer in the meantime and the then owners of the 4 annas 18 gandas interest confirmed the terms as regards that interest, ascertained the lands that had bean reclaimed, and assessed the rent in accordance with the terms of the taluki patta Ex. C-2 of 1231 B.S. None of the documents aforesaid in any way affected the share to which the plaintiff's claim in the present suit relates.
9. The proper way to look at the matter, in our opinion, is to start with the principle that the landlord is always entitled to have from his tenant such rents as are fair and equitable, unless the tenant can show that the landlord is precluded from having them by reason of any statute or contract. That there is no law that would stand in the plaintiffs' way is more than clear. As regards contract, none has been proved, either express or implied. The plaintiffs therefore must succeed.
10. As regards the materials on which fair and equitable rents may be assessed, the plaintiffs, whose duty it was to adduce them, have been in default. In the absence of any materials indicating what rents are paid for similar lands in the village or the neighbouring villages they are not entitled to anything more than what the defendants or their predecessors originally paid to the howladars under the osat howla patta on the basis of which the latter came into possession. This, of course, is not a logical standard, but it is the least that the plaintiffs are entitled to.
11. We are therefore of opinion that the appeal should succeed. We accordingly reverse the decree of the District Judge and restore that of the Subordinate Judge with costs in this Court and in the Court of appeal below, subject to the modification that instead of 15 as. per kani the rate should be Re. 1 per kani as the rate of 15 as. mentioned in the patta of 1227 B.S, was in sicca coin.