1. This appeal arises out of a suit under Section 106 of the Bengal Tenancy Act. The lands in dispute were recorded as milik and belagan lands of the defendant No. 1 in the record-of-rights, and plaintiff sued for a declaration that the lands were not milik but mal lands and liable to assessment of rent and for the correction of the record-of-rights accordingly.
2. The plaintiff alleged that defendant No. 2 had been midata (measurer of lands) and held the lands in lieu of his services and that defendant No. 2 had sold the lands which were not transferable (being a service-tenure) to defendant No. 1.
3. The defence was that the lands had been granted as agir to the ancestor of the defendant No. 2 by one Mr. Grant, the mustajir of the mouza, in which the lands were situated, that they were held rent-free by the defendant No. 2 and his ancestors and that they were purchased by the defendant No. 1 from defendant No. 2.
4. The Court of first instance held that the lands were mal lands, but that plaintiff had failed to prove that they were held as a service tenure and dismissed the suit.
5. On appeal the learned special Judge held that the finding of the Court of first instance being that the lands were mal, it was upon the defendant to prove that he was entitled to hold them rent-free under some special con-tract, and as there was evidence to show that they were held as a service (entire, the defendants were bound to adduce rebutting evidence. The learned Judge held^that the evidence adduced by the defendant, failed to rebut the plaintiff's case.
6. Defendant No. 1 has appealed to this Court and it is contended on his behalf that the onus of proof has been wrongly thrown on the defendant.
7. The lands were recorded as milik and belagan in the record-of-rights. Under Section 103(B)(3) of the Bengal Tenancy Act, the entries are to be presumed to be correct until it is proved by evidence that they are incorrect.
8. The Courts below have found that the lands are mal. But that does not dispose of the question because mal lands may be granted rent-free. Indeed the khewat itself shows that the lands are mal as pointed out by the Assistant Settlement Officer. The question turns upon the meaning to be attached to the words mal and milik in the record-of-rights. Milik means proprietary right. It is also applied to the possession of the rent-free lands. I think the word mal is used in the sense that the lands are part of the revenue paying lands of the estate but that they are milik, i.e., rent-free. The defendant does not claim the lands as being revenue-free, but as rent-free, and claims a rent-free title as derived from Mr. Grant the mustajir of the mouza. The lands, therefore, must be mal and the only question, therefore, is whether they were granted as a service-tenure or as rent-free.
9. The entries in the record-of-rights that the lands are milik and belagan are to be presumed to be correct until the plaintiff proves by evidence that they are incorrect.
10. The learned Judge refers to evidence adduced by the plaintiff to show that the lands were held as a service-tenure but he seems to think that the zemindar has only to start a prima facie case and the onus is then shifted on to the defendant to prove that he is entitled to hold them rent-free. In ordinary cases that would be so. But in the present case, plaintiff has not only to start a prima facie case, but to prove by evidence that the entries in the record-of-rights are incorrect.
11. The learned Judge has, no doubt, considered the evidence adduced by the plaintiff to show that the lands were held as a service-tenure, but has not found that the plaintiff has proved by evidence the incorrectness of the entries.
12. The case should, therefore, go back to the learned Judge for re-trial in accordance with the observations made above. Costs to abide the result.
13. A question of limitation was raised in appeal. It was contended that the suit is barred by the special limitation provided for in Section 106 of the Bengal Tenancy Act. The record-of-rights was finally published on the 25th September 1907, and the suit was instituted on the 2nd January 1908.
14. Reference is made to the list of holidays in 1907, to show that December 28th to 30th were not 'executive' holidays though the said days were holidays in Civil Courts, and it is urged that the Court of the Assistant Settlement Officer is not a Civil Court, and Sections 106 and 109 of the Bengal Tenancy Act are referred to for showing that Revenue Courts are treated as different from Civil Courts.
15. But the Revenue officer exercises the functions of a Civil Court in proceedings under 'section 108 of the Bengal Tenancy Act '(see Section 107 Bengal Tenancy Act) and a Revenue Court may for that purpose be considered a Civil Court in the sense that it decides purely civil questions between persons seeking their civil rights. But it is unnecessary to decide the question whether an Assistant Settlement Officer's Court is a Civil Court for the purpose of holidays, because there is nothing to show that the Assistant Settlement Officer's Court was not closed from the 23th to the 30th December in 1907. The executive holidays referred to are holidays prescribed by the Local Government under Section 25 of Act XXVI of 1881, (Negotiable Instruments Act).
16. It is not shown that the holidays observed in the Settlement Courts are those prescribed under that Act. The Assistant Settlement Officer held that the plaintiff had instituted the suit within the statutory period allowed. He must have been aware whether his Court was or was not closed on the 28th to 30th December in 1907. The learned Special Judge also held that the suit was within time, and this question of holidays does not appear to have been raised in either of the Courts below.
17. It was also contended that even if the Settlement Officer's Court was closed on those days, the suit would still be barred as the general provisions of the Limitation Act would not apply when a special period is prescribed by a special or local law. The general provisions of the Act Limitation do not apply to suits, appeals or applications for which periods of limitation are specially provided for by special or local laws where such acts are complete in themselves. But in the case of Sasi Bhusan Rudra v. Gobind Chandra Roy 18 C. 231 it was held, with inference to an application under Section 174 of the Bengal Tenancy Act, that when a fixed period is given to do a certain act and the person bound to perform it is, from no act of his own but from some act or order of the Court, prevented from carrying it out, he gets the advantage of the next open day, and that if the Court be closed on or before the last day of the period limited, the judgment-debtor may pay the sum into Court on the 1st day the Court re-opens not with standing the absence of express provision to that effect.
18. I, therefore, hold that the suit is not barred by limitation.