1. The plaintiff in the suit and the appellant before us is a landlord and the defendant No. 1 is a tenure-holder in respect of two plots of land within the ambit of the plaintiff's estate. In a Record of Rights published in the year 1910, the land was entered as liable to be assessed with rent (jamajogya). The suit was brought for the purpose of having rent assessed and the defence of the defendant No. 1 is that the land is held rent-free.
2. The plaintiff, however, is not the sole land lord. His own case is that the land is situated in a Mauza of which an undivided half appertains to estate No. 1818 and the other half is revenue-free. He claims to be the sole proprietor of estate No. 1818 and to be the owner of a ten-annas share of the moiety of the village held free of revenue. He has made party defendants to the suit the proprietors of the remaining six-annas share of the revenue-free title.
3. In the trial Court the Munsif framed five issues, of which the second, third and fourth are as follows:
(2) Can the plaintiff alone maintain the suit? Can the suit as framed proceed?
(3) Is the suit barred by limitation?
(4) Is the plaint land liable to be assessed with rent? If so, what would be the fair rent payable for the land to the plaintiff?
4. On the second issue the learned Munsif held 'on principles of justice and equity' that the plaintiffs do sharers being party defendants he was entitled to maintain the suit.
5. On the question of limitation the Munsif seems to have thought that limitation would run from the date of the Record of Rights and as the suit had been brought within twelve years from that date, he held that it was in time.
6. On the fourth issue the Munsif found, firstly, that the defendant No. 1 had no good title to hold the land rent-free and secondly, that the fair rent for the quantity of land held under the plaintiff, whether as a revenue paying or a revenue-free proprietor, was Rs. 18 odd.
7. The Munsif made a decree in the plaintiff's favour in accordance with these findings.
8. The defendant No. 1 thereupon appealed to the District Judge, who has dismissed the suit.
9. The view of the learned District Judge is that the plaintiff is on the horns of a dilemma. Either there is an agreed rent for the land, in which case the plaintiff can sue for such rent and cannot sue for assessment; or there is no agreed rent, in which case regard being had to the period during which the defendant No. 1 has admittedly been in occupation, the right to have rent assessed accrued more than twelve years before the suit was instituted and the suit is barred by limitation under Article 130 of the Limitation Act.
10. Now, the Munsif was no doubt wrong in taking the entry in the Record of Rights as the starting point for limitation. Such an entry confers no title. On the other hand the District Judge has lost sight of the fact that the entry is presumably correct until the contrary is established by legal evidence. According to the entry the plaintiff and his co-sharers are entitled to some rent for the land. If the plaintiff is able to prove an existing rent that may be the rent proper to be fixed. But the defendant denies that there is an existing rent and if no existing rent is established, the plaintiff and his co-sharers are still, as I have said, according to the entry entitled to some rent.
11. The District Judge, therefore, erred in law in dismissing the suit in limine, as he has done. It may be that the defendant No. 1 has given evidence sufficient to show either that he has a good rent-free title to the land or that the land is held under a rent-free grant which in its origin was invalid but which it is now too late to question, or that by adverse possession he has acquired a title to hold the land rent-free. On the other hand the plaintiff may have established that the defendant No. 1 has all along held the land as tenant subject to the liability to pay rent. But these various alternatives depend on the evidence adduced by the parties which the District Judge has not examined. As matters stand, he has erred in dismissing the suit without going into the evidence. Until the evidence afforded by the entry is found to have been rebutted, Article 130 can have no application because the suit is not a suit 'for the resumption or assessment of rent-free land' within the meaning of the Article. It is a suit for the assessment of land presumably liable to be assessed. In that state of things the circumstance that rent has not in fact been paid for more than twelve years before suit is not per se sufficient to support a decree of dismissal [of Prosonna Kumar Mukherjee v. Srikant Raut 16 Ind. Cas. 865 : 40 C. 173 : 16 C.L.J. 202 : 17 C.W.N. 137. The right to have rent assessed must continue so long as the relationship continues of landlord and tenant of land liable to be assessed. The right can only be lost by one or other of the modes recognized by law. The land is prima facie mal land and until the presumption and the consequences flowing from it are rebutted, the principle applies which underlies the decision in Protap Chunder Chowdhry v. Shukhee Soonduree Dassee 2 C.L.R. 569, as explained in Bir Chunder Manikya v. Raj Mohun Goswami 16 C. 449 : 8 Ind. Dec. (N.S.) 296.
12. In the trial Court the defendant No. 1's case was that the land was part and parcel of a rent-free grant in favour of the idol 'Krishna Rai Jiu' but the learned Munsif found against this plea. The District Judge has not considered it. The Munsif mentions that the defendant No. 1 instituted a suit before the Settlement Officer under Section 106 of the Bengal Tenancy Act to dispute the correctness of the entry in the Record of Rights, but withdrew from the case me District Judge makes no reference to this.
13. The defendant No. 1 has a second line of defence, which is touched upon in the judgment of the Courts below and was the subject of argument before us. It is that the suit as framed is not maintainable in view of the provisions of Section 188 of the Bengal Tenancy Act. The learned Munsif's reference in this connection to the general principles of equity is out of place because those principles, or the individual Judge's view of the effect of those principles, must give way to a specific rule of law, whether the rule be a rule established by the general law applicable to the topic or a rule enacted by the Legislature.
14. Now it is clear that the plaintiff's co-sharers not having joined as plaintiffs, the suit is not well framed so far as it relates to anything which the landlord is 'required or authorised to do' under the Bengal Tenancy Act. It is, therefore, unnecessary to consider whether an application for the assessment of rent can be made under Clause (d) of Section 158. Section 188 applies to an application under the terms of that section [Moheeb Ali v. Ameer Rai 17 C 538 : 8 Ind. Dec. (N.S.) 898] just as it does to a suit to enhance rent under Section 7 or Section 30 [jatindra Nath v. Prasanna Kumar 8 Ind Cas. 842 : 38 I.A. 1 : 38 C. 270 : 15 C.W.N. 74 : 9 M.L.T. 1 : 13 C.L.J. 5l; 8 A.L.J. 1 : 13 Bom. L.R. 1 : 21 M.L.J. 94 : (1911) 2 M.W.N. 119 (P.C.)].
15. The question is whether, as the District Judge has held, relying on Khondakar Abdul Hamid v. Mokini Kant Saha Chaudhuri 4 C.W.N. 508, a suit to assess rent is maintainable under the general law, irrespective of anything in the Bengal Tenancy Act. The question was adverted to but not decided in Barhamdat Missir v. Krishna Sahay 20 Ind. Cas. 910 : 18 C.W.N. 466. The case cited by the District Judge was decided in 1900 by Banerjee and Stevens, JJ. In the previous year Ghose and Banerjee. JJ., had held, in a suit in the course of which the plaintiff asked for assessment of rent that there was no reason why he should not be entitled to such relief [ Assanullah Bahadur v. Mohini Mohan Das 26 C. 739 at p. 745 : 13 Ind. Dec. (N. s.) 1072]. In Abdul Hakim Shaha v. Rajendra Narain Roy 1 Ind. Cas. 312 : 13 C.W.N. 635 and Khondakar's case 4 C.W.N. 508 was doubted but followed; there, however, the claim was for compensation for use and occupation and the doubt had reference, not to the question whether a suit for assessment would lie under the ordinary law, but to the question whether land accreted to a holding could be treated as a separate tenancy [Maharaj Kumar Krishna Das v. Girja Nath Ray Chowdhury 3 Ind. Cas. 472 : 10 C.L.J. 458 at p. 461 and Sati Prosad Garga v. Radha Nath Maity 18 Ind. Cas. 197 : 16 C.L.J. 427 at p. 429]. In Harihar Pande v. Karamat Hossein 4 Ind. Cas. 175 : 9 C.L.J. 493 the claim was for 'assessment of rent and for recovery of such rent for a certain period' (page 494 Page of 9 C.L.J.--Ed.), and the right to sue passed unquestioned.
16. Such a right is consistent with, and arises out of, the general law and land revenue system of the country. The Zemindar is responsible to the Government under severe penalties for the punctual payment of his revenue. The tenure-holder is responsible to the landlord under similar penalties for the payment of his rent. On the other hand the Zemindar and the tenure-holder are alike entitled--until the right is lost to rent for every bigha of mal land [Forbes v. Meer Mahomed Hossein 12 B.L.R. 210 at p. 215 : 20 W.R. 44. The right to have rent assessed is recognized by the old Regulation relating to the resumption of revenue-free and rent-free grants. It is recognized and still frequently asserted under such provisions as those contained in Section 37 of the Bengal Land revenue Sales Act (No. XI of 1859) and in Section 11 of the Patni Taluk Regulation of 1819. It is recognized, again, in Clause (2) of Section 105 of the Bengal Tenancy Act and there is no ground for saying that after a Record of Rights has been prepared the only mode of obtaining assessment is by application under that section such an application has to be made within two months of the date of the certificate of final publication of the record. The effect of Section 111B is that subject to the provision of Section 109, the parties are at liberty after three months from the same date to seek any remedies open to them in the ordinary Civil Courts. Clause (4) of Section 111B provides for the suspension of limitation during the period of three months. Clause (1)(a) expressly mentions a suit for the decision of the issue 'whether the land is or is not liable to the payment of rent.' In a suit by the landlord, if that issue is decided in his favour, he must have, as a necessary consequence or corollary, the right to have rent assessed.
17. Both in principle, therefore, and in view of the authorities, I agree with the District Judge that it was open to the plaintiff to bring such a suit as the present under the general law. That being so, no valid objection can be taken to the frame of the suit.
18. The result is that there being no preliminary ground to justify the dismissal of the suit, the judgment and decree of the lower Appellate Court should be set aside and the case remitted to that Court in order that the appeal thereto may be re-heard with reference to the observations I have made. Costs will abide the result.
19. I agree.