1. These eleven appeals have been filed by the tenants defendants under Clause 15 of the Letters Patent against a judgment of Mr. Justice Roxburgh whereby he has dismissed eleven second appeals preferred by them, questioning the correctness of decrees for assessment of rents made by the Courts below.
2. The plaintiff, Rai Bahadur Phanindra Lal Sen, purchased a putni taluk named Lot Simdali at an auction sale held under the Putni Regulation on 17-11-1932. This pu*ni taluk is included in Touzi No. 1 of the Burdwan Collectorate, held by the Maharaja of Burdwan. It is undisputed that in 1210 B.S. the Maharaja created a putni in respect of the lands of Mauza Simdali and other properties in favour of one Jagat Narayan Roy; in 1212 B.S. one Bhaktaram Roy executed another Kabuliat in respect of the lands of Mouza Simdali and other mouzas and in 1221 B.S. one Bhafrab Singh executed a third putni Kabuliat in respect of the lands of Mouza Simdali only.
In 1235 B.S., the putni was sold under the Putni Regulation and purchased by one Badam Bibi and in 1300 B.S. the Putni was again sold and purchased by one Bakkeswar Ta whose heirs were in possession on the date of the auction-sale at which the plaintiff purchased.
The plaintiff instituted the suits out of which these appeals arise for assessment of rent, alleging that the defendants were tenants under theputni purchased by him, that the lands held by the defendants were parts of the 'mal' assets of Touzi No. 1 of the Burdwan Collectorate, that the defendants were liable to pay rent to the plaintiff, but they were refusing to do so relying upon certain incorrect entries in the Record of Rights which recorded their tenancies as 'niskar'.
The suits were contested by the defendants on the ground that the lands of their tenancies were not 'mal' lands, that they had been holding the lands in 'lakheraj' and 'niskar' rights, that the entries in the Record of Rights were correct and that since the defendants were in possession of the lands without payment of rent, they were entitled to claim a rent free title on the presumption of lost grant.
The defendants further pleaded that the suits brought by the plaintiffs were barred by limitation.
3. The plaintiff's suits were decreed by the learned Munsif and those decrees were affirmed on appeal by the Subordinate Judge and on second appeal by Mr. Justice Roxburgh.In six out of the eleven suits, the interest of the defendants has been recorded as 'niskar' raiyati and in the remaining suits as 'niskar' tenure holders, but in all the cases in the Remarks Column there is an entry 'Bhogdakhal sutre'. The Courts below have proceeded on the footing that in cases of this description the initial onus is upon the plaintiff to prove that the land is a part of his 'mal' assets and was taken into account at the time of Decennial Settlement for the purpose of assessing revenue and as soon as that is done, the onus shifts on the defendants to prove that they are entitled to hold the land without payment Of rent.
It has been found in these cases that the plantiff has succeeded in discharging the initial onus, but the defendants have failed to prove that they are entitled to hold without payment of rent.
Mr. Justice Roxburgh has held that under Section 11 of the Putni Regulation the plaintiff was entitled to get the putni free from encumbrances created by the defaulting putnidar or putnidars, and in order to succeed the defendants must prove either that there was a valid or an invalid revenue grant made in their favour prior to the Permanent Settlement or that the rent free title was created by the Maharaja of Burdwan before the creation of the first putni in 1210 B.S.
According to Mr. Justice Roxburgh the entry in the Record of Rights at best proves that the defendants had 'niskar' title under one of the putnidars which was not sufficient to defeat the plaintiff's claim. Against the decision of Mr. Justice Roxburgh the tenants defendants have filed these appeals.
4. Mr. Ghose appearing in support of the appeals has argued, in the first place, that Mr. Justice Roxburgh has misunderstood the effect of the entry in the Record of Rights. According to Mr. Ghose, the effect of the entry is that the defendants must be taken to have proved that they were never liable to pay rent from the inception of the putni.
The putni kabuliats of 1210 B.S. and 1221 B.S. are on the record. The putni kabuliat of the year 1221 B.S. shows that the putnidar was making reservations in respect of a tank for which the Zamindar had granted 'sanad' and also in respect of rents which had been realised by the Zamindar upto the date of the execution of the putni kabuliat. The putnidar was further stipu-lating that he would not raise any objection with regard to the said grant or realisation of rent. If rent free grants had been made by the zamindar before the creation of the putni as alleged by the appellants, it is reasonable to expect that the putnidar would have made similar reservations in respect of those grants, but no such reservation is to be found in the putni kabuliat.
From this fact the interference legitimately follows that rent free grants were not made by the zamindar before the creation of the putni.
5. Mr. Ghose next contended that the expression 'niskar bhogdakhal sutre' in the Record of Rights means that the tenants had acquired rent free title by possession and enjoyment and there is a presumption of correctness of this entry which must prevail unless the contrary is proved by the plaintiff. This interpretation of the entry in the Record of Rights cannot be accepted as correct.
In the case of -- 'Kamala Ranjan Roy v. Ifran Sheikh' : AIR1948Cal14 , to which Mr. Ghose himself drew our attention, Mitter and Akram JJ. observed as follows at p. 16: 'If a property is found to be in possession of a man who is not actually paying rent to anybody the property is to be described as niskar in the column in which rent is to be mentioned. If any document, sanad, chhar, etc., be produced the particulars of the documents are to be stated there. But if no sanad, chhar or other documents of that nature be producedthe remark is to be made that it is Hkksx n[ky dh lw=s**
This passage is based upon an interpretation of Rule 37 of the Technical Rules and Instructions of the Settlement Department which the Settlement Authorities follow.
It follows from the passage quoted above that the entry 'niskar bhogdakhal sutre' means that the tenant is not actually paying rent to anybody and not that the tenant is not liable to pay rent to anybody. The same view has also been taken by Sen and Chunder JJ. in the case of -- 'Bibhuti Bhusan v. Rai Fanindra Lal', S. As. Nos. 1918 to 1330 of 1944 (Cal) (B), which has been referred to by Mr. Justice Roxburgh in his judgment. In this case the learned Judges held as follows: 'A raiyati interest is assessable to rent, the word 'niskar' does not take away from this liability. It only shows that this raiyati interest had been enjoyed by the tenants without paying rent, but it does not show that the lands are not assessable to rent.'
6. We see no reason to differ from the observations made in the two Bench decisions quoted above and, accordingly, we must hold that the word 'niskar', when it appears in the Record of Rights, by itself does not necessarily mean rent free tenancy, but only means that the tenant is not in fact paying rent to anybody.
Mr. Ghose relied upon the decision in the case of -- 'Monohar Das Mahanta v. Charu Chandra Pal', : AIR1951Cal385 (C), for the proposition that in that case a different view was taken of the expression 'bhog dakhal sutre'. On going through that judgment, we find nothing which is contrary to the interpretation of that expression as accepted by us.
7. The next point urged by Mr. Ghose is that in case of the present description the onus is upon the plaintiff to prove that the rent free grants came into existence after the creation of the putni, the presumption being that they 'runback to a period antecedent to the creation ofthe putni.'
In support of this proposition reliance was placed upon the case of -- 'Bipradas Pal v. Ka-mini Kumar' AIR 1922 PC 48 (D). On going through the facts of that case, it appears to us that it is of no assistance to the appellants. That was a case where the plaintiff purchased a putni taluk at a sale held in execution of a rent decree and after serving notices under Section 167 of the Bengal Tenancy Act for annulment of encumbrances, sued for eviction of the defendants as trespassers. The defence inter alia was that no zamindar or putnidar was ever in possession within twelve years and as such the plaintiff's claim was barred by limitation. The plaintiff, however, relied upon .Art. 121 of the Limitation Act.
The High Court in its judgment pointed out that if the plaintiff relies upon Article 121 he has to establish that'the incumbrance which he seeks to annul commenced after the creation of the putni * * * On the other hand, there is ample evidence that the adverse possession of the defendants and their predecessors commenced before the creation of the 'putni'. There are traces on the record to show that there had been assertions of hostile title before the putni itself was created.'
In these circumstances the Privy Council affirmed' the decision of the High Court upon the view that the proper presumption was that the adverse possession of the defendants ran back to a period antecedent to the creation of the putni. In the cases before us there is nothing to show that The tenants and their predecessors had ever asserted a rent free title before the creation of the putni. On the contrary the putni kabuliat of 1221 B.S., to which I have already referred, shows that no reservation was made in respect of any rent free grant by the Zamindar. We must, therefore, hold that the principle laid down by the Privy Council in -- 'Bipradas Pal Chowdhury's case (D)' has no application to the circumstances of the pre-.sent cases. The principle of onus applicable to cases of this description has been settled by a long line of judicial decisions beginning from --'Hurryhur Mookhopadya v. Madub Chunder Baboo' 14 Moo Ind App 152 at p. 172 (E); --'Jagdeo Narain Singh v. Baldeo Singh' AIR 1922 PC 272 CP), and ending with -- ' : AIR1948Cal14 '.
In all these cases it has been uniformly laid down that the initial onus is upon the plaintiff to prove that the lands formed part of his 'mal' assets and as soon as the plaintiff proves that fact, the burden of proof shifts on the defendants to show that they are entitled to hold the land without payment of rent.
It is interesting to note that even in -- 'Bipradas Pal Chowdhury's case (D)', the Privy Council expressly follows the principle in respect of onus laid down in -- 'Hurryhur Mookhopadya's case (E)'. Mr. Ghose made a faint attempt in his opining to contest the finding that the lands are included in the 'mal' assets of the plaintiff, but he finally abandoned the point. We must accordingly hold that the plaintiff has discharged the initial burden that lay upon him to prove that the lands are included in his 'mal' assets, but the defendants have failed to prove that they rare entitled to hold without payment of rent.
8. In his opening Mr. Ghose raised a point that the suits are barred under Article 131 of theSecond Schedule of the Indian Limitation Actwhich provides that in suits to establish a periodically recurring right, the limitation is twelve years from the time when the plaintiff is first refused the enjoyment of the right.
In these cases it has been found by the Courts below that the plaintiff purchased the putni on November 17, 1932 and made demands for rent from different defendants on different dates--the last demand being made in Kartik 1349 B.S.--November 1942. The suits were instituted on July 17, 1943, well within twelve years from the date of the plaintiff's purchase. In view of these findings, Mr. Ghose did not develop this point in the course of his argument and finally said that he abandoned the point about limitation. In these circumstances, this plea must be overruled.
9. As all the points urged on behalf of the appellants fail these appeals must be dismissed with costs--hearing fee being assessed at one gold mohur in each case.
10. I agree.