1. This is an appeal by the defendant in a suit for assessment of rent. The plaintiff came into Court on the allegation that the defendant, a tenant within his estate, had encroached upon the land in dispute and was consequently liable to pay rent in respect thereof. According to the plaintiff, he became aware of the encroachment by the defendant in the course of settlement proceedings in 1897. The defendant resisted the claim on the ground that he held the land under a rent-free grant, made to his ancestor in order that a tank might be excavated thereon. He denied that he had encroached on the disputed land and further pleaded that if his rent-free title was not established, the claim for assessment of rent was barred by limitation. The Court of first instance found that the defendant had a rent-free title and dismissed the suit. Upon appeal the District Judge has reversed that decision and assessed rent on the disputed land.
2. It is plain that this decision cannot be possibly supported.
3. It has been argued on behalf of the plaintiff in this Court that we should adopt the course which was pursued in the case of Birendra Kishore Manikya Bahadur v. Akram Ali 13 Ind. Cas. 513 : 15 C.L.J. 194 at p. 198 : 16 C.W.N. 304 at p. 308 : 39 C. 439 namely, dismiss the suit on the ground that the right to have rent assessed on the disputed land had not accrued at the date of suit. That decision is clearly distinguishable. In that case, the original grant was produced and the Court held, upon a construction of its terms, that the proprietor would have a right to assess rent on the property only after it had ceased to be a tank and that consequently the suit was premature. In the present case, the grant has not been produced, and there is nothing to show that liability to pay rent had been suspended and would be received in a particular contingency. Besides, the view suggested is absolutely inconsistent with the assumption on which the suit was instituted. The plaintiff now contends that the defendant has not encroached upon this land which was granted to him under an agreement to excavate a tank, and that his right to have rent assessed thereon would accrue only if the tank ever silted up and became unfit for use. The plaintiff cannot be permitted to turn round at this the final state of the litigation and put forward a case inconsistent with the allegations in the plaint, which have been found to be untrue.
4. Then, again, when we look to the merits of the case, it is perfecly plain that the plaintiff cannot succeed in his claim for assesment of rent. The defendant contends that the land was given rent free fey an ancestor of the plaintiff to his grandfather in 1837 in order that a tank might be excavated thereon. The tank was excavated at the expense of the grantee, and although the grantee and his descendants have been in occupation for more than 60 years, no rent has ever been claimed or paid. The legitimate inference, in these circumstances, is that the defendant holds the land under a rent-free grant. But even if it be assumed that the defendant does not hold the land under a rent-free grant, it is plain that the claim for assessment of rent is barred by limitation. The defendant asserted to the knowledge of the plaintiff, in the course of settlement proceedings, on the 7th April 1897, that he was under no obligation to pay rent and that the claim then put forward by the plaintiff for assessment of rent was entirely unfounded. This suit was not instituted till the 8th September 1909. It is thus clear from every point of view that the plaintiff cannot succeed.
5. The result is that this appeal is allowed, the decree of the lower Appellate Court set aside and the suit dismissed with costs in all the Courts.