1. This appeal has arisen out of a suit for assessment of rent. The defence case was that the land in suit was rent-free land. The Court of Appeal below has found that the presumption arising from the Record of Rights that the land is liable to assessment of rent has been rebutted. The learned Judge has also found that the evidence justifies the inference of lost grant of rent-free rights. In this appeal it is contended that the Court of Appeal below has wrongly relied upon the fact that rent was not paid for a considerable period in coming to the conclusion that the presumption arising upon the entry in the Record of Rights was rebutted, and a reference has been made to the case in Jagadeo Narain Singh v. Baldeo Singh (1922) 9 A.I.R. P.C. 272 in which it has been laid down that
mere non payment of rent or discontinuance of payment of rent has not, by itself, been held in India to create adverse possession.
2. Reliance has also been placed upon the case in Brojendra Kishore v. Mohim Chandra : AIR1927Cal1 in which it has been held that
where the period during which the defendants have been in possession is left in an indefinite and nebulous state, that is not sufficient even when taken with the fact that no rent has been paid to show that the entry in the Record of Rights is incorrect.
3. As regards rebuttal of the presumption arising from the entry in the Record of Rights each case depends upon its own facts and no doubt the facts of that case were somewhat similar to those of the present case. So that, there may be some force in the argument of the learned advocate for the appellant that the Courts below were not justified in relying merely upon the evidence of non-payment of rent to rebut the presumption arising from the Record of Rights of lost grant; however as to the finding it appears to me that the appellant is on weaker ground. There is a definite finding that the evidence justifies an inference of lost grant of rent-free right. No doubt in their written statement the defendants relied upon adverse possession. But I think that that would not preclude the Courts from coming to a finding of lost grant. In coming to this finding they have relied upon the facts that rent-free title was set up as early as 1806 in a Sarpatra of which the trial Court says that 'there can hardly be any doubt that the Sarpatra relates to the land in suit.' In this Sarpatra a considerable area of the land of the zamindary was released by the landlord as rent-free debutter. The learned Judge also finds that 'the evidence justifies the inference of a lost grant of rent-free right.' This finding cannot be upset in second appeal unless based on no evidence or on inadmissible evidence. The circumstances relied upon are (1) the statements made by an old man of 70 years to the effect that the land has been held rent-free from the time of his ancestors, (2) that it was claimed to be rent-free in the partition proceedings in 1917, in which proceedings the predecessor, in-interest of the plaintiff was a party, (3) that in 1899 it was claimed to be rent-free by the defendants in proceedings to recover rent from their tenants, and (4) that in 1806 it was released from the payment of rent by the landlord when the tenants-claimed it to be debutter (Ex. A). It has been pointed out that it has not been proved that the land in suit is included in the land referred to in Ex. A. The lower Court held that it was so included without giving any satisfactory reason for so finding. Apparently at that time about 300' bighas of land out of the total area of about 1500 bighas of the zamindary were claimed as rent-free. The identity may not be established but at least the documentary evidence shows that there was a considerable' quantity of rent-free land in the village and when this is taken with the other circumstances referred to it, seems to furnish a substantial basis for the finding of the Appellate Court that the circumstances. justify an inference of a lost grant of rent-free right.
4. It is clear that at least since 1917 it must have been known to the plaintiffs' predecessor that a rent-free claim was being made and during the 16 years which elapsed till the institution of the suit, although the plaintiffs must have known that the land was being held rent-free under & claim of rent-free title, no rent was recovered and the finding is that for many years previous to 1914 no rent was paid. Therefore even if Ex. A has not been proved to include the land in suit, there still remains sufficient evidence to support the finding of lost grant. This must be taken with the finding, which is also a finding of fact, that the presumption as to the entry in the Settlement Record has been rebutted. In Jagar Ahamd v. Birendra Kishore (1914) 1 A.I.R. Cal. 820, it has been laid down that 'long possession without payment of rent may justify, in the circumstances of a particular case, an inference of rent-free title.' This has also been held in Chattra Nath v. Babar Ali : AIR1925Cal635 . This was however a stronger case than the present one inasmuch as there were old batwara papers in which the land appeared as niskar. In a case like this, where both Courts hold that the presumption arising from the entry in the Record of Rights has been rebutted and there is some justification for that finding, I think that this finding should not be disturbed in second appeal, although no doubt the mere [nonpayment of rent for a very long period is not generally in itself sufficient to establish rent-free title. This appeal is accordingly dismissed with costs.