1. These seven appeals are on behalf of the pltf and arise out of as many suits for recovery of 'khas' possession, or in the alternative for assessment of fair and equitable rent. The case of the pltf is as follows: The lands in all the suits are situate in Mouza Nala appertaining to Touzi No. 1 of the Burdwan Collectorate. The Maharaja of Burdwan, as owner of Touzi No. 1 granted a Mourashi Mokrari settlement of the lands in suits to the predecessor-in-interest of the pltf about 200 years ago. The pltf is the Mohant of a 'Math' which is very ancient institution and the Maharaja of Burdwan made the grant to the original Mohant of the Math. The pltf further alleges that all the lands appertain to the 'Mal' assets of the Maharaja and belong to the pltf's Mokrari Mahal in Mouza Nala. The deft's predecessors, according to the pltf, were 'Chakrandars'. Subsequently the 'chakran' lands were resumed & possessed in Khas by the pltf. Lastly, the pltf granted 'Bhag' settlement of the lands in dispute to the predecessor-in-interest of the defts. It is alleged that during the last cadastral survey operations in 1334-1335 the defts and their predecessors colluded with the pltf's Gomastha named Annada Sarkar & got the lands recorded in the record-of-rights as 'bhog dakhal sutre niskar'. The pltf alleges that the entry in the record-of-rights is absolutely erroneous & that the defts are trespassers, but in case it is found that the defts are not trespassers, fair & equitable rent in respect of the holdings may be assessed.
2. The defence which is material for the purpose of these appeals is that the defts & their predecessors-in-interest have been in possession of the lands in suit for long over 200 years without any demand or payment of rent; secondly, that the lands do not fall within the ambit of the regularly assessed Mahal of the pltf & as such they do not belong to the pltf's 'Mal' assets. Thirdly, that the pltf's claim is barred by limitation.
3. The Ct of first instance decreed the suits upon the findings that the lands in suit do form part of the 'Mal' assets of the pltf; that the documents produced by the defts in support of their rent-free title either do not relate to the lands in suit, or are inadmissible in evidence; that the entry in the record-of-rights as to the Niskar character of the defts' tenancies was based upon those inadmissible documents; & therefore, the entry in the record-of-rights was erroneous. The pltf's prayer for assessment of rent was accordingly allowed, though the claim for 'khas' possession on ejectment of the defts was refused.
4. Against the decision of the learned Munsiff the defts filed seven appeals in the Ct of the Dist Judge. The learned Dist Judge has reversed the decision of the learned Munsiff & dismissed the pltf's claim for assessment of rent. The learned Dist Judge has affirmed the finding of the learned Munsiff that the lands in all the suits appertain to the 'Mal' lands of the Maharaja of Burdwan and that the lands in all the suits are assessed to revenue & are parts of the 'Mal' estate of the Maharaja. But the learned Dist Judge has taken a different
view as to the rights of the parties upon the evidence on the record. In the first place, the learned Dist Judge has found that the story of the pltf that the entry in the record-of-rights was the result of collusion between the pltf's Gomastha and the defts had not been proved. In the second place, the learned Dist Judge has further found that it is not correct to say that the entry in the record-of-rights was based only upon the documents which were held to be inadmissible by the learned Munsiff. He pointed out that the documents
might have been taken into consideration by the Settlement Officer for the purpose of ascertaining the duration of the defts' possession & the Settlement Officer might have taken into account the oral evidence within living memory as to the non-payment of rent. In the third place the Ct of appeal below relied upon certain cess receipts, Exs. A to A (24), which, according to the defts, relate to four out of these seven appeals for the purpose of showing,
that the tenancies were admitted to be rent-free ones in those receipts. In the fourth place, the learned Dist Judge found that the positive case of the pltf to the effect that the lands in suit were 'Chakran' lands held by the predecessors of the defendants & that they were subsequently let out in 'bhag' to the predecessors of the defts has not been established by any documentary evidence or any collection papers showing realisation of 'bhag' paddy. In
the fifth place, upon a consideration of the entire oral and documentary evidence the learned Dist Judge has found that although there is no sufficient direct evidence of any original grant of rent-free title, there is sufficient evidence that the tenants and their predecessors have been holding the lands for a very long time on assertion of rent-free title to the knowledge of the landlord & without any objection or attempt on his part for assessment or realisation of rent. Lastly, the Ct of appeal below has found that the pltf's claim for assessment of rent is barred by limitation, because although there is no evidence of demand for assessment & refusal on the part of the tenants, the pltf had innumerable opportunities of making demand for assessment.
5. Against this judgment, the pltf has filed the present appeals & Dr. Sen Gupta appearing in support of these appeals, has argued in the first place that the decision of the Ct of appeal, below on the question of limitation is wrong. It is pointed out that under Art. 131, Limitation Act which governs suits of this description, the period of limitation is 12 years from; the time when the pltf is first refused the enjoyment of the right. As there is no evidence of any demand or refusal it is clear that Art. 131, Limitation Act does not apply. There fore, the pltf's suits cannot be said to be barred under that Article. The question whether the defts have acquired rent-free title by remaining in possession of the land for a long period without any demand for or payment of rent is another question.
6. In the second place, Dr. Sen Gupta has argued that in view of the finding that the lands in suit formed part of the 'Mar lands of the Maharaja of Burdwan, the onus of proof is upon the defts to show that the lands are rent-free. Mr. Sen appearing for the resps does not dispute this proposition of law, but he contends that the defts have discharged the onus which lay upon them of proving that the lands are rent-free. Mr. Sen has relied strongly upon the finding arrived at by the Ct of appeal below to the effect that the tenants have been in possession of the lands in each of these appeals for a very long time without payment of any rent to the full knowledge of the pltf. It is true, as pointed out by the Judicial Committee in the case 'Jagdeo Narain Singh v. Baldeo Singh', 49 I A 399 at p. 412: (A I R (9) 1922 PC 272), that mere non-payment of rent or discontinuance of payment of rent does not, by itself, create a rent-free title. But it has also been pointed out in the case of 'Kiran Chandra v. Srinath : AIR1927Cal210 that long possession without payment of rent under a definite claim of right does raise a presumption of lost grant. Applying these principles to the circumstances of the present case, we find that in these appeals the tenant-defts were in possession for a very long time under a definite claim, that they were rent-free tenants and the record-of-rights which was finally published in June 1931, has also recorded their status as rent-free tenants although in the remarks column it has been said that they are rent-free tenants 'bhog dakhal sutre'. In these circumstances in an ordinary case a presumption of lost grant would arise but Dr. Sen Gupta has argued that the presumption of lost grant cannot arise in these cases, because the lands belong to an 'Asthal' of which the pltf is the Mohant & under the law the Mohant could not make any rent-free grant. In support of this proposition Dr. Sen Gupta has relied upon the decision of the Judicial Committee in the case of 'Palaniappa v. Deivasikamony', 44 I A 147: (A I R (4) 1917 PC 33). This case, however, does not go to the length of saying that a rent-free grant cannot be made by a Mohant under any circumstances. All that it says is that a permanent lease of temple lands at a fixed rent, or rent-free for a premium is valid only if made for a necessity of the institution. It is well-known that a Mohant may alienate the land of the temple for legal necessity, or to use the expression used by the Judicial Committee, 'for the benefit of the estate'. The question, therefore, in the present appeals, is whether we are entitled to presume that at some point of time in the remote past there was such a legal necessity which would authorise the then Mohant of 'Asthal' to make a rent-free grant in favour of the defts. In the case of 'Kiran Chandra v. Srinath : AIR1927Cal210 Chakravarti J. quoted with approval certain observations of Lord Herschel in the case of 'Philips v. Halliday', (1891) AC 228: (61 L J Q B 210), which run as follows: 'Now, I apprehend that where there has been long continued possession in assertion of a right, it is a well-settled principle of English Law that the right should be presumed to have had a legal origin, if such a legal origin was possible, & the Ct will presume that those acts were done & those circumstances existed which were necessary to the creation of a valid title.' If we apply this principle to the facts of the cases before us, we find that we can presume in the facts of these cases that those circumstances existed which were necessary to the creation of a valid rent-free title of the defts. We, therefore, hold that the presumption of lost grant is not inherently improbable, or illegal in the circumstances of the present cases.
7. As already pointed out, besides the non payment of rent for a very long period, the Ct of appeal below has also relied upon the entry in the record-of-rights, the failure of the positive case of the pltf that the defts' predecessors were 'Chakrandars' or 'Burgadars' and also upon the admission about the rent-free title of the defts made by the pltf in cess receipts, Exs. A to A (24). With regard to these cess receipts, Dr. Sen Gupta has strenuously urged that the defts have not proved that they relate to any of the lands in suit. The Ct of appeal below has observed that these cess receipts cover lands which are the subject-matter of apps, Nos. 187, 188, 192, and 193. Dr. Sen Gupta has pointed out that this observation of the learned Dist Judge is based upon no evidence. Mr. Sen, appearing for the respondents argued that these documents were admitted without any objection by the pltf and he placed before us the cross-examination of pltf's witness No. 1, where that witness admitted that these receipts were in the handwriting of certain officers of the pltf's estate. Therefore, admission related only the proof of the handwriting. We accordingly hold that the defts have not proved to which lands these cess receipts refer & as such these cess receipts should be excluded from consideration in deciding the rights of the parties.
8. Another circumstance which has been relied upon by the Ct of appeal below against the pltf is the non-production of the Potta by which the Maharaja of Burdwan settled the lands with the pltf in Mukrari mourashi right. The learned Judge made the following observation on this point:
'It is not seriously disputed that there were some Lakheraj lands within the boundaries of Mouza Nala and these were covered by the Mourashi Mokrari Potta of the pltf. In these circumstances one would reasonably expect a reference to these Lakheraj lands as well as other rent-free lands in the Potta itself. I am of opinion, therefore, that the non-production of the Potta, in the peculiar circumstances of the present cases, raises a presumption in favour of the deft appellants.'
9. Upon a consideration of all these circumstances, we are of opinion that the decision arrived at by the Ct of appeal below must be affirmed although we do not agree with some of the reasons given by the learned Dist Judge.
10. In the result these appeals fail & are dismissed. But in the circumstances of the cases we make no order as to costs.