1. The suit out of which this appeal has arisen was brought by the Plaintiffs-Respondents for declaration that no rent is payable in respect of the holding in their possession. During the settlement proceedings in the District the Respondents were not made parties and the tenure was recorded as rent-paying, the rent being fixed at Rs. 15. They then applied under Section 105, Bengal Tenancy Act, to have the entry corrected, but they were not allowed to proceed with their application as they were not parties to the settlement proceeding-they being purchasers from some of the recorded tenants. Thereupon they brought the present suit for establishment of their nishkar right in the disputed land and also for declaration that the disputed lands are not liable to be sold in execution of rent decrees obtained by the landlords Appellants against one of the tenants. Both the Courts have found in favour of the tenants. The appeal is by the landlords.
2. Three points have been raised in this appeal. It is argued in the first place that the burden of proof ought to have been placed upon the Plaintiffs inasmuch as the alleged lakhraj tenure is situated within the ambit of the Defendants' zemindary; and reliance has been placed for this proposition upon the case of Jagdeo Narain Singh v. Baldeo Singh A.I.R. 1922 P.C. 272. The second contention of the learned vakil is that the Courts below have erred in receiving in evidence certain batwara papers. It is also argued that the Courts below have not given proper weight to the presumption arising in favour of the correctness of the record-of-rights under Section 103-B of Bengal Tenancy Act. Lastly it is urged that the Court of Appeal below has relied upon certain ancient documents which were found by the first Court to be not genuine which finding has not been displaced by the Court of Appeal below.
3. This last-mentioned point may be disposed of summarily by observing that the lower appellate Court has not placed any reliance upon these ancient documents in coming to a decision on the merits of the case, but has only mentioned the existence of these documents in narrating the Plaintiffs' story of their claim. Before proceeding to consider the various points raised, it is profitable to refer to the findings of fact arrived at by the Courts below. They have found that the Defendants have failed to prove that they ever realised rent for this tenure, that there is evidence that at least for more than 60 years no rent has been paid in respect of this tenure, that in the year 1896-1897 there were partition proceedings between the landlords including the Appellants under the Estates Partition Act and in the batwara papers of these proceedings the lands are described as rent-free. On these facts the Courts below have come to the conclusion that the Plaintiffs have succeeded in proving that the tenure is rent-free. There is one other finding reached by the lower appellate Court which goes to the very root of the matter. It holds that long possession without payment of rent in open defiance of the landlord's claim for rent is a very strong piece of presumptive evidence of rent-free title; and support for this view has been derived from the cases of Bipradas Pal Chaudhury v. Manorama Debi (1917) 45 Cal. 574 and Jafer Ahmed v. Birendra Kishore Manikya (1913) 22 C.L.J. 126 which are authorities for the proposition that long possession without payment of rent may in certain circumstances justify the inference of rent-free title. An open and adverse assertion by a tenant that the land which he has held is rent-free may, after the lapse of the period of limitation, create a presumption that the tenure has been held without payment of rent even as against the landlord. The tenant may by assertion of adverse title acquire a limited interest in the land which he holds. In the present case all the elements requisite for the conclusion that the tenants are holding this land rent-free for a long time are present and cannot now be questioned; and we cannot say as a matter of law that the Courts below have erred in drawing an inference from these facts. No doubt, as has been laid down by the Judicial Committee in the case above cited, where lands are within the zemindary of the landlord, it was for the tenant to prove the source of the acquisition of his right. But in that case the facts were totally different from those in the present case. In that case the land had been held in ticca from a very long time and the fact that the tenant never paid rent to the ticcadar was held not to affect the zemindar's right. There is one piece of evidence which is exceedingly damaging to the Defendants' case. There were proceedings in 1896 under the Estate Partition Act between the landlords to which the tenants were not parties. It appears that in those proceedings it was conceded by all the landlords that the lands in suit were held rent-free by the tenant; and we have no doubt that in adjusting the assets of the different co-sharers at the time of the partition these lands were treated as rent-free and in the division of the estate they were allotted to the Appellants. Besides, it being admitted by the Appellants that the lands were at that distant date considered to be rent-free, it would not be right now to allow the Appellants, after the assets of their share had been ascertained on the. basis that these lands were rent-free, to recover rent in respect of these lands and thereby to put them in a more advantageous position than their other co-sharers. 'We fail to sea why the batwara papers should not be used as evidence in the case. In our opinion, they are very valuable pieces of evidence.
4. Then with regard to the presumption as to the correctness of the record-of-rights, the learned Judge gives his opinion on this question in these words: ''In these circumstances I am unable to find that the presumption regarding the assessable character of the tenure should prevail against the Plaintiffs who were not parties to the same and who were entitled to have the proceedings simply ignored and shift out when they sought to challenge the entry.' In another passage the learned Judge observes as follows: 'In my opinion the presumption of the correctness of the entry under Section 103, Bengal Tenancy Act, has been sufficiently rebutted by Plaintiffs' evidence of user by themselves and their predecessors,' These findings upon the evidence conclude this question. We think that the findings arrived at by the Courts below are based upon evidence and no error in law has been committed in arriving at those findings.
5. The appeal is accordingly dismissed with costs.