1. This appeal arises but of a suit in which the main relief claimed by the plaintiffs was the declaration of their title to some land in Mas khawar right, the eviction of the defendant from the land or assessment of fair rent therefor, and other incidental reliefs. The plaintiffs' case was that the land was recorded as being in the defendant's possession in 'bargabhag' under the plaintiffs, that the defendant used to deliver bdrga-produce but set up his jote right for the first time in 1914 in a suit for recovery of bargar produce and on this denial of the plaintiffs' right to barga-produce the suit was dismissed The plaintiffs alleged that since then the defendant was holding the land as a trespasser. The defence, on the other hand, was that the defendant and his ancestors had jote right to the land, that it formed part of the defendant's tenancy under the plaintiffs and their co-sharers at a rental of Es. 34-3-5, that on partition the rental in the plaintiff's share became Its. 15-13-0 and that the plaintiffs were not entitled to anything extra for the land which was being held all along as a part of the said tenancy.
2. The Munsif decreed the suit declaring the plaintiffs' khas khamar right and giving the plaintiffs' khas possession and mesne profits.
3. The Subordinate Judge then reversed that decision and dismissed the suit holding that the defendant has succeeded in proving that the land forms part of the defendant's admitted tenancy under the plaintiffs and their co-sharer. This finding of the Subordinate Judge rests upon the following conclusions at which he arrived, 1st, the Kecord of Eights which was in favour of the plaintiffs does not raise any presumption as the entry therein was an unauthorised one; and the plaintiffs' documentary evidence, viz., the chitta paitha and jamabandi are full of serious discrepancies, suggesting that they were prepared with a sinister motive and are, therefore, utterly unreliable; 3rd, the onus is upon the plaintiffs to show that the; defendant held the land in barga, and the plaintiffs have failed to prove that the defendant or his predecessors ever gave barga crops for it, while, on the other hand, the circumstances admitted or proved made it highly probable that the defendant's case was true. The learned Judge was also of opinion that even if the plaintiffs' case was made out, namely, that the defendant was a bargadar in respect of the land in suit, the present suit was barred both for assessment of rent and for eviction of the defendant as he has been asserting since 1905 that the land is a part of his admitted tenancy and no additional rent is payable thereof.
4. Before dealing with the grounds of law upon which the learned Judge's finding to the effect that the land forms part of the admitted tenancy of the defendant is challenged on behalf of the appellants, it is necessary to deal with the last of the aforesaid reasons given by the Subordinate Judge, for, if that reason is sound, no other question will arise. The learned Subordinate Judge has observed thus in his judgment: 'The defendant with his ancestors have been in possession of the land as long as living memory runs and no witness speaks of the origin of the possession; and at least from 1905 he has asserted his fight to it as appertaining to his admitted tenancy, and maintained his possession. So the plaintiffs' right to Mas possession or to assessment of additional rent for it should be deemed to be barred. The appellants contend that if the defendant came upon the land as a bargadar, ab assertion on his part of his right to hold it as a part of the jama admittedly held by him can bar the plaintiffs' 'claim for khas possession or assessment of rent. In this behalf reliance, has been placed first of all on the case of Corea v. Appuhamy (1912) A. C. 230 : 81 L.J.P.C. 151 : 105 L.T. 836 in which Lord Macnaghten observed that one entering into possession and having a lawful title to enter, could not divest himself of that title by pretending that he had no title. To apply that principle to the present case it will have to be assumed that the defendant in the present case had a title under which he could enter and remain on the land, but that is not the plaintiffs' case here; as according to the plaintiffs the defendant was a 'bargadar' which word, as observed by the learned Subordinate Judge, is to be, understood in the sense in which it is understood in the district, namely, that it means a labourer enjoying half the produce. That case is also an authority for the proposition that one cannot alter the character of his possession, for instance possession as a co-sharer to that as the sole owner, by any secret intention in his mind. Here in the present case there is no question of the defendant's occupation as a bargadar being altered to that as a tenant by any secret intention, for the finding is that there has been an open assertion of a right to hold the land as a, part of the admitted tenancy. Nextly it is contended that if the defendant came upon the land lawfully as a bargadar and continued in possession no assertion of a right to hold it as a part of his admitted tenancy for any length of time would create a title in him to hold it otherwise than in accordance with the terms of the contract under which he came in. In support of this proposition reliance has been placed upon the cases of Beni Pershad Koeri; v. Dudhnath Roy 26 I.C. 216. 27 C. 156 : 4 C.W.N. 274 : 7 Sar. P.C.J. 580 : 14 Ind. Dec. (N.S.) 103 (P.C.); Seskamma Shettati v. Chickaya Ilegade 25 M. 507 : 12 M.L.J. 119 and Birendra Kisore Manilcya Bahadur v. Fuljan Bibi 38 Ind. Cas. 469 : 25 C.L.J. 467. In the first of these cases it was held that the possession of a tenant for life could not become adverse within the meaning of the Limitation Act by a mere notice from him that he was holding on a perpetual or hereditary tenure. The reason of the rule is that so long as he was entitled to hold as tenant for life, no suit could have been brought against him. In the second case the same principle was held applicable to the case of a tenant from year to year or for a term of years or as mortgagee during the continuance of such relation as between him and his landlord or his mortgagor respectively. In the third case it was laid down that while a Contract of tenancy is in force neither party can obtain a variation thereof even if he persists long enough in his assertion that one of the terms is otherwise than what it really is. It is not pretended on behalf of the plaintiffs that there was any contract in the present case under the terms of which the defendant could hold on inspite of the hostile assertion on his part. These principles in my opinion, therefore, cannot be of any assistance to the plaintiffs. If the land is found as not included in the admitted tenancy, it must be a case of encroachment or trespass by the defendant. In such a case it is well settled that if the tenant is in adverse possession of the absolute interest for over twelve years, then the landlord's right should be held to be completely extinguished. If the tenant is in adverse possession for such a period in respect only of a limited interest as tenant, then whatever may be the effect Of it on the question of the landlord's right to Jchas possession a claim for assessment of rent will not be barred unless as provided for in Art. 130 or 131 of the Schedule to the Limitation Act. A suit to establish a right to assessment of rent is governed by Art. 131.
5. Limitation under this Article does not run until there has been a proper demand and a refusal and mere exclusion from; enjoyment does not cause time to run unless there, has been refusal as a result; of a demand properly made: Hem Chundra Chowdhury v. Atul Chundra Chakrabarti 21 Ind. Cas. 179 : 19 C.L.J. 118 : 19 C.W.N. 386. There is a difference from one point, of view between a case where, the tenant asserts that the land encroached upon by him is a part of an admitted tenancy and cases where the tenant sets up a rent-free title to the encroached laud of which Birendra Kisore Manikya Bahadur v. Laksmi 30 Ind. Cas. 896 : 22 C.L.J. 129 and Kali Mohun Tripura v. Birendra Kisore Manikya 31 Ind. Cas. 391 : 22 C.L.J. 309 are typical instances and in which it has been held that where a tenant has for over twelve years asserted to the knowledge of the landlord that he is under no obligation to pay rent the claim to assessment of rent is barred. The difference is that in one case the assertion means that rent is being already paid for the land and so more rent is not, payable, and, in the other that no rent sis payable because the landlord is not entitled to realise any rent for the land. Suits for assessment of rent-free lands are governed by Article 130 of the Limitation Act and have, to be instituted within twelve years from the time when the right to assess the land first arises and this right may arise upon a distinct notice of the tenant's claim to hold it rent-free. The case which approaches nearest to the present one is that of Tar an Chandra. Ghose v. Ganendra Nath Roy 11 Ind. Cas, 30 : 16 C.W.N. 235. That was a case in which the plaintiff's case was that the defendant had encroached upon,, the plaintiff's khas land and the prayer, as,' far as it can be made out from the report, was to eject the defendant or failing in that to recover rent from him, and the defendant resisted the claim on the ground that he had occupied the holding for about twenty years as a part of his admitted jamas and that, therefore, he was not liable to pay any additional rent for the land much less to be evicted therefrom. It was found that more than twelve years before suit there was the assertion of this right by the defendant and that the defendant had forcibly in assertion -of his claim, appropriated the entire crops from the land and thereafter continued in possession. Under these circumstances it was held th,at the plaintiff's right to khas possession or to recover rent was barred. It was not a claim for assessment of rent but to recover the share of the 6arga.-produ.ee or possibly the price representing the same, and the facts found amounted to a refusal to deliver the barga rent. In the present case I am unable to read the findings of the learned Subordinate Judge as involving findings which would invoke the operation of Article 131 and bar to the plaintiffs' claim for assessment of fair rent. 1 am of opinion, therefore, that if it is a case of encroachment by the defendant the plaintiff notwithstanding defendant's assertion to hold the land encroached upon as a part of the admitted tenancy may still have a right to have fair rent assessed for the land, In this view it becomes necessary to consider the other grounds upon which the decision of the lower Appellate Court is based.
6. The first ground urged in the appeal is to the effect that the learned Subordinate Judge is in error in holding that the finally published Record of Rights does not, in the circumstances of the case, raise any presumption in favour of the plaintiffs. This objection is certainly correct, but the defect in the judgment of the learned Judge in this respect is a mere matter of form and not of substance. The learned Judge has considered, the circumstances connected with the entry and has found that the entry was an unauthorised one and, to put it shortly, was a wrong entry, as disclosed by the internal evidence relating to the proceedings as a result of which the entry was made. What; he should have done wa3 to hold not that the presumption did not arise but that it arose and was destroyed. There is, therefore, no substance in this ground.
7. The second ground is to the effect that the learned Judge has wrongly placed the onus of proof on the defendant. On the question as to whether the land was a part of the defendant's admitted tenancy the learned Judge observes as follows:--Now, no doubt ordinarily when the question is whether a particular plot of land admittedly within the ambit of the landlord's estate appertains to an admitted tenancy of a tenant, and 'that land is not contiguous to any admitted land of the tenancy the burden is on the defendant to prove his case. But in such cases the landlord either does not admit the tenant's possession to the disputed land or alleges that the possession has been recent and wrongful. But here the possession admittedly extended over several generations and the possession was not wrongful-it was rightful possession though the landlords allege that the defendant's right to possess or cultivate the land was different from his tenancy right, that it was a right derived from a barga contract* The landlords thus allege an affirmative fact, a barga distinct from the tenancy and the defendant denies it. The defendant has little opportunity of proving the negative, while the landlord, ought to have positive evidence to prove the fact.' It is fairly well-settled' that the mere fact that the defendant holds some land under the plaintiffs would not be sufficient to throw upon the plaintiffs the burden of proving that in respect of any other land in the estate which the defendant may be found to be in possession of, he has no right as a tenant, and that if the land in dispute does not lie contiguous to any lands of the admitted tenancy, th6 onus is on the defendant to prove that it is a part thereof. This proposition has been laid down in a series of cases amongst which reference may be made to those of Ram Monee Mohurir v. Aleemoodeen 20 W.R. 374; Raj Kishen Mookerjee v. Pearee Mohup Mookerjee 20 W.R. 421; Batai Ahir v. Bhuggobutty Koer (ll);. Sheodeni Roy v. Chatoorbhuj Roy 8 Ind. Cas. 785 : 12 C.L.J. 376; Nanda Lai Goswami v. Jajneswara Haider 6 C.W.N. 105 and Prolap Chandra Roy v. Judhister Das 23 Ind. Cas. 69 : 19 C.L.J. 408 : 19 C.W.N. 143. The facts mentioned by the learned Subordinate Judge as distinguishing the present case from this long line of cases, do not make any difference on the questioif: of onus, but affect only the question as to the quantum of proof necessary to discharge it. The respondent, however, urges that the learned Subordinate Judge on a consideration of the defendant's evidence has held that the defendant's case was highly probable and that this showed that he has not proceeded upon the view of onus that he has propounded in his judgment. I have read the judgment of the learned Judge over and over again and I think that although it cannot be said that a high degree of probability always satisfies the requirement of the definition of proof under Section 3 of the Evidence Act, yet in view of the findings arrived at by the learned Judge fin the relevant questions of fact in the present case it may be safely held that he was of opinion that the defendant had proved Liu case apart from the question of onus.
8. The effect of this finding is that the land ' is proved to have been included in the defendant's rent pacing jote of Rs. 34-5-5 gds. If that is so it stands to reason that the defendant should not be called upon to pay any additional rent for it. If the laud has been treated as otherwise in the partition as a result of which the plaintiffs got the portion of the jama bearing a rental of lis. 15-13-0 the defendant is not responsible for it and it is only a matter of apportionment as between the plaintiffs and their co-sharers. It would be obviously unjust to pass a decree for additional rent against the defendant and put him to the expense and harrassment of claiming an abatement from the plaintiff's co-sharers.
9. I am accordingly of opinion that the appeal fails and should be dismissed with costs.