1. This is one of the test cases in which the same question has been argued, namely the right claimed by plaintiff, the Maharaja of Hill Tipperah, to assess the niskar (rent-fee) tanks situated in his Chakla Roshanabad. Tne plaintiffs' suits have been dismissed in the other appeals, and the suit giving rise to the present appeal was dismissed by the first Court but the Sub Judge has reversed that decision. Hence the defendants, the niskardars, are the appellants before this Court. In the opinions already expressed in my judgment in Maharaja Birendra Kisore Manikya Bahadur v. Akram Ali 13 Ind. Cas. 513 this appeal must succeed.
2. The plaintiff's suit is not maintainable because his right to assess rent on the niskar tanks has not accrued It cannot, therefore, be defeated by reason of the twelve years' rule of limitation.
3. The Subordinate Judge has discussed the defendant's title as derived from the sanad chitti granted by the plaintiff's predecessor in the year 1866. I attach no importance to the fact that this sanad was not produced in the trial of the present suit. It is common ground that the sanads set up or produced in this litigation were of the same type, and we have the specimen in Mharaja Birerdra Kishore Manikya Bahadur v. Akram Ali 13 Ind. Cas. 513. The sanad chitti merely gave permission to re-excavate an old tank: nothing was said as to rent having been paid in the past or being payable at any future time. The plaintiff is estopped from claiming any rent so long as the tank is used for the purposes contemplated by the parties in the year 1866.
4. The appeal is allowed with costs here and heretofore. The plaintiff's suit is dismissed.
D. Chatterjee, J.
5. This case is very similar to Maharaja Birendra Kishore Manikya Bahadur v. Akram Ali 13 Ind. Cas. 513 and the reasons given in my judgment in that ease apply. It is true that the sanad has not been filed in this case but it was filed in the previous cases between the ancestors of the defendants and the Maharaja and his ijaradars and also before the Settlement Officer and was to the same effect as in that case. The said previous litigation seems to throw some light on the question in controversy in this ease. The ijaradars under the Maharaja having dispossessed the defendant's ancestor of some lands covered by the tank with its banks encroachments on the khas lands of the mehal the latter brought a possessory suit and got a decree. The ijaradars brought a regular suit and the Court held the lands were included in the sanad. After that--in 1874--the Maharaja brought a suit for the resumption of some lands said to have been encroached upon by the defendant in excess of the land covered by the sanad and that suit was dismissed on the same ground. Evidently, the Maharaja thought that no claim could be made for the sin d lands.
6. This appeal must, therefore, be decreed with costs.