Asutosh Mookerjee, J.
1. This is an appeal by the defendants in a suit for assessment and recovery of rent upon declaration that the disputed land is rent-paying. The Courts below have found in favour of the plaintiff, and the substantial question now in controversy is, whether the claim for assessment is or is not barred by limitation. The defendants have urged a further point of subordinate importance, namely, that rent should not be decreed for a period antecedent to the date of assessment.
2. On the 18th December 1844 one Karim Sarcar, now represented by the defendants-appellants, executed a kabuliyat in favour of Mritunjoy Moitra, the father of the plaintiff-respondent. As the determination of the rights and obligations of the parties depends upon the terms of the contract between them, the relevant portion of this document is set out here:
I, Karim Sircar, son of Fozdar Sircar, of Haldi, Thana Tanar, District Rajshahye, executed this kabuliyat in the year 1251 to the effect following:That you have an eight-anna Zemindari interest in Kismat Haldi the Mahal No. 1210, borne on the Touzi of the Collectorate, within Pargana Chinashour which you are in ownership and possession of without any objection of others. Two plots of land described in schedule below appertaining to your distinct Saham of the aforesaid eight-annas of the aforesaid Touzi and measuring about 4 bighas, are now lying palit and covered with jungle. As it requires great labour and expense of money to render the lands of the aforesaid two dags fit for cultivation by clearing the jungle thereof and filling up khals and khandars you notified to make the said laud hassil by granting a settlement thereof for a term of 10 years, free of rent, that is to say, keeping the rent in abeyance. I, accordingly, having agreed to take the said land, execute this kabuliyat and agree that I shall myself bear the expenses that will be required to render the lands of the two dags mentioned in schedule below fit for cultivation by clearing the jungle thereof and filling up the khals and khandars, and to recoup myself for the said expenses, I shall enjoy the profits of the said lands and hold the same as lakheraj for 10 years from the beginning of 1252 up to the end of 1261 that is, up to (torn) you shall not get any rent (torn) but on the expiry I shall be bound to pay the rent that may be fixed upon a measurement and according to the rate and the area of land whether more or less. If I, through any neglect on my part, fail to re-claim the said lands within the said term or if I partly re-claimed the same and leave partly unreclaimed, then you shall, on the expiry of the term, bring the said land into your khas possession, and I shall be bound to pay the costs that will be incurred to bring the said land under cultivation, as also damages. If I do not pay the same amicably, you shall realise the same with costs by bringing a suit in proper Court. I shall keep intact the limits, etc., of the land. 'If any one encroaches upon the boundaries through any neglect on my part, then I shall make good the loss that you may sustain to bring the same in your possession, together with interest thereon. If any measurement of the mahal or assessment of rent thereof is made, then I shall be bound to pay the rent that may be fixed at any time according to the rate. To the above effect I, having received a pattah as a counterpart of this kabuliyat, do execute this kabuliyat. Finis. The 5th Pous 1251 B.S.
3. There is no room for doubt that the land leased out was mal land, which was intended to be re-claimed and brought under cultivation by the lessee. No rent was to be paid during the first ten years, inasmuch as the lessee would have to undergo great labour and incur heavy expenditure. On the termination of ten years, that is, with effect from 13th April 1855, the lessee would be liable to pay such rent as might be fixed upon a measurement and according to the rate and the area of the land. No rent was, however, ever assessed, and in the course of Survey and Settlement proceedings, which took place shortly before this suit, the defendants asserted before the Revenue Authorities that the land was held by them as perpetually rent-free. The plaintiff thereupon instituted the present suit on the 3rd October 1917 for declaration that the land was rent paying, for assessment of rent at the rate of Rs. 6. a bigha, or such other rate as might be deamed fair and equitable by the Court, and for recovery of arrears, at the assessed rate with effect from the 14th April 1914. The defendants resisted the claim on a variety of grounds which need not now be re-capitulated. They were all overruled by the Primary Court, and rent was decreed at the rate claimed. This decree has been affirmed by the Subordinate Judge on appeal. On the present appeal, two points have been urged, namely, firstly, that the suit was barred by limitation under Article 130 of the Schedule to the Indian Limitation Act; and, secondly, that rent should not have been decreed for a period antecedent to the assessment.
4. As regards the first question, our attention has been invited to Article 130 which prescribes that a suit for the resumption or assessment of rent-free land must be instituted within twelve years from the date when the right to resume or assess the land first accrued. This Article, in our opinion, has no application to the present case. It was pointed out in Kamini Sundari Chowdhurani v. Abdul Halim 47 Ind. Cas. 420 : 28 C.L.J. 254 that Article 130 can have no application, unless and until the land is found to be rent free; the mere non-payment of rent for a period does not bar the landlord's right to have the rent assessed and to recover rent from his tenant. To the same effect is the decision in Dhananjoy Manjhi v. Upendranaih Deb 46 Ind. Cas. 428 : 22 C.W.N. 685. There, as here, the suit was not for the resumption or assessment of rent-free land, but for the assessment of mal land presumably liable to be assessed. In that state of things, the circumstances that rent has not in fact been paid for more that 12 years before suit, is net per se sufficient to support a decree of dismissal; Prosonna Kumar Mukherjee v. Srikant Raut 16 Ind. Cas. 365 : 40 C. 173 : 16 C.L.J. 202 : 17 C.W.N. 137 which has been affirmed by the Judicial Committee in Jagdeo Narain Singh v. Baldeo Singh 71 Ind. Cas. 984 : 3 P.L.T. 605 : (1922) A.I.R. (P.C.) 272 : 36 C.L.J. 499 : 32 M.L.T. 1 (P.C.). The right to have rent assessed^ must continue so long as the relationship of landlord and tenant continues in respect of land liable to be assessed; Birendra Kisore Manikya Bahadur v. Nazir Mahommad 30 Ind. Cas. 917 : 22 C.L.J. 122. The right can only be lost by one or other of the modes recognised by law. The land is prima facie mal land, and until the presumption and the results flowing therefrom are rebutted, the principle applied which underlies the decision in Protap Chunder Chowdhury v. Shukhee Soonduree Dassee 2 C.L.R. 569 as explained in Bir Chunder Manikya v. Raj Mohun Goswami 16 C. 449 : 8 Ind. Dec. (N.S.) 296 see also Jotindra Mohan Tagore v. Chandra Nath Safui 6 C.W.N. 360; Barhamdat Missir v. Krishna Sahciy 20 Ind. Cas. 910 : 18 C.W.N. 466; Jagannatha Pandiajiar v. Muthia Pillai 14 M.L.J. 477; Mohammad Husain v. Mohammadi Bibi 28 Ind. Cas. 600 : 13 A.L.J. 333. Reference may also be made to the decision of the Judicial Committeee in Hurryhur Mookhopadhya v. Madub Chunder Baboo 14 M.I.A. 152 : 20 W.R. 459 : 8 B.L.R. 566 : 2 Suth. P.C.J. 484 : 2 Sar. P.C.J. 713 : 20 E.R. 743 and the decisions of this Court in Arfunnessa v. Peary Mohun Mookerjee 1 C. 378 : 25 W.R. 209 : 1 Ind. Dec. (N.S.) 237 and Koylashbashiny Dossee v. Gocoolmoni Dossee 8 C. 230 : 10 C.L.R. 41 : 4 Ind. Dec. (N.S.) 167 where the law applicable to the resumption and assessment of lakheraj grants will be found reviewed; see also Regulation XIX of 1793, Section 10 and Regulation II of 1805, Section 3. The true scope of Articles 130 and 131 was recently explained by the Bombay High Court in the cases of Sakharam Gopal Page v. Trimbakrao Ramchandra 61 Ind. Cas. 40 : 45 B. 694 : 23 Bom. L.R. 314 and Bhimabai v. Swamirao 60 Ind. Cas. 892 : 45 B. 638 : 23 Bom. L.R. 100. The right to levy assessment upon rent-free lands is governed by Article 130 and is consequently extinguished under Section 28, if no suit to enforce the right is instituted within the time allowed, Abhoy Chum Pal v. Rally Pershad 5 C. 949 : 6 C.L.R. 260 : 2 Ind. Dec. (N.S.) 1213; Madhavrao Hariharrao v. Anusuyabai 36 Ind. Cas. 505 : 40 B. 606 : 18 Bom. L.R. 768. On the other hand, under Article 131, the right to levy assessment would, as a recurring right, accrue when there has been a demand and refusal, only in those cases where the relationship, of landlord and tenant or landlord and occupant had ever existed. Once that right is established, then the non-payment of rent or assessment would not be sufficient to enable the tenant to begin to set up a title by adverse possession. There must be some overt act, such as a refusal to pay the rent or assessment, before time begins to run, see Ganesh Vinayak Joshi v. Sitabai Narayan Joshi 38 Ind. Cas. 54 : 41 B. 159 : 18 Bom. L.R. 950; Kirpa Ram v. Jai Chand 23 Ind. Cas. 445 : 140 P.L.R. 1914 : 46 P.W.R. 1914; Bangarayya Garu v. Jagannatha Garu Raju 5 Ind. Cas. 615 : 7 M.L.T. 278 : (1910) M.W.N. 485; Manavikrama Zamorin Raja Avergal of Calicut v. Achutha Menon 23 Ind. Cas. 806 : 38 M. 916 : (1914) M.W.N. 228 : 15 M.L.T. 226 : 26 M.L.J. 377. This is in harmony with the view that where a tenant claimed land as rent-free to the knowledge of the plaintiff, and no suit for resumption or assessment was brought till after the expiry of 12 years, the suit was barred by limitation under Article 130, Birendra Kishore v. Roshan Khan 13 Ind. Cas. 518 : 39 C. 453 : 15 C.L.J. 803 : 16 C.W.N. 931 note Birendra Kishore v. Akram Ali 13 Ind. Cas. 513 : 39 C. 439 : 16 C.W.N. 304 : 15 C.L.J. 194; Birendra Kishore v. Dilwar Ali 13 Ind. Cas. 517. In the case before lis, the defendants repudiated the right of the plaintiff to assess and recover rent, for the first time within 12 years of the suit, consequently, the suit is not barred under Article 131.
5. As regards the second question, we are of opinion that the defendants should not be made liable for a period antecedent to the assessment. The contract clearly contemplated that liability to pay rent should accrue only after assessment. We should, in such circumstances, follow the course adopted in Rangayya Appa Rao v. Bobba Sriramulu 31 I.A. 17 : 27 M. 143 : 8 C.W.N. 162 : 14 M.L.J. 1 : 6 Bom. L.R. 241 : 8 Sar. P.C.J. 617 (P.C.) and Assanulla v. Mohini Mohan Das 26 C. 739 : 13 Ind. Dec. (N.S.) 1072 rattier than apply the principle that a landlord may claim back rents for additional area, Jagannath Manjhi v. Jumman Ali Patwari 29 C. 247; Upendra Nath Nag Chowdhury v. Surya Kanta Roy Chowdhury 20 Ind. Cas. 205.
6. The result is, that this appeal is allowed in part, and the decree of the Court below modified. The plaintiff will be declared entitled to rent at the rate Claimed with effect from the date of the judgment of the Trial Court (27th September 1918) and not before. The plaintiff will, however, be entitled to his costs in all the Courts.