KRISHNA ROY JIEW DEITY Vs. TINKARI ADHICARY

JUDGEMENT

(1.) The question that arises for decision in this case is whether the suit brought by the purchasers of a darputni for assessment of rent in respect of land recorded in the settlement operations as liable to rent but with respect to which the then landlord took no action for assessment and realisation of rent, after a decree in a suit under Section 30, Regulation II [2] of 1819, is barred by limitation. That suit was suit No. 369 of 1862 and the fact averred in the plaint which has been marked Ex. E was that the defendants were possessing certain lands on a false plea of niskhar. The prayer was that under Section 30, Regulation II [2] of 1819, this false plea of niskhar should be rejected and it should be found that these lands appertained to the mal assets of the plaintiffs. Nothing was said whether the lakheraj that was being wrongly claimed was alleged to have been granted since 1-12-1790, or prior to that date. The suit was decreed and the order was passed that these lands be resumed to as part of the mal assets.

(2.) It is admitted that thereafter no action was taken by the landlords for either amicable realisation of rent or for assessment of rent. It is not disputed that in fact that there was since that date no realisation of rent. If the decree passed in the resumption suit created a relationship of landlord and tenant between the plaintiffs and the defendants in that case, the passing of time without payment of rent would not stand in the way of the landlord pressing his prayer for assessment even at the present day. If, however, a relationship of the landlord and tenant was not created by that decree the position would clearly be that at least within 12 years from the date of the decree the tenant would have perfected his right to continue to hold the land without any payment of rent. The law on the subject as laid down in Bir Chunder v. Raj Mohun, 16 Cal. 449 is in these terms :

(3.) The question therefore, really is whether the lakheraj grant for the resumption of which the suit was brought and the decree which was passed in 1862 was one prior to 1-12-1790 or was one after that date. The plaint Ex. E throws no light on this question. There is this fact, however, to be remembered that it was held by the Full Bench in Sonatun Ghose v. Abdool Furar, 2 W. R. 91 that Section 30, Regulation II [2] of 1819, related only to resumption of lakheraj existing prior to 1790. The fact that the suit was brought under Section 30, Regulation II [2] of 1819, is therefore some reason for thinking that the plaintiffs were seeking to resume a lakheraj which claimed to exist from before 1790. It may toe noticed in this connection that in Bir Chunder v. Raj Mohun, 16 Cal. 449, their Lordships decided from certain circumstances that the suit was one under Section 30 of Regulation II [2] of 1819, though it did not appear clearly from the face of the record and from that very fact concluded that the grant, sought to be resumed was one prior to 1790. I think that it might be possible for a plaintiff to show by proper evidence in a case that though the suit was brought under Section 30, Regulation II [2] of 1819, it was so brought under a misapprehension and that really it was for a resumption of a grant after 1790. In the present case, the plaintiffs have not given any such evidence. Mr. Sen arguing for the appellants has urged that his client might be given an opportunity to adduce such evidence. I see no reason why such an opportunity should be given when with full knowledge of the law he failed to produce any evidence on the point. The burden of showing that the suit was within the period of limitation was on them and in this they could not succeed unless they proved that there was relationship of landlord and tenant created by the decree in that resumption suit. That again depended on the question whether the grant sought to be resumed was one prior to 1-12-1790 or after that. It was their duty to bring evidence to show that though the suit was brought under Section 30, Regulation II [2] of 1819 and so seemingly it was for resumption of a grant prior to 1790 it was not actually so. When they omitted to do so I do not, as I have already stated, see any reason why the matter should be remanded for giving them a further opportunity.