MOSLEMA KHATUN Vs. FANINDRA LAL SEN

JUDGEMENT

(1.) These eleven appeals have been filed by the tenants defendants under Clause 15 of the Letters Patent against a judgment of Mr. Justice Roxburgh whereby he has dismissed eleven second appeals preferred by them, questioning the correctness of decrees for assessment of rents made by the Courts below.

(2.) The plaintiff, Rai Bahadur Phanindra Lal Sen, purchased a putni taluk named Lot Simdali at an auction sale held under the Putni Regulation on 17-11-1932. This pu*ni taluk is included in Touzi No. 1 of the Burdwan Collectorate, held by the Maharaja of Burdwan. It is undisputed that in 1210 B.S. the Maharaja created a putni in respect of the lands of Mauza Simdali and other properties in favour of one Jagat Narayan Roy; in 1212 B.S. one Bhaktaram Roy executed another Kabuliat in respect of the lands of Mouza Simdali and other mouzas and in 1221 B.S. one Bhafrab Singh executed a third putni Kabuliat in respect of the lands of Mouza Simdali only. In 1235 B.S., the putni was sold under the Putni Regulation and purchased by one Badam Bibi and in 1300 B.S. the Putni was again sold and purchased by one Bakkeswar Ta whose heirs were in possession on the date of the auction-sale at which the plaintiff purchased. The plaintiff instituted the suits out of which these appeals arise for assessment of rent, alleging that the defendants were tenants under the putni purchased by him, that the lands held by the defendants were parts of the 'mal' assets of Touzi No. 1 of the Burdwan Collectorate, that the defendants were liable to pay rent to the plaintiff, but they were refusing to do so relying upon certain incorrect entries in the Record of Rights which recorded their tenancies as 'niskar'. The suits were contested by the defendants on the ground that the lands of their tenancies were not 'mal' lands, that they had been holding the lands in 'lakheraj' and 'niskar' rights, that the entries in the Record of Rights were correct and that since the defendants were in possession of the lands without payment of rent, they were entitled to claim a rent free title on the presumption of lost grant. The defendants further pleaded that the suits brought by the plaintiffs were barred by limitation.

(3.) The plaintiff's suits were decreed by the learned Munsif and those decrees were affirmed on appeal by the Subordinate Judge and on second appeal by Mr. Justice Roxburgh. In six out of the eleven suits, the interest of the defendants has been recorded as 'niskar' raiyati and in the remaining suits as 'niskar' tenure holders, but in all the cases in the Remarks Column there is an entry "Bhogdakhal sutre". The Courts below have proceeded on the footing that in cases of this description the initial onus is upon the plaintiff to prove that the land is a part of his 'mal' assets and was taken into account at the time of Decennial Settlement for the purpose of assessing revenue and as soon as that is done, the onus shifts on the defendants to prove that they are entitled to hold the land without payment Of rent. It has been found in these cases that the plantiff has succeeded in discharging the initial onus, but the defendants have failed to prove that they are entitled to hold without payment of rent. Mr. Justice Roxburgh has held that under Section 11 of the Putni Regulation the plaintiff was entitled to get the putni free from encumbrances created by the defaulting putnidar or putnidars, and in order to succeed the defendants must prove either that there was a valid or an invalid revenue grant made in their favour prior to the Permanent Settlement or that the rent free title was created by the Maharaja of Burdwan before the creation of the first putni in 1210 B.S. According to Mr. Justice Roxburgh the entry in the Record of Rights at best proves that the defendants had 'niskar' title under one of the putnidars which was not sufficient to defeat the plaintiff's claim. Against the decision of Mr. Justice Roxburgh the tenants defendants have filed these appeals.