HARIPADA CHOWDHURY Vs. RAMKRISHNA ROY AND ORS.

JUDGEMENT

(1.) This is an appeal against a decision of the Sub-ordinate Judge, Additional Court, Hooghly, dated the 20th May, 1950, affirming the decision of the Munsif, First Court, Arambagh, dated the 5th March, 1949.

(2.) The plaintiff is the appellant before us. The suit out of which this appeal arises was a suit for recovery of rent at the rate of Rs. 9 per year, in the alternative for assessment of fair rent. The plaintiff is the owner of the touzi within which the land in question is situate. On the 28th Feb., 1936, and on the 29th Oct., 1936, the record-of rights relating to this land was finally published. The record-of rights so far as it relates to the plaintiff records the land as 'Bajeyapti Lakheraj' land belonging to the plaintiff (C.S. record, Ext. 1). The portion of the record-of-rights which relates to the defendant (Ext. f, Khatian No. 7) describes these plots as possessed by the defendants in VARNACALUR MATTER The plaintiff's case was that the land in question formed part of the mal assets and that rent was paid by the defendants up to the year 1650 B. S. but from 1351 B.S. a different attitude was taken up by them and payment of rent has been stopped. The defendants case is that the land is a nishkar land and that the plaintiff is not in any way entitled to recover any rent in respect thereof from them. In the written statement filed by the defendants it was expressly stated that no rent was paid in respect of the said land and nobody has or had any right to claim such rent and that the defendants were enjoying the said land in nishkar. In support of the said case the defendants produced at the trial a kobala executed by the plaintiff's grand-father in favour of one Sriram Chowdhury regarding the land in question. The said kobala was dated the 1st Oct., 1894. The land in question was therein described as nishkar land. It should be stated that the interest of the said Sriram Chowdhury in the said land was purchased by the defendants' predecessor-in-interest in a court sale on the 12th March, 1913. The trial Court found in favour of the defendants and dismissed the suit. An appeal was preferred against the said decision and was heard by the Subordinate Judge, Additional Court, Hooghly, who by his order dated the 20th May, 1950, affirmed the decision of the trial court, and dismissed the appeal. Thereafter the present appeal has been filed to this Court by the plaintiff.

(3.) It appears from the judgment of the lower appellate court that the said court held that although these lands formed part of the mal assets of the zemindary owned and possessed, but that having regard to the entry in the settlement records, there was a presumption that the nishkar title belonged to the defendants or, in other words, the defendants held the said land as nishkar. The lower appellate court also held that the suit was barred by limitation and the said decision was based on the following grounds:-