JAGATDWIPTENDRANARAYAN BHUP Vs. BILASH RAY AGARWALLA

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of. a suit brought by him through the Regency Council, Cooch Behar, for assessment of fair and equitable rent for 5 acres and 14 decimals of lands which have been recorded in Khatiyan No. 2197 of Mauza Tetulia. The case of His Highness the Maharaja Jagatd wiptendranarayan Bhup Bahadur is that the suit land lies within the ambit of his zamindari and in the Record of Eights, which was finally published in 1914, he has been recorded as the landlord in respect of the suit lands and the lands are shown as being liable to enhancement of rent. The defendants contend mainly, first, that they and their predecessor-in-interest were in possession of the lands in suit for nearly 100 years or more under a rent-free title and secondly, they contend that the suit is barred by the statute of limitation as the defendants and their predecessor have been exercising right over these lands openly with the knowledge of the plaintiff as rent-free holders for over 100 years.

(2.) It is not necessary to set forth here the precise statement made in para. 4 of the written statement filed by the defendants, for the purpose of showing that the defendants do not set up adverse possession to the fullest extent in the sense of possession adverse to the rights of his Highness the Maharaja as zamindar. But in para. 4 of the written statement they distinctly allege that there had been a grant by some predecessor-in-interest of the present Maharaja to the predecessor-in-interest of the defendants and that the rent-free grant was made by the former to the latter. This portion of the written statement is material for the purpose of considering the question of limitation, which has been found in favour of the defendants by both the Courts below. The Munsif of Jalpaiguri, who tried the suit in the first instance, rightly held that the burden of establishing that the defendants held under a rent-free title lay on the defendants themselves for in the Record of Rights these lands are shown as belonging to the zamindar and as forming part of their mal assets at the time of permanent settlement and as liable to be assessed with rent. The Munsif, notwithstanding the view that he correctly took on the question of the burden of proof, held that from long continued uninterrupted open possession for over 40 or 50 years without payment of rent by the defendants and their predecessor-in-interest, rent-free title might be inferred on the theory of lost grant. On the question of limitation, the Munsif relied on Ex. E and the petition which was put in before the Assistant Settlement Officer in the course of settlement proceedings and the Munsif came to the conclusion that " the defendants made the assertion of an independent title hostile to the plaintiff." Consequently the present suit not having been instituted within 12. years of the date of this assertion, the suit is barred by Art. 144, Limitation Act.

(3.) Against this decision, an appeal was taken to the Court of the Subordinate Judge of Jalpaiguri, and he has affirmed the decision of the Munsif on both the points, accepting the defence of the defendants on the question of rent-free title as well as the question of limitation.