KIRPA SANKER WARRAH Vs. JANKI PRASAD LALLU

JUDGEMENT

(1.) The appellants in all these appeals are the plaintiffs. In Second Appeals Nos. 133 and 134 of 1940 the appellant is a thikadar under the Raja of Jharia and in the remaining appeals the Raja of Jharia is himself the appellant. The material facts in all the cases are the same with minor exceptions which distinguish the thikadar's appeals from the Raja's and which will be mentioned presently. The facts alleged by the plaintiffs were that an ancestor of the Raja settled the lands in suit which are in mouza Jharia with the ancestors of the defendants on the latter agreeing to pay rent at the prevailing rates when demanded. The lands are homestead lands and the defendants took settlement of them for the purpose of constructing buildings on them. It is alleged that in 1343 Fasli the plaintiffs demanded rent at the rate then prevailing in the mouza; but the defendants refused to pay. The prevailing rate is alleged to be Rs. 6 per cottah. In the survey operations of 1925 the lands were recorded in the Malik's khewat and were recorded as belegan. The defence of all the defendants was that no rent was payable in respect of the land in suit. In all the suits instituted by the Raja the relief which he claimed was settlement of rent at Rs. 6 per cottah and recovery of compensation for use and occupation of the lands for the three years prior to the institution of the suit. In the thikadar's suits the only relief claimed was that rent should be fixed at Rs. 6 per cottah including cess. There was no prayer for recovery of money either by way of rent or as compensation for use and occupation. This is one of the facts which distinguishes the thikadar's suits from the Raja's suits. The other distinguishing feature is that the thikadar alleges that he gave the defendants notice to quit while there was no such allegation in the case of the Raja's suits.

(2.) The Court of appeal below, in agreement with the trial Court, disbelieved the plaintiff's case that the lands in suit had been settled with the defendants by the Raja's ancestor in 1307 and 1308 and that there was an agreement to pay rent at the prevailing rate. In other suits by this same landlord, against other persons, where the facts alleged and the reliefs claimed were precisely the same as in these appeals I held that the suits were in effect suits for recovery of rent at the prevailing rate and not suits for assessment of rent and recovery of compensation for use and occupation. This view was confirmed by the Letters Patent Bench (CHINTI KHARIN V. KRIPA SHANKAR REPORTED IN A.I.R. 1941 PAT. 488 It follows that the present suits cannot be regarded as suits for sent with an alternative claim for compensation for use and occupation. The claim for compensation for use and occupation must, therefore, fail for it has been held that such compensation cannot be awarded in a suit based upon an alleged contract of tenancy where the plaintiff fails to prove the cons tract, and has made no alternative prayer: Bhukhi Koeri V/s. Ram Khelawan Prosad 17 C.W.N. 311.

(3.) The next question is whether the plaintiff is entitled to have the rent assessed. The Court of appeal below has presumed a lost grant in favour of the defendants on the ground that they have been in possession for a long time without payment of rent. Now the facts found are that the lands in suit lie within the estate of the Raja, that the ancestors of the defendants and the defendants have been in possession for a considerable time, that no rent has ever been demanded from them until recently, that no rent has ever been paid by them and that no attempt was made to resume possession of the land on the death of the predecessors of the defendants. In my opinion, the existence of these circumstances affords a basis for the presumption that the lands were granted to the ancestors of the defendants and that the grant was rent-free. As it cannot be said that there was no evidence on which the finding could be based it is conclusive in second appeal. The entry in the record of rights that the lands are belagan is not inconsistent with this view, for that entry merely denotes that no rent was then being paid, which is a fact.