DHIRNARAIN CHAND Vs. MAHARAJADHIRAJ KAMESHWAR SINGH BAHADUR

JUDGEMENT

(1.) These appeals arise out of two suits which were tried together. One suit was brought under Section 104-H of the Bengal Tenancy Act by the landlord of the mauza in respect of the entry in the Koir Diara Record of Rights that Khewat No. 81 was rent free milik. The other suit was brought under the same section by the tenants in respect of kheiuat No. 71 which was shown as kabil lagan. The trial Court held against the tenants in both the suits, and appeals by the tenants to the District Judge failed. The tenants now appeal to this Court.

(2.) So far as khewat No. 71 is concerned the Record of Rights was against the tenants claim that they held the land rent-free. In the appeal relating to this land, all that Mr. Nandkeolyar has been able to urge is that in view of the admitted fact that the tenants were in possession for mpre than 12 years, it should have been held by the lower Courts that they held, by adverse possession, acquired a right, to hold the lands free of rent. In support of this contention Mr. Nandkeolyar has cited Maharaja Birendra Kishore Manikya Bahadur V/s. Ram Chandra Dey 30 Ind. Cas. 948 : 22 C.L.J. 153. He has, however, not failed to apprecia e the difficulty caused by the observation of their Lordships of the Judicial Committee in Jugdeo Narain Singh V/s. Baldeo Singh 71 Ind. Cas. 984 2 Pat. 38 at p. 52 : 3 P.L.T. 605 : A.I.R. 1922 P.C. 272 : 36 C.L.J. 499 : 32 M.L.T. 1 : (1923) M.W.N. 361 : 27 C.W.N. 925 : 27 C.W.N. 925 : 45 M.L.J. 460 : 49 I.A. 399 (P.C.): Again mere non-payment of rent or discontinuance of payment of rent has not, by itself, been held in India to create adverse possession.

(3.) The crux of the matter is that possession cannot be adverse from before the other side is shown to have become aware of the character of the claim. The express finding of the lower Appellate Court is that there is no satisfactory and reliable evidence on the side of the defendants to prove that before the Survey Settlement proceedings in 1924-192 they ever asserted their milik rent-free right to the disputed lands to the knowledge of the plaintiff's local agents or of the plaintiff. It has been urged that as the land in question was surrounded by the mal lands of these appellants and other tenants, the landlord's local agent must have been aware of the rent-free character of the holding of these tenants in respect of the disputed land. That however, cannot be called an interference of law. It was possible in the circumstances of the case for the Courts of fact to infer that the landlord's agent knew. But it was also possible in law for them to infer that they did not in fact know. The inference, in these circumstances has been conceded to be an inference of fact. It is therefore, impossible in second appeal to go beyond the concurrent findings of fact of the Courts below that the plaintiff or his local agents only came to know of the, rent-free claim of the tenants-appellants in 1924-1925. The tenants appellants are thus without a rent-free claim perfected by 12 years adverse poisoning, and the second appeal in respect of khewat No. 71 must, therefore, fail.