DHIR NARAYAN CHAND Vs. (MAHARAJADHIRAJ) KAMESAHWAR SINGH BAHADUR

JUDGEMENT

(1.) These appeals arise out of two suits which ware tried together. One suit was brought under Section 104-H, of the Bengal Tenancy Act, by the landlord of the mouza in respect of the entry in the Kosi Diara record of rights that Khewat 81 was rent free milik. The other suit was brought under the same section by the tenants in respect of Khewat 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. So far as Khewat No. 71 is concerned, the record of rights was against the tenant's claim that they held the land rent-free.

(2.) 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 more than twelve years, it should have been held by the lower Court that they had by adverse possession, acquired a right to hold the lands free of rent. In support of this contention Mr. Nandkeolyar has cited Birendra Kishore V/s. Ram Chandra Dey AIR 1915 Cal 835; he has however not failed to appreciate the difficulty caused by the observation of their Lordships of the Judicial Committee in Jagdeo Narain Singh V/s. Baldeo Singh AIR 1922 PC 272 at p. 52, of 2 Pat: 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 1924-25 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 agents must have been aware of the rent free character of the holding of these tenants in respect of the the disputed land.