BALDEB JIU THAKUR Vs. JOGI SAHU

JUDGEMENT

(1.) This is an appeal by the deity, Baldev Jiu Thakur, and his marfatdar sebait against a decision of the Additional Subordinate Judge of Cuttack. The suit was brought to eject the defendants from three plots of land, the total extent being .044 acre. The land described in schedule Ka comprised .034 acre, in schedule Kha .006 acre and in schedule Ga .004 acre. The learned Subordinate Judge finds as a fact, and indeed it was admitted, that all this property was debottar property belonging to the deity. He also finds that the defendants or their ancestors have been in occupation of schedule Ka land since the year 1836 paying a uniform rent of Rs. 3 and that in the year 1918 they built pakka structures in place of the old ones. He also finds that at that time the pakka structures were extended to cover the schedule Kha land. It appears from the plaint that the plaintiffs in the year 1918 did make some protest about the building of a psikka structure but they took no effective action. The defendants also allege that they have erected a latrine on the schedule Kha land and have been in possession of that land for more than twelve years.

(2.) In these circumstances, the learned Subordinate Judge held that the defendants and their ancestors had been living in the schedule Ka land from a long time (in fact from 1836, as I have stated) and that the tenancy is unknown but that the; circumstances warranted a presumption of a lost grant of permanent tenancy to the defendants in respect of this land. He also held that as regards the schedule Kha land the defendants had been in possession since more than twelve years of the suit (in fact, since 1918) and had acquired a title to that land under Art. 142, Limitation Act, as appertaining to their permanent tenancy of Ka schedule land, and he left it to the plaintiffs to bring a separate suit to claim additional rent for the Kha schedule land. With regard to the Ga schedule, he held that the defendants had not established that they had been in possession for more than 12 years from the date of the suit, and as to this he granted the plaintiffs an order for recovery of possession. Against this decision the plaintiffs have appealed. The defendants have also filed a cross-objection with regard to the sche dule Ga land and as to that part of the order of the learned Judge, leaving it open to the plaintiffs to bring a separate suit to fix the rent of the Kha schedule lands.

(3.) As to the cross-objection, with regard to the Ga schedule lands, I need say nothing except that the matter is concluded by the finding of fact of the learned Subordinate Judge, which it is not open to me to question in a second appeal. The main question is the question as to whether the defendants had a permanent tenancy to the schedule Ka land. It is admitted that under suitable conditions a person who has been in occupation of land g for a very long time at a fixed rent, the origin of whose tenancy is unknown, may be presumed to have a permanent tenancy. But it was strenuously argued by Mr. M.S. Rao for the appellants that such a presumption could not be made where the land was debottar land, and he relied upon a decision of the Privy Council in Nainapillai Marakayar V/s. Ramanathan Chettiar A.I.R. 1924 P.C. 65 and a decision of the Calcutta High Court in Satya Sri Ghoshal V/s. Kaaartik Chandra Dass ( 12) 15 C.L.J. 227 in which Jenkins C.J. in the course of his judgment said: The presumption in favour of a permanent tenancy implies that there is ground for inferring that the tenure was always intended to be and always was hereditary, or that it acquired that character by such sequent grant. But a presumption in favour of a transaction assumes its regularity: it cannot be made in favour of that which offends legal principle. It is this that prevents our accepting the view of the lower appellate Court as final, for it would seem that the property to which the presumption has been applied is debutter. If it was debutter at the time the tenancy originated, then this would affect the applicability of the presumption, for to create a new and fixed rent for all time, though adequate at the time, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty in a sebait and is not, therefore, presumable.