SOBHAN BAKSH Vs. MAHARAJA BIRENDRA KISORE MANIKYA BAHADUR

JUDGEMENT

(1.) This is an appeal by two of the defendants in a suit for recovery of possession of land with mesne profits or, in the alternative, for assessment of rent. The case for the plaintiff is that he is the owner of an extensive zemindari, that within his estate there are large tracts of land whereof possession has been taken by different persons without his knowledge and consent, that the defendants are persons of this description, that they are in occupation without title to the disputed lands in respect of which they wrongfully secured an entry in the Settlement Record on the 14th July 1898 to the effect that they were settled raiyats, and that thereafter they have neither attorned to him nor paid him rent. The plaintiff consequently seeks to reject the defendants as trespassers; he prays in the alternative that if, for any reason, ejectment is not decreed, rent may be assessed on the land in their occupation. The claim is valued at Rs. 79-3-3, namely, Rs. 50 as the market price of the land in suit and Rs. 29-3-3 as the amount of mesne profits. The defendants resist the claim on the two-fold ground that it is barred by limitation, and that they are rent-free holders. They assert that they themselves and their ancestors were in possession from generation to generation for upwards of a century; they also repudiate the entry in the Record of Rights as incorrect and state that they should have been recorded as rent-free holders. The Court of first instance found upon the evidence that the lands had not been proved to be mal, that the plaintiff had never been in possession thereof by actual occupation or receipt of rent and that from the long possession of the defendants and their predecessors, the legitimate inference was that they were rent-free holders. Upon appeal, the District Judge has reversed this decision. He has held that the defendants had failed to rebut the entry in the Record of Rights and that the plaintiff was consequently entitled to rent at the rate claimed by him. On the present appeal, it has been argued, firs that no question arises as to the entry in the Record of Rights which had been repudiated by both the parties in the Court of first instance; secondly, that the claim is barred by limitation; and thirdly, that the defendants hold under a rent-free grant. In our opinion these contentions are well founded.

(2.) As regards the first ground, it may be observed that as the entry was made on the 14th July 1898 before the Bengal Tenancy Act was amended by Act II of 1898 which came into force on the 2nd November 1898, any question as to the correctness of the entry must be decided with reference to Sub-section 2 of Section 109 as it stood before the amendment. That sub-section provides that every undisputed entry in the record shall be presumed to be correct until the contrary is proved. In the case before us, the entry was made after the decision of a dispute, and consequently no presumption of correctness could apply to it. But under Section 9 of Act III of 1898, the decision by the Revenue Officer had the force and effect of a decree of a Civil Court in a suit between the parties and was final. It was obviously open, however, to the parties to agree that the entry was not correct and must be repudiated, though they might not be at one as to what should be substituted in its place. The plaintiff repudiates the entry as fraudulently obtained by the defendants; the defendants repudiate it as erroneously made. In these circumstances, the District Judge should not have held that the burden lay upon the defendants to rebut an entry upon which the plaintiff did not place reliance. The first ground must, therefore, prevail.

(3.) As regards the second ground, the Court of first, instance found that the plaintiff had failed to prove that the land was mal or that he had ever been in possession thereof by actual occupation or by receipt of rent. The District Judge has not reversed this finding, and, on the record as it stands, the finding cannot be successfully assailed. Besides, as the plaintiff comes into Court on the allegation that the defendants had not attorned to him, there is no room for the suggestion that the possession of the defendants was possession on his behalf. The claim is consequently barred by limitation: Dharani Kanta Lahiri v. Gabar Ali Khan 18 Ind. Cas. 17 : C.L.J. 277 : 17 C.W.N. 389 : 13 M.L.T. 185 : (1913) M.W.N. 157 : 15 Bom. L.R. 445 : 35 M.L.J. 95.