KANTA MOHAN MALLIK Vs. MAKHAN SANTRA

JUDGEMENT

(1.) This appeal arises out of Suit No. 190 of 1929 which was instituted by seven persons as plaintiffs for assessment of rent. The plaintiffs are the zemindars of Mandalhat Mouza Baranan is one of the mouzas which fall within the geographical limits of the plaintiffs zemindary. Plaintiffs Nos. 1 to 5 have 9 as. 12 gundas share and the Official Trustee of Bengal and Swarnamoyee Dassi the remaining 6 as. 8 gundas. The subject-matter of the suit and appeal are six plots of land, namely Dags Nos. 603) 604, 680, 475, 476 and 479 of the settlement map of the said village. In the Record of Rights prepared under Chap. X of the Bengal Tenancy Act, these Dags have been recorded as not paying rent but liable to pay rent. Accordingly the plaintiffs have instituted this suit for assessment of rent. The defence is that all the plots are niskar, the first three appertaining to a niskar 12 bighas in area and the others to another niskar 2 1/2 bighas in area. Both the lower Courts have found that Dags Nos. 603, 604 and 680 are niskar and the plaintiffs Nos. 1 to 5 who are the appellants to this Court have not pressed their claim with regard to these plots. The decree passed by the lower Appellate Court in respect of these three plots is accordingly maintained.

(2.) Regarding the other three plots the two Courts have differed, the trial Court holding that the plaintiffs Nos. 1 to 5 are entitled to have rent assessed in their 3-5 share and it has accordingly assessed rent; the lower Appellate Court has, however, dismissed the entire suit on the finding that the said lands are also niskar. Mr. Sen on behalf of the plaintiffs Nos. 1 to 5 contends that this finding is erroneous inasmuch as it is based on evidence which is not admissible against the persons he represents.

(3.) It appears that shortly after the final publication of the Record of Rights the defendant in this suit instituted a suit for correction of the entry in the Record of Rights. The suit was numbered 515 of 1923. To this suit the plaintiffs in present suit as well as the Official Trustee and Swarnamoyee Dassi were arrayed as defendants, the last named persons being defendants Nos. 6 and 7 in that suit. There was a compromise between the present defendant and the Official Trustee and Swarnamoyee Dassi and on the basis thereof a decree was passed. Exhibit M is the compromise decree. The suit against plaintiffs Nos. 1-5 of the present suit was withdrawn with liberty to institute another suit. In the solenamah Ex. M, the Official Trustee and Swarnamoyee admitted that they had no "maliki interest" in the lands in suit and that they were niskar lands. The learned Munsif held that Ex. M was admissible in evidence against, and binding on the Official Trustee and Swarnamoyee only but could not be used as evidence against the plaintiffs. He accordingly made bis decree in the terms stated above. There were appeals and cross-objections. The learned Subordinate Judge upheld the trial Court's decree with regard to plots Nos. 603, 604 and 680. With regard to the other plots he discussed the question of onus and came to the conclusion that they were also niskar lands. He supported his findings on three grounds, on each one of which he placed considerable importance. He first of all pointed out that the plaintiffs had withheld the China of 1268, though called for. Secondly he observed that no rent had ever been paid or demanded and that the plaintiffs case of rent being actually realised some years ago was false. Thirdly he remarks that the compromise evidenced by Ex. M was not fraudulent or collusive and that the admission of niskar made therein was not only binding on the Official Assignee and Swarnamoyee but also on the plaintiffs. Mr. Sen on behalf of the appellants contends that Ex. M is inadmissible in evidence against his clients. He also pointed it out to me that the learned Munsif found that apart from Ex. M there was no reliable, evidence to prove niskar. He accordingly asks me to restore the decree of the trial Court. Mr. Mukherjee who appears on behalf of the respondents has urged upon me the following points, namely: (1) that the onus has been misplaced; he says that the landlord does not discharge the initial burden on him by simply showing that the lands claimed as niskar is within the geogpraphical limits of his estate ; (2) that an admission made by a joint tenant is admissible in evidence against bis co-tenant, and (3) that from the fact that no rent had been demanded or paid at any time within living memory, the Court can infer that the lands are niskar, and inasmuch as the learned Subordinate Judge has made the inference in favour of his client from the said fact, as also from other facts, the finding arrived at by him cannot be said to be based on no evidence and, therefore binding on me in Second Appeal.