DEORAJ SINGH Vs. RAMJIWAN RAI

JUDGEMENT

(1.) These appeals arise out of two suits brought by the appellants to recover damages for the use and occupation of certain trees and for assessment of fair rent thereon. According to the survey khatian the land on which these trees stand are recorded as plaintiffs bakasht; but in the remarks column it is noted that the trees are in the possession of the defendants. There is no entry in the khatian to suggest that the trees are held rent free by the defendants and in fact, Ex. C the decision of the Assistant Settlement Officer upon which the entry in the khatian is based clearly negatives their claim to hold the trees rent free. It is stated in Ex. C that: it is a fact undisputed that mahua phalkar is taken for every mahua tree growing on such groves. The rates are annas 2 for a small tree and annas 4 for a big tree.

(2.) That phalkar is a kind of rent is apparent from the form of receipt prescribed in Schedule 2, Bengal Tenancy Act and also from Section 193 of that Act. Now the question whether the plaintiffs are entitled to recover rent for these trees has been dealt with by the lower appellate Court thus: The question is whether under these circumstances the plaintiffs are entitled to damages for use and occupation or to an assessment of fair rent. The plaintiffs rely on the principle that, mere lapse of time, however great, will not bar the landlords right to collect rent. The defendants rely on their assertion of a hostile title before the settlement officer and contend that the landlords are not entitled to an assessment of rent on the trees for which rent has never been paid ... I think it is a fair inference that the trees were originally planted with the consent of the landlord, but this will not necessarily creat a tenancy in respect of the trees. I think that the fact that no rent has ever been paid for these trees combined with the tenants assertion at the time of survey and the landlord's failure for a period of more than 12 years subsequent to the survey to enforce any right to collect rent for these trees justifies the inference that the terms on which these trees are held do not involve any obligation on the part of the tenants to pay rent. In my opinion, the facts stated by the learned District Judge do not warrant the inference which he has drawn from them, namely, that: the terms on which these trees are held do not involve any obligation on the part of the tenants to pay rent.

(3.) It is clear that the mere fact that the landlord has failed to collect rent for the trees for a number of years cannot deprive him of the right to claim rent if that right is found to exist. The question of limitation again does not arise in these cases, because it has been clearly stated in Ex. C that it was not disputed before the Assistant Settlement Officer that the landlord was entitled to realize phalkar for the mahua trees. It is not disputed that the trees stand on the plaintiffs bakasht land and I do not see how the defendants can resist the plaintiffs claim for assessment of phalkar rent in these circumstances. The Assistant Settlement Officer did not apparently investigate what phalkar was realised for trees other than the mahua trees because he appears to have been under the wrong impression that it was not necessary to record phalkar for the trees in the khatian and that it was a kind of tax levied by the landlord.