ANANDA LAL CHAKRAVARTY Vs. GIRINDRA NATH CHATTERJEE

JUDGEMENT

(1.) The lands which are the subject matter of these appeals are in two touzies, namely Touzi No. 51 and Touzi No. 47 of the Alipore Collectorate. The appellants before us are the owners of Touzi No. 51 and the plaintiffs-respondents in these appeals are the owners of Touzi No. 47 having purchased the said Touzi at a revenue sale within 12 years of the suit. In the year 1911, there was a petty settlement and all the lands except the lands of Khatian No. 959 and plot No. 1050 of Khatian No. 1024 were recorded in the possession of the defendants as not paying rent but liable to pay rent. The lands of Khatian No. 959 and plot No. 1050 of Khatian No. 1024 however were recorded in the petty settlement as Niskar lands in the possession of the defendants. The finding of the Asistant Settlement Officer in these cases is that the proprietors of Touzi Nos. 51 and 47 knew of the entries made in the petty settlement of 1911. After the petty settlement there was a regular settlement under Ch. 10 Bengal Tenancy Act. The Record of Rights was finally published in the year 1931. The lands which are the subject matter of all these nine appeals were recorded in the possession of the defendants with an entry that no rent was being paid but the persons in possession were liable to pay rent. After the final publication in the year 1931 the proprietors of Touzi Nos. 47 and 51 within whose estates the lands so recorded lie instituted proceedings under Section 105 Bengal Tenancy Act. The defendant raised an issue under Section 105-A that the lands are Niskar.

(2.) The findings of both the Courts below are that the lands are not Niskar, that is to say, the defence raised, namely, that the lands were in fact valid Niskar grants have been negatived as we read the judgments by both the Courts below. The claim however of the appellants before us, who are the proprietors of Touzi No. 51, have been rejected on the ground that they cannot at the date of the suit apply for assessment of rent. We will deal with the grounds given by the learned Special Judge and by the Assistant Settlement Officer in detail hereafter. But the claim of the proprietors of Touzi No, 47 to assess rent has been allowed, the Court holding that they being the revenue purchasers at a revenue sale within 12 years of the suit their claim cannot be defeated on the ground of delay. The position therefore is this that the lands are all joint lands of the aforesaid two Touzies. The proprietors of Touzi No. 47 have got decrees for assessment of rent on the basis that they are not Niskar lands, but the claims of the proprietors of Touzi No. 51 have been dismissed. The learned Assistant Settlement Officer said in his judgment that in the year 1911 the proprietors of Touzi No. 51 knew of the entries made in the Record of Rights in the petty settlement and inasmuch as they had not made any attempt to assess the rent within 12 years of the publication of the Record of Rights of the petty settlement, the defendants who were in possession without payment of rent so long have by adverse assertion acquired the right to hold the land rent free for ever as against them. This argument, says the Assistant Settlement Officer and the Special Judge cannot prevail against the proprietors of Touzi No. 47 because they are recent revenue purchasers.

(3.) The finding of the Assistant Settlement Officer appears to us to mean that it were the entries in the petty settlement record which really affected the proprietors of Touzi No. 51. The Special Judge however does not discuss any question of fact. He simply noted certain rulings, amongst them being the case in Aman Gazi V/s. Birendra Kishore (1912) 16 C W N 929, Birendra Kishore V/s. Roshan Ali (1912) 39 Cal 453 and the judgment of the late Chief Justice in Jnanendra Narayan V/s. Sarada Sundari 1931 Cal 25. He also notes another case, namely, Dhananjoy Manjhi V/s. Upendra Nath Deb 1919 Cal 989. He seems to think that there is a conflict of authorities on the point he had to decide, and was of opinion that he was constrained to follow the latest case, meaning thereby Jnanendra Narayan V/s. Sarada Sundari 1931 Cal 25. He accordingly held that the right of the proprietors of Touzi No. 51 has been barred by limitation. There is no doubt that there is some conflict between the case in Aman Gazi V/s. Birendra Kishore (1912) 16 C W N 929 and the cases in Birendra Kishore V/s. Roshan Ali (1912) 39 Cal 453 and Jnanendra Narayan Vs. Sarada Sundari 1931 Cal 25 referred to above. But that conflict is not at all material for the purpose of the present case.