DHANI DAS Vs. JAGANNATH SAHU

JUDGEMENT

(1.) This is a second appeal from a decision of the learned District Judge of Cuttack, dated 7-1-1942, reversing a decision of the learned first Munsif of Cuttack, in a proceeding for settlement of fair rent under Section 210 Orissa Tenancy Act. The respondents before us were the petitioners in the Court of first instance. They alleged that a certain piece of land had been settled with the appellants for the purpose of growing an orchard. According to the respondents the original agreement was that no rent would be payable till the trees matured. The respondents case was that the trees had since matured and, therefore, the appellants were liable to pay a fair rent for the lands. The case of the appellants was that the lands constituted a rent free tenancy. In three successive settlements the lands had been recorded as "niskar sthitiban," namely, as a rent-free tenancy. The appellants, therefore, contended that no rent was payable for the lands in question. The case of the appellants further was that the lands had been given to them free of rent in lieu of services rendered. The learned Munsif who dealt with the application in the first instance held in favour of the appellants. He came to the finding that the entry in the record-of-rights was in favour of the appellants and the respondents had failed to rebut the presumption of accuracy attaching to that entry. On that finding, the learned Munsif dismissed the application for a settlement of fair rent. The learned District Judge on appeal reversed the decision of the learned Munsif holding that it was for the appellants to establish that they had been relieved of the obligation to pay rent to the landlords.

(2.) On behalf of the appellants, it has been contended before us that the learned District Judge has taken a wrong view of the law. The learned District Judge has relied on the decision of their Lordships of the Judicial Committee in Naram Singh V/s. Bal Deo Singh A I.R. 1922 P.C. 272 where their Lordships have observed as follows: Once, however, the landlord has proved that the land which is sought to be held rent-free lies within his regularly assessed estate or mahal, the onus is shifted. In the present case, the lands in dispute lie within the ambit of the estate, which admittedly belongs to the plaintiffs and the pro forma defendants and for which they pay the revenue assessed on the mahal. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of this obligation, either by contract or by some old grant recognised by Government. These observations of their Lordships have been considered and explained in several Bench decisions of this Court. In Stonewigg V/s. Kameshwar Narayan Singh A.I.R. 1923 Pat. 340, it has been observed as follows: It will appear that the Judicial Committee did rely upon some evidence which showed clearly that there was a very careful enquiry made by the Government in the course of certain resumption proceedings which established that there was no one upon the lands with a rent-free title; and apart from any other consideration it does seem to me that there is a distinction between a case where a person claims a rent-free title and a case where a person claims a title as an occupancy tenant.

(3.) In Jodha Sahu V/s. Tirbena Sahu A.I.R. 1929 Pat. 748 it has been held that where a tenancy is recorded in the survey records-of-rights as a rent-free tenancy, it must be presumed to be rent-free, even though it is shown that the land in dispute lies within the zamindari of the landlord. The decision of their Lordships in Naram Singh V/s. Bal Deo Singh A I.R. 1922 P.C. 272 was again considered by this Court and it was observed that the decision of their Lordships of the Judicial Committee did not support the extreme proposition that where the record-of- rights is in favour of the tenant, it is still necessary for the tenant to establish by clear evidence that the entry in the record-of-rights is correct. The question was then considered in Kameshwar Singh V/s. Sakhawat Ali where the decision in Naram Singh V/s. Bal Deo Singh A I.R. 1922 P.C. 272 was applied. This decision came to be considered in Rashik Lal V/s. Surpat Singh , and the following observations were made: The decision of the Privy Council had been interpreted in the two cases reported in 11 P.L.T., and it was in the circumstances, therefore, desirable that the interpretation placed by this Court upon that Privy Council decision should be followed unless a larger Bench should dissent from that interpretation. Learned Counsel for respondents has placed reliance on the very decision regarding which the aforesaid remarks were made in Rashik Lal Sahu's case. In Surpat Singh V/s. Bhupendra Narayan , the decision in 3 P.L.T. 605 has been considered in great detail. It has been observed there that their Lordships of the Judicial Committee were dealing with the case of a malikanadar. A malikanadar claims a title independent of the landlord, as the malikana had its origin at the time of the Permanent Settlement. Either he claims that the land was excluded from the Permanent Settlement or that by an arrangement between the Government and the man with whom the Permanent Settlement was made a certain land was set apart for the ex-proprietor as malikana. It was then observed that in such cases the production of evidence to show that the land was in fact included in the Permanent Settlement, would obviously rebut the entry of malikana in the record-of rights; but in other cases where the assessment of land revenue has no connection with a land being rent-free, the facts found by the settlement authorities to have existed at the time of the Cadastral Survey could not possibly be rebutted by proof of facts which existed at the time of the Permanent Settlement. It was further stated that the observations of their Lordships of the Judicial Committee have to be read as referring to the entry in the particular case, and their Lordships did not lay down any sweeping proposition of law that there would be no presumption of accuracy attaching to an entry in the record-of-rights in respect of a rent-free tenancy, when the land was shown to be within the Zamindari of the landlord. The matter was again considered in to which I have already made a reference, and it was again observed that their Lordships of the Judicial Committee did not lay down the broad proposition that if it could be shown that the land in suit was part of the landlord's proprietary right, the presumption which the Courts are bound under the Bengal Tenancy Act to attach to the entry in the record was rebutted.