KAMALA RANJAN ROY Vs. IFRAN SHEIKH

JUDGEMENT

(1.) Raja Kamala Ranjan Boy, the plaintiff in these suits, purchased Touzi No. 7 of the Murshidabad Collectorate at a revenue sale on 29-3-1930. He instituted these suits in the year 1939. The suits were for assessment of rent in respect of lands which had been recorded in the Record of Hights, finally published under chapter x of the Bengal Tenancy Act as niskar bhogdakhalsutre. The word "niskar" appears in column No. 3 under the heading "Khajana", and "Bhogakhalsutre" appears in column No. 5 of the Khatian, that is to say, in the remarks column, In the plaint he recited his purchase at the revenue sale. In paragraph 2 of the plaint he stated that the entry in the Record of Rights was wrong, that is to say, the lands were not in fact niskar lands and so he was entitled to assess rent. In paragraph 3 of the plaint he stated that even if the lands were niskar, he being the purchaser of an entire estate at a revenue sale is not bound to recognise the niskar rights of the defendants, his prayers were for assessment of rent, for resumption of the lands and settlement of fair and equitable rent and for damages for use and occupation for the three years preceding his suits. Amongst the pleas taken by the defendants there was a plea that those lands of theirs were lakheraj lands and they had lakheraj title from before the Permanent Settlement of Bengal. The Court of first instance dismissed the suits. The lower appellate Court decreed the suits. On further appeal our learned brother Mr. Justice Henderson reversed the judgments of the lower appellate Court-and restored the judgments and decrees of the learned Munsifs. He however gave leave to the plaintiff to prefer appeals under Clause 15 of the Letters Patent. The plaintiff Baja Kamala Ranjan Boy has accordingly preferred these appeals.

(2.) If he had not claimed the rights of a purchaser of an entire estate at a revenue sale the position would have been simpler. The Record of Bights having recorded those lands to be niskar before he could claim assessment of tent, the burden of proof would have been on aim to show that the entry of niskar in the Record of Eights was a wrong entry. No evidence was adduced by him to show that those entries made in the Record of Eights were, wrong. On the other hand, the defendants led evidence hat they and their predecessor had been holding hose lands for a long time without making any payment to the zamindar.

(3.) His further case which is made in paragraph 3 of the plaint, however, requires consideration. We have already stated that in his plaint he claimed the rights of the purchaser of an entire estate at a revenue sale. In Hurryhur Mookhopadhya V/s. Madhab Chunder ( 70-72) 14 M.I.A. 152 which was a case of resumption by the Zemindar, it was laid down that before a zemindar could impose rent on land in respect of which no payments had hitherto been made, the onus is on him in the first instance to prove that the land was his mal land, that is to say, was assessed to revenue at the time when the Permanent Settlement was concluded. A long line of cases followed that decision. In Jugdeo Narain Singh V/s. Baldeo Singh 9 A.I.R. 1922 P.C. 272 the matter was considered again by the Judicial Committee of the Privy Council. The Judicial Committee of the Privy Council after reviewing the evidence in great detail came to the conclusion from that evidence that the Zemindar had proved that the property in question in respect of which ha wanted to assess rent was his mal land. They further laid down that in order to succeed the zamindar had to prove that the land in suit was within his regularly assessed area. They went further to make an observation which apart from the context would have implied that the zamindar could discharge his onus in that respect, if he had simply proved that the land in suit was within the ambit, that is to say, the geographical limits, of his estate. Within a year of the decision of Jagdeo Narain Singh's case the matter was considered by this Court in Sashi Bhusan Hazra V/s. Kazi Abulla . Walmsley and Suhrawardy JJ. pointed out in that case that there was nothing in Jugdeo Narain Singh's case which went against the principle that bad been laid down in Hurryhur Mookhopadhya's case and the view which Walmsley and Mr. Suhrawardy JJ. took in that case has since been followed in many decisions of this Court, some of which, are reported. (See for instance, Makhan Lal V/s. Rup Chand ; and Kanti Mohan Vs. Makhan Santra (35) 89 C.W.N. 277. The question had to be considered by a Division Bench of this Court in a land acquisition proceeding where the person who had purchased the entire estate at a revenue sale claimed the whole of the compensation money awarded. The case is Krishna Kalyani Dasi V/s. Rule Braunfield 3 A.I.R. 1916 Cal. 85. Mr. Braunfield and others, namely, Prince Kamar Kader and the Banerjees were in possession of certain plots of land within the ambit, that is to say, within the geographical limits of the estate which has been purchased at the revenue sale. Krishna Kalyani Dasi, the appellant to this Court, was a purchaser from the persons who had purchased the estate at the revenue sale. Mr. Braunfield and Prince Kamar Kader claimed a portion of the compensation money on the ground that they had never paid rent to the proprietor of the revenue paying estates and that the properties in their possession were lakheraj. Chatterjea J. reviewed the cases including Hurryhur Mookhopadhya V/s. Madhab Chunder ( 70-72) 14 M.I.A. 152. and came to the conclusion that as the purchaser of an entire revenue paying estate acquires the estate as it was at the time of the Permanent Settlement and free from all encumbrances imposed thereafter, and the initial onus would be on the purchaser at the revenue sale to prove that the lands were mal lands of the estate, that is to say, were lands which had been assessed to revenue when the Permanent Settlement was concluded. The two Courts below as also our learned brother Henderson J. have held that the initial onus is on Raja Kamala Ranjan Roy to prove that the lands in suit wore the matlands of his estate, that is to say, the lands which had been assessed to revenue at the time of the Permanent Settlement, which means at the time of Decennial Settlement of 1789, because that settlement was made permanent in 1793. We think that the statement of law thus laid down is correct. In fact Mr. Bose who has appeared before us on behalf of the appellant does not seriously challenge the correctness of the view indicated above.