MAHARAJADHIRAJ SIR KAMESWAR SINGHA Vs. HRIDOY NATH SAHOO

JUDGEMENT

(1.) This is an appeal by the plaintiff and arises out of a suit for the assessment of a fair and equitable rent on a certain tank. Both the Courts below have dismissed the suit; hence this appeal. It appears that an application under Section 105, Bengal Tenancy Act, was filed in connexion with the settlement proceedings in the year 1921 but was subsequently with-drawn and one of the defences raised is that this withdrawal operates as a bar under Section 109, Bengal Tenancy Act. The Proviso to that Section, which was enacted in 1928, was intended to remove that bar, but it is contended on behalf of the defendants that the Proviso cannot have the effect of reviving the right to sue which had previously ceased to exist under the provisions of the Section as it originally stood. Reference has been made to the case in Kandan Majhi V/s. Kulada Prosad Roy (1935) 39 CWN 1040 in which it was held that Section 109 was a bar, but the facts of that case were different from those of the present case inasmuch as the application had been with-drawn and the suit had been instituted before the amendment. In Suprabhat Chandra V/s. Bhupati Bhusan Mondal both the withdrawal of the application and the institution of the suit took place after the amendment and in those circumstances it was held that Section 109 was not a bar. In the case in Sm. Hingul Kumari Dassi V/s. Satia Chandra Pal the withdrawal took place before the amendment and the suit was instituted after the amendment. In these circumstances too it was held that Section 109 was not a bar. The present case in so far as this particular matter is concerned, is on all fours with the case reported in Sm. Hingul Kumari Dassi V/s. Satia Chandra Pal and for the reasons given in the judgment of the learned Judges who heard the appeal in that case, (with which I respectfully agree) I am of opinion that Section 109 does not bar the present suit. The Section was amended before the institution of the suit and under the amended Section the withdrawal of the previous application, even though it took place before the amendment, does not operate as a bar.

(2.) The lower Appellate Court did not record any clear finding on this point, being of opinion that the law applicable to the suit was that embodied in the Transfer of Property Act, and not the Bengal Tenancy Act and although I cannot quite follow the reference made by that Court to a "recur-ring cause of action," the conclusion arrived at is the same, namely that the suit is not barred. I may here remark that the lower Appellate Court was not in my opinion justified in treating the suit as one under the Transfer of Property Act, for both parties came to Court on the footing that the Bengal Tenancy Act was the law to-be applied. If the matter had been in dispute evidence would have had to be gone into with a view to ascertaining whether tenancy had been created for agricultural purposes, and whether the tank was let out for such purposes or for the purpose of rearing fish. No such question was however raised by either party and the suit ought to have to be treated as one under the Bengal Tenancy Act.

(3.) As regards the merits, the question is whether the property is liable to be assessed with rent as alleged by the plaintiff, or whether it is a nishkar property as alleged by the defendants. Both the Courts below have come to the conclusion, though by different processes of reasoning, that the property is nishkar, but in coming to this conclusion they appear to have overlooked the presumption arising out of the Record of Eights. The entry in the Record of Eights was to the effect that the defendants rights in the property were those of inter-mediate permanent tenure-holders and were subject to payment of rent. The onus of proving that the defendants rights to the property are not subject to payment of rent is therefore on the defendants. In the written statement it was alleged that the property in suit had been held rent-free from the time of the defendants grandfather's grand father and that the defendants nishkar rights had been confirmed to their grand-father by a char sanad of the year 1251 B. S. and to the defendants father by another char sanad of the year 1269 B. S. Defendants also relied on the recitals in a decree of the year 1883 (1290 B. S.) and on the recitals in a series of kobalas dating from 1308 to 1338 B. S. On the side of the plaintiff it is contended that the char sanads are forgeries, and that the recitals in the decrees and the kobalas are inadmissible in evidence or at any rate are not binding on the plaintiff. The trial Court found that the char sanads are genuine, and this finding was not specifically reversed by the lower Appellate Court, the finding of the latter Court on the point being to the effect that it might not be safely said that the char sanads were genuine.