JYOTI PROSAD GHOSH Vs. KUMUD BEHARI BOSE

JUDGEMENT

(1.) This appeal is on behalf of the plaintiff and it arises out of a suit commenced by him for a declaration that certain entries in the settlement records are incorrect. The facts are rather simple. The plaintiff's case is that he and his cosharers were in possession of the lands in suit which lie outside the ambit of the revenue paying mehal from before the time of the permanent settlement in assertion of their niskar right. Defendants 1 and 2 who are the ijaradars under the proprietor, Raj Krishna Deb, had got certain entries in the Record of Eights made behind the back of the plaintiff, which recorded the plaintiff as tenant under defendants 1 and 2 and the land as liable to be assessed with rent. Plaintiff says that these entries are incorrect and that he is entitled to hold the lands free from payment of any rent or re-venue. The trial Court held on evidence that the lands undoubtedly lay within the ambit of the mal mehal and an old chitta which was produced by the landlord showed that the plaintiff's predecessors were tenants in respect of the lands in suit. The Subordinate Judge held however that there was evidence of long possession on the part of the plaintiff and his predecessors without payment of any rent to the landlord: This would give rise to a presumption of a rent free grant in favour of the plaintiff predecessor. On that view of the case, the plaintiff's suit was decreed. The defendants took an appeal against that decision to the lower Appellate Court and that Court reversed the finding of the Subordinate Judge and came to the conclusion that the evidence was not sufficient to establish any rent free grant in favour of the plaintiff or his predecessors. It is against this decision that this second appeal has been preferred.

(2.) On hearing the learned advocates on both sides, it seems to us that the question is really one of fact. In the first place, it may be noted that the plaintiff did not set up any rent free grant in his plaint. His case was one of revenue free grant and the lands were alleged to be held under a re-venue free title from before the time of the permanent settlement and this averment has been negative by both the Courts below. Not only the Record of Eights are against the plaintiff but the Chitta definitely establishes the relationship of landlord and tenant between the plaintiff and the defendants predecessor. The onus therefore undoubtedly lies on the plaintiff to show that the lands are held under a rent-free grant. It is true DO doubt that from long possession, coupled with non-payment of rent, it is open to the Court to draw an inference that there must have been a rent free grant at the beginning the evidence of which is not forthcoming. But the question is really one of fact and the lower Appellate Court has considered this matter and set out the various circumstances which according to him would negative the inference in the present case. I cannot say that in taking this view it has committed an error of law. The appeal is dismissed with costs. S.K. Ghose, J.

(3.) I agree.