PETITIONER:
SRI MONOHAR DAS MOHANTA
Vs.
RESPONDENT:
CHARU CHANDRA PAL AND OTHERS.
DATE OF JUDGMENT:
20/12/1954
BENCH:
AIYYAR, T.L. VENKATARAMA
BENCH:
AIYYAR, T.L. VENKATARAMA
MAHAJAN, MEHAR CHAND (CJ)
BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
CITATION:
1955 AIR 228 1955 SCR (1)1168
ACT:
Lost Grant-Presumption of-When such presumption does or does
not arise-Legality of lost grant of Niskar from Mohunt-Plead-
ing and proof-Findings of fact.
HEADNOTE:
A presumption of a lost grant arises in favour of a person
who does not claim adversely to the owner but who on the
other hand proves ancient and continued possession in
assertion of a title derived from the owner without any
challenge and such possession and assertion cannot be
accounted for except by referring to a legal origin of the
grant claimed.
But the presumption of a lost grant is not an irrebuttable
presumption of law and the court cannot presume a grant
where it is convinced of its non-existence by reason of a
legal impediment, as where the presumption of a lost grant
is claimed by a fluctuating body of persons. Similarly a
presumption of a lost grant cannot arise when there is no
person capable of making such a grant or if the grant
pleaded is illegal or beyond the powers of the grantor.
A presumption of a lost grant by way of Niskar cannot be im-
puted to the Mohunt of an Asthal inasmuch as he is legally
incompetent to make any Niskar grant.
When a defendant who denies the title of the plaintiff in
respect of any land, fails in that plea, he cannot fall back
on the presumption of a lost grant from the very person
whose title he has denied.
Findings of fact arrived at by courts should not be vague.
Attorney-General v. Simpson ([1901] 2 Ch. D. 671), Raja
Braja Sunder Deb v. Moni Behara and others ( [1951] S.C.R.
431), Barker v. Richardson ( [1821] 4 B. & Ald. 579),
The Rochdale Canal Com-
1169
pany v. Radcliffe ([1852] IS Q.B. 287), and Palaniappa
Chetty v. Sreenath Devasikamony ( [1917] L.R. 44 I.A. 147),
referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 109 to 115
of 1952.
Appeals from the Judgment and Decree dated the 9th day of
March 1950 of the High Court of Judicature at Calcutta in
Appeal from Appellate Decree Nos. 1841-1847 of 1945 arising
out of the Decrees dated the 16th day of September 1944 of
Munsiff 3rd Court, Burdwan.
P. K. Chatterjee, for the appellant.
S. C. Das Gupta, (Sukumar Ghose, with him), for the
respondents in Civil Appeals Nos. 109 to 112 of 1952 and
respondents 1, 2(a), 3 and 4 in Civil Appeal No. 113 of 1952
and respondents 1 and 3 in Civil Appeals Nos. 114 and 115 of
1952.
1954. December 20. The Judgment of the Court was delivered
by
VENKATARAMA AYYAR J.-The appellant is the Mahant of a
religious institution known as Rajgunj Asthal in Burdwan,
and the suits out of which the present appeals arise, were
instituted by him to recover possession of various plots of
land in the occupation of the defendants, or in the
alternative, for assessment of fair and equitable rent. It
was alleged in the plaints that the suit lands were
comprised in Mouza Nala forming part of the permanently
settled estate of Burdwan, and were Mal lands assessed to
revenue, and that more than 200 years previously there had
been a permanent Mokarrari grant of those lands by the
Maharaja of Burdwan to the Rajgunj Asthal; that in the
record of rights published during the settlement in 1931
they were erroneously described as rent-free, and that on
the strength of that entry the defendants were refusing to
surrender possession of the lands to the plaintiff. It was
accordingly prayed that a decree might be passed for eject-
ment of the defendants, or in the alternative, for
assessment of a fair and equitable rent.
1170
The defendants contested the suits, and pleaded that the
lands were not Mal lands comprised within Mouza Nala, that
they did not form part of the zamindari of Burdwan but had
been granted as Lakheraj to their predecessors-in-title long
prior to the permanent settlement, that neither the Maharaja
of Burdwan nor the plaintiff claiming under him had any
title to them, and that the entry in the record of rights in
1931 was correct. The defendants also pleaded that as they
and their predecessors had been in possession of the lands
for over 200 years under assertion of an adverse title, the
claim of the plaintiff was barred by limitation.
The District Munsif of Burdwan who tried the suits held that
the lands were included in Mouza Nala in Thouzi No. 1, which
was comprised in the permanently settled estate of Burdwan,
that their income was taken into account in fixing the
revenue payable by. the estate., that they had been granted
in permanent Mokarrari by the then Maharaja of Burdwan to
the Rajgunj Asthal, and that the plea of the defendants that
they held them under a Lakheraj grant made prior to the
permanent settlement was not true. He also held that the
documents on which the defendants claimed to have dealt with
the properties as owners under assertion of an adverse title
were not proved to relate to the suit lands, that the
relationship subsisting between the parties was one of
landlord and tenant, that as there had been no determination
of tenancy, no decree in ejectment could be passed but, that
the plaintiff was entitled to fair rent, and that the claim
was not barred by reason of article 131 of the Limitation
Act. In the result, he granted decrees for rent.
The defendants appealed against this decision to the Court
of the District Judge of Burdwan, who agreed with the
District Munsif that the suit lands were Mal lands within
the zamindari of Burdwan, and that they had been settled on
the plaintiff by the Maharaja of Burdwan. But he held that
as the defendants and their predecessors had been in posses-
sion of the lands for a very long time without
1171
payment of rent, a presumption of a lost grant could be made
in their favour. He accordingly dismissed the suits.
Against this decision, the plaintiff appealed to the High
Court, which agreeing with the District Judge on both the
points dismissed the appeals, but granted a certificate
under article 133(1) (c), as it was of the opinion that the
question of lost grant raised an issue of great importance.
The substantial question that arises for our decision is
whether on the materials on record the Courts below were
right in presuming a lost grant in favour of the defendants.
The grounds on which the District Judge made that
presumption are that the defendants, and their predecessors
had been in possession of the lands for a long time without
payment of rent, that they had been asserting continuously
that they were holding under a Lakheraj grant, and that they
did so to the knowledge of the plaintiff. It must be
mentioned that in dealing with this question the District
Munsif held that the documents put forward by the defendants
as containing assertions by them that they held under a
Lakheraj grant were not shown to relate to the suit lands.
The District Judge differed from this finding, and observed:
“………….. there are some unmistakable names of tanks,
etc., by which some of the lands of these documents at least
can be connected with the suit lands ………… These
documents relating to these holdings cannot, therefore, be
discarded as unconnected with the suit lands”.
These observations are vague, and do not lead anywhere, and
cannot be taken as a finding on the question. No attempt
was made before us on behalf of the respondents to connect
any of the documents with the lands held by them. In the
circumstances, the finding of the District Munsif on the
point must be accepted.
On the further question whether the plaintiff had knowledge
of the assertion of any hostile title by the defendants, the
learned District Judge answered it in the affirmative
relying on Exhibits A to A-24, 150
1172
which are receipts for realisations of cesses from the
defendants. But the High Court held-and its finding has not
been attacked before us-that there was no proof of the
contents of these documents, and that they must therefore be
excluded. The position thus is that there is no proof that
the respondents set up any adverse title prior to 1931, much
less that the plaintiff bad knowledge of the same. We are
therefore left with a bare finding that the defendants and
their predecessors in title had been in possession for a
long period without payment of rent; but here again, there
is no finding as to the precise length of time during which
they held possession. The question is whether in this
situation a presumption of lost grant could be made.
The circumstances and conditions under which a presumption
of lost grant could be made are well settled. When a person
was found in possession and enjoyment of land for a
considerable period of time under an assertion of title
without challenge, Courts in England were inclined to
ascribe a legal origin to such possession, and when on the
facts a title by prescription could not be sustained, it was
held that a presumption could be made that the possession
was referable to a grant by the owner entitled to the land,
but that such grant had been lost. It was a presumption
made for securing ancient and continued possession, which
could not otherwise be reasonably accounted for. But it was
not a presumption juris et de jure, and the Courts were not
bound to raise it, if the facts in evidence went against it.
“It cannot be the duty of a Judge to presume a grant of the
non-existence of which he is convinced” observed Farwell, J.
in Attorney-General v. Simpson(1). So also the presumption
was not made if there was any legal impediment to the making
of it. Thus, it has been held that it could not be made, if
there was no person competent to be the recipient of such a
grant, as where the right is claimed by a fluctuating body
of persons. That was held in Raja Braja Sundar Deb v. Moni
Behara and others(1). There will likewise be no scope for
this
(1) [1901] 2 Ch. D. 671, 698.
(2) [1951] S.C R. 431, 416.
1173
presumption, if there is no person capable of making a
grant: (Vide Halsbury’s Laws of England, Vol. IV, page 574,
para 1074); or if the grant would have been illegal and
beyond the powers of the grantor. [Vide Barker v.
Richardson(1) and The Rochdale Canal Company v.
Radcliffe(1)].
In the light of these principles, it has now to be seen
whether on the facts found a lost grant could be presumed in
favour of the defendants. The finding is, as already
stated, that they were in possession without payment of rent
for a considerable length of time, but it has not been
established precisely for how long. In their written
statements they pleaded that they bad been holding under a
Lakheraj grant made prior to the permanent settlement, and
had been in possession by virtue of that title for over 200
years. On this plea, the grant to be presumed should have
been made 200 years prior to the suit. There is an obvious
difficulty in the way of presuming such a grant on the facts
of this case. There was a permanent settlement of the
zamindari of Burdwan in 1793, and it has been found by all
the Courts that in that settlement the suit lands were
included as part of the Mal or assessed lands of the estate.
Now, the scheme of the settlement of the estates was to fix
the revenue payable thereon on the basis of the income which
the properties were estimated to yield, and Regulation No. 8
of 1793 contains elaborate provisions as to how the several
kinds of property are to be dealt with. Section 36 of the
Regulation provides that “the assessment is also to be fixed
exclusive and independent of all existing lakheraje lands,
whether exempted from the kheraje (or public revenue) with
or without due authority”. Therefore, when it is shown that
lands in an estate are assessed, it must follow that they
could not have been held on the date of the permanent
settlement as Lakberaj. It would be inconsistent with the
scheme of the settlement and section 36 of Regulation No. 8
of 1793 to hold that the assessed or Mal lands in an estate
could have been held on an anterior Lakheraj grant. It was
for this
(1) [1821] 4 B. & Ald. 579.
(2) [18521 18 Q. B. 287.
1174
reason that the defendants pleaded that the suit lands were
not comprised in the Mal lands of the zamindari of Burdwan.
But that plea has been negatived, and it has been found that
they are part of the Mal lands within the zamindari assessed
to revenue, and in view of that finding there is no scope
for the presumption of a lost grant.
Learned counsel for the respondents relied strongly on the
record of rights made in 1931 with reference to the suit
lands as supporting his contention. The entry in question
describes the lands as "Bhog Dakhal Sutre Niskar", and has
been translated as "without rent by virtue of possession and
enjoyment". The plaintiff attacked this entry as made at
the instance of the defendants acting in collusion with one
of his agents. The Courts below, however, have held that
had not been established, and therefore the entry must be
taken as properly made. The respondents contended that a
strong presumption should be made in favour of the
correctness of the entry, because it was made in the
ordinary course of business, and that it was sufficient to
sustain a presumption of lost grant. Giving the entry its
full value, does the word "Niskar" import a rent-free grant?
Rule 37 of the Technical Rules and Instructions issued by
the Settlement Department for observance by the settlement
authorities provides that if property is found in the
possession of a person who is not actually paying rent for
it should be described as "Niskar", and if no sanad or title
deed is produced by the occupant showing a rent-free title,
the words "Bhog Dakhal Sutre" (by virtue of enjoyment and
possession) should be added. In the written statement it
was stated that (as the defendants could not produce any
'revenuefree grant' they (Settlement Officers) recorded
Niskar Raiyati right in a general way". Reading Rule 37
along with the written statement it is clear that the entry
in the record of rights in 1931 was made in compliance with
that Rule, and that what it imports is not that there was a
rent-free grant, but that the person in possession was not
actually paying rent. Whatever weight might attach to the
word "Niskar" in a
1175
record of rights in other context, where the question is
whether a presumption of a lost pre-settlement Lakheraj
grant could be made, the inference to be drawn from that
word cannot outweigh the effect of the non-exclusion of the
lands from the Mal or the regularly assessed estate. We are
therefore of opinion that a presumption of lost grant cannot
be founded on the entry in the record of rights.
There are also other difficulties in the way of presuming a
lost grant in favour of the predecessors of the defendants.
The suit properties formed part of Mauza Nala within the
zamindari of Burdwan, and if a grant had been made in favour
of the predecessors of the defendants, it must have been
made by the Maharaja of Burdwan or by the Rajgunj Asthal.
But the defendants have in their written statements denied
the title of both the Maharaja and the Asthal, and having
failed in that plea, cannot fall back on a presumption of
lost grant by the very persons, whose title they have
repudiated.
This does not exhaust all the difficulties of the
defendants. According to the District Judge, the suit
properties had been settled on the Rajgunj Asthal more than
200 years ago. Therefore, the grant to be presumed must
have been made by the Mahant of Asthal in favour of the
predecessors of the defendants. But before raising such a
presumption, it must be established that the grant was one
which could have legally been made by him. It is well
settled that it is beyond the powers of a manager of a
religious institution to grant perpetual lease binding the
institution for all times to a fixed rent, unless there is a
compelling necessity or benefit therefor. Vide Palaniappa
Chetty v. Sreenath Devasikamony(1). And what is pleaded in
the present case is not even so much as a permanent lease,
because there is neither premium paid nor rent reserved but
a Lakheraj grant unsupported by any consideration. That
would clearly be beyond the powers of a Mahant, and no
presumption of a lost grant could be made in respect
thereto. In Barker v. Richardson(2) , an easement was
claimed
(1) [1917] L.R. 44 I.A. 147. (2) [1821] 4 B. & Ald. 579,
1176
both on the ground of prescription and presumption of a lost
grant by a rector. In negativing this claim, Abbot, C. J.
observed that a grant could not be presumed, because the
rector had no right to bind his successor by it, and it
would therefore be invalid. In The Rochdale Canal Company
v. Radcliffe(1) where the Court was asked to presume that a
company had made a grant of its surplus waters for use by
the Duke of Bridgewater, Lord Campbell, C. J. observed that
“if they had made a grant of the water in the terms of this
plea, such a grant would have been ultra vires and bad”, and
on that ground, he refused to raise the presumption.
We are accordingly of opinion that on the facts found, no
presumption of a lost grant could be made in favour of the
defendants, and that the plaintiff was entitled to
assessment of fair and equitable rent on the holdings in
their possession.
Learned counsel for the respondents also raised the plea of
limitation. The Courts below have held that the suits were
within time under article 131 of the Limitation Act, as the
final settlement of records was published on 16-6-1931, and
the present suits were filed within 12 years thereof for
establishing the right of the institution to assessment of
rent. It was observed by the learned Judges of the High
Court who heard the application for leave to appeal to this
Court that it was not suggested before them that the
decision on the question of limitation was erroneous. The
contention that is now pressed before us is that in the view
that there was no rent-free grant in favour of the
predecessors of the defendants they were all trespassers,
and that the title of the Asthal had become extinguished by
adverse possession for long over the statutory period. But
the question of adverse possession was not made the subject
of an issue, and there is no discussion of it in the
judgments of the Courts below. We have already held that
the documents relied on by the defendants as containing
assertions that they held under a Lakheraj grant are not
shown to relate to the suit lands. We
(1) [1852] 18 Q.B. 287,
1177
have also held that there is no proof that the defendants
claimed to hold under a rent-free grant to the knowledge of
the plaintiff prior to 1931, and that what all has been
established by them is non-payment of rent for a
considerable but unascertained period of time. That, in
itself, is not sufficient to make their possession adverse.
It was only in 1931 that the defendants could be said
clearly to have asserted a hostile title, and the suits are
within time from that date. There is no substance in this
plea, which is accordingly rejected.
In the result, the appeals are allowed, the decrees ,of the
District Court and of the High Court are set aside, and
those of the District Munsif restored with costs in this
Court and in the two Courts below. The decrees of the
District Munsif will stand as regards costs in that Court.
Appeals allowed.