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
section C Das Gupta Sukumar Ghose with him for the respondents in Civil Appeals Nos
109 to 112 of 1952 and respondents 1 2a 3 and 4 in Civil Appeal No 113 of 1952 and respondents 1 and 3 in Civil Appeals Nos 114 and 115 of 1952
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 1331 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 vs Simpson1
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 vs Moni Behara and others1
There will likewise be no scope for this 1  698
2   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 vs Richardson1 and The Rochdale Canal Company vs Radcliffe1
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 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 vs Sreenath Devasikamony1
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 vs Richardson2  an easement was claimed 1 1917 LR 44 IA 147
2  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 vs Radcliffe1 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   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


Summary:
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 vs Simpson 1901  Raja Braja Sunder Deb vs Moni Behara and others  1951 SCR 431 Barker vs Richardson   The Rochdale Canal Com 1169 pany vs Radcliffe 1852 IS QB 287 and Palaniappa Chetty vs Sreenath Devasikamony  1917 LR 44 IA 147 referred to