Case: Monohar Das Mohanta Vs. Charu Chandra Pal &amp; Others

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, 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 revenue free 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 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.6. 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 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 ([1917] L.R. 44 I.A. 147). 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 ([1821] 4 B & Ald. 579), an easement was claimed 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 ([1852] 18 Q.B. 287) where the Court was asked to presume that a company had made a grant of its surplus waters for use by the Duke of Bridge water, 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.7. 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 presumptio juris et de jure, and the Courts were not bound to raise it, if the facts in evidence went againstwhen 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 Lakheraj. 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 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 andare 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 haveare 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 theirhave 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.