Case: Subodh Gopal Bose Vs. Bejoy Kumar Addya &amp; Others

indiscriminately at a time when the distinction between the meaning of the two words was not properly appreciated. That these words were so used in old documents has the support of the decision of the Calcutta High Court in Keshwar Bhagat v. Sheo Prasad (18 Cal LJ 166.).(5) As the property was situate within the Mal assets of touzi No. 6 the defendants must necessarily hold under the plaintiff and his predecessors-in-interest. Although the defendants never pleaded specifically their Nishkar title they had, however, asserted a Lakheraj interest in the property and claimed to have been in possession of the land for more than 12 years to the knowledge and without objection of the proprietors of the touzi. As such their defence amounted to an assertion of rent-free interest acquired by adverse possession.(6) The plaintiff had produced no evidence to challenge the defendants assertion that they were Nishkardars or to establish that they were ordinary tenants.(7) The defendants, who were not assessed to rent by any previous purchaser at a revenue sale, might have acquired by prescription a right to hold rent-free against the former purchaser. The right to hold land-free of rent would be an encumbrance which stood annulled because of the last revenue sale. The right to hold free of rent was gone but what remained with the defendants was a right to hold the land with a liability that rent could be assessed within a period of twelve years.(8) The plaintiff was not entitled to has possession but was only authorised to sue for assessment of rent.7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions. The said exceptions were -(a) tenures and holdings which have been held at the time of the Permanent Settlement either free of rent or at a fixed rent or fixed rate of rent, and(b)(i) tenures and holdings not included in exceptions (a) above made, and(ii) others leases of land whether or not for purpose connected with agriculture or horticulture, existing at the date of issue of the notification for sale of the estate under this Act.8. Under sub-section (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly the rent-free interest of the predecessors-in-interest of the defendants was created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and the plaintiff-appellant has signally failed to discharged the said burden of proof.

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

Explanation:
0[ds]7. In our view, in order to succeed the plaintiff had to allege and prove that the defendants interest was an encumbrance imposed upon the estate after the time of the permanent settlement and was not within the four corners of the exceptions provided. Section 37 of Act XI of 1859 was substituted by a new section by West Bengal Act VII of 1950. As a result of the amendment a purchase of an entire estate in the permanently settled districts of West Bengal sold under the Act of 1859 for the recovery of arrears due on account of the same, was entitled to acquire the estate free from all encumbrance which may have been imposed after the time of the settlement and was also to be entitled to avoid and annul all tenures, holdings and leases with some exceptions.on (2) tenure includes a tenure as defined in the Bengal Tenancy Act, 1885 and holding includes a holding as defined in the said Act. Section 7 of the Act of 1950 provided that if the suit, proceedings etc., could not have been validly instituted, preferred or made had the Act of 1950 been in operation at the date of the institution, it would abate. The High Court examined the question of abatement and held that in 1944 when the suit was filed Section 37 had not been amended and the plaint was a perfectly good plaint. It also opined that if the defendants had raised the question of abatement of the suit before the hearing in 1955 the plaintiff might have applied for an amendment of the plaint by introducing an alternative case of an unprotected encumbrance. As the defendant had not taken any step for a period of four years after the amendment of the statute the High Court did not allow the defendants to raise the question of abatement and further held that the suit could not have been said to have abated on the averments in the plaint.9. Both the courts examined the title set up by the defendants and the finding of the High Court that the defendants were holding as nishkardars although they could not prove that the lands were revenue free, is beyond challenge. The plaintiff made no effort in his plaint to plead that the defendants interest in the property was an encumbrance which had been imposed upon the estate after the time of the Permanent Settlement. The plaint seems to have proceeded on the basis that it was an encumbrance inasmuch as the defendants were described as holding the lands without taking any settlement and as such their interest was liable to annulment in terms of the unamended provisions of Act XI of 1859. After the amendment of the Act in 1950 the plaintiff made no effort to amend his plaint and raise a plea that the interest of the defendants was an encumbrance liable to be annulled as being a tenure or a holding or lease not covered by any of the exceptions provided in the amended section. When exactly theinterest of theof the defendantswas created is not known and at this distance of time it is impossible to ascertain what were the circumstance which caused the original Nishkar grant to be made or when it was made. We therefore adopt the principle enunciated by the Judicial Committee of the Privy Council in Bawa Mangiram Sitaram v. Kasturbhai Nanibhai (49 IA 54, 59 AIR 1922 PC 163.), that the courts will assume that the grant was made as alleged in order to secure as far as possible quiet possession to people who are in apparent lawful holding of an estate. Beyond question the onus was on the plaintiff to establish before the courts that the defendants interest was an encumbrance which was not protected even by the amendment of Section 37 by Act VII of 1950 and thehas signally failed to discharged the said burden of proof.