Judgement

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 Burdran, 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 ejectment of the defendants, or in the alternative, for assessment of a fair and equitable rent.

2. 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.

3. 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.

4. 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 possession of the lands for a very long time without 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.

5. 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 und