The burden of proof for establishing excess land for claiming additional rent lies with the landlord, and the standard of measurement at the time of tenancy inception must be established to claim additional rent for excess area.

JUDGMENT

Mitter, J. - This is an appeal u/s 15, Letters Patent, from a judgment of my learned brother S.K. Ghose, J. The suit in which this appeal arises was brought by the plaintiff who is the appellant before us for additional rent for excess area. The Court of first instance dismissed the suit. The lower appellate Court gave a modified decree to the plaintiff granting additional rent for an excess of 70 bighas odd only. On appeal to this Court, S.K. Ghose, J., has allowed the appeal and has restored the decree of the Munsiff, dismissing the plaintiff's suit. Hence this present appeal u/s 15, Letters Patent.

2. The plaintiff's case is that he has purchased the Putni and Dar Putni rights of mouza Chatiani in the year 1334 B.S. The defendants are said to be the holders of a jote bearing rent of Rs. 34-10-8 per year. The case made by the plaintiff in the plaint further is that this rent was assessed with reference to an area of 78 bighas odd without specific boundaries on a standard of 18 inches to a cubit and that the jama was not a mokarary jama. It was further stated that according to the finally published record-of-rights, which records were published in 1925, the defendants are possessing an area of 180 bighas, and it is said that the defendants are liable to additional rent for excess area of 102 bighas. On this basis the plaintiff claims a sum of Rs. 126 odd per year. The defence of the defendants, in substance, is that the holding is a mokarary holding which has been held by them from very ancient times, even from before the permanent settlement of 1719 and that the existing rent is a consolidated rent and was not with reference to measurement of any particular area. It is further stated that measurement, if any, was made according to a standard of 26 inches per cubit and according to such standard of measurement the area would be 109 bighas odd. It is further said that there was no encroachment on the lands of the zamindar or the patnidars. The burden of proving that the defendants are holding excess land for which they are liable to an a additional rant is undoubtedly in the first instance on the landlord.

3. The origin of the tenancy is lost in antiquity, and it is very difficult at this distance of time to give evidence to show as to what was the area which was actually settled with the defendants. It is said on behalf of the plaintiff that there is an admission by the defendants that there was a potta in respect of this tenancy, that, according to the case of the defendants, that potta was stolen and it would be presumed, it is said, that the potta, if produced, would have gone against the defendants. The Subordinate Judge has relied on an admission of defendant 1 in certain previous depositions, wherein it is stated that the settlement of the jote was with reference to area, and it is further stated that the area was 110 bighas measured by the standard of measurement of 26 inches to a cubit. The Subordinate Judge also rested his decision on his view with regard to the standard measurement, which he held to be 18 inches to a cubit which is also the present standard of measurement on the basis of which lands have been surveyed by the Survey Officers in preparing records-of-rights; and on this basis, accepting the original holding to be 109 bighas, as admitted by the defendants, he has granted an enhancement in respect of the excess area, namely, 180 bighas. It was complained before S.K. Ghose, J., that the finding about this standard of measurement was based on no evidence and was therefore liable to be challenged in second appeal. That contention was accepted by S.K. Ghose, J. Before us it has been contended by Dr. Basak who appears for the appellant that the learned Judge of this Court was bound to accept the finding of fact on the question of standard of measurement, arrived at by the lower appellate Court. Undoubtedly, a finding of fact arrived at by a Court of fact is final, if such finding is based on evidence. I