1. These three appeals arise out of three suits which were tried together at the instance of the parties. The Plaintiffs who are the Appellants before me sued for assessment of rent of certain lands and for recovery of arrears of rent for four years as compensation for use and occupation of the lands by the Defendants. The Plain-tiffs are purchasers at a mortgage sale of the interest of the zemindar in whose estate, according to them, the disputed lands are situated. They based their case mainly on the record-of-rights in which the Defendants were recorded as tenure-holders in respect of these lands and the lands were described as liable to assessment of rent. The suits were resisted by the Defendants. The written statements show that their case was that the lands were the lakheraj lands of a deity Sri Sri Lakshmi Narayan Jew Thakur, and that the Plaintiffs or their predecessors were consequently not entitled to rent. They pleaded that they had held these lands for a long series of years extending over more than 150 years without payment of rent. Both the Courts below gave effect to the contentions of the Defendants and dismissed the suits. Hence the present appeals.

2. In support of their case the Plaintiffs practically relied on the record-of-rights, whereas the Defendants produced on their side an old document which has been referred to in the judgments of the Courts below as a “Sanad,” bearing date the 16th June, 1794. The Defendants also relied on a copy of a plaint and a summons as well as on certain receipts granted by a pattanidar of the Mahal now held by the Plaintiffs. Apart from the documentary evidence there was oral evidence on either side, but there can be little doubt that the documentary evidence is the more important.

3. Looking at the judgments, it seems to me that neither of the Courts below had a very clear appreciation of the real defence which was set up. The learned Advocate appearing for the Defendants in this Court made it quite clear that the main case of his clients Was that the disputed lands were lakheraj or revenue-free lands; in other words that they were excluded from the regularly assessed estate of the Plaintiffs. The claim of a revenue-free title is obviously different from a claim that the lands are held rent-free. The latter proceeds on the assumption that the lands are included within the Plaintiffs' estate, but the Defendants are still entitled to hold them without payment of rent to the zemindar.

4. It is quite clear that this is an important distinction which is bound to have a material bearing on the case. For one thing, it will determine the question of the onus of proof. If the lands are claimed to be revenue-free, that is, lakheraj in the strict sense of the word, it will be for the Plaintiffs to show before they can succeed in their suits that the lands are comprised within their estate. On the other hand, if the defence is only a plea of rent-free title, the onus of proof will lie on the Defendants, who will have to prove when and how they or their predecessors relieved themselves of the obligation to pay rent. These propositions are now well settled. It was in fact laid down as far back as 1871 by the Judicial Committee in the case of Hurryhur Mookkopadhya v. Madub Chunder Baboo(1) and that case has now gathered round it a respectable body of case law,—that where the Plaintiff's case is that the lands in suit formed part of his mal lands which the Defendant claims as lakheraj, the Plaintiff is bound to give some evidence that the land was once mal; once the Plaintiff has primâ facie proved his case, the burden of proof is shifted on the Defendant.

5. As regards the other proposition, reference need be made only to a comparatively recent decision of the Judicial Committee in the case of Jagdeo Narain Singh v. Baldeo Singh(2), where it was held that once a landlord has proved that land, which is claimed tc be held rent-free, is within his regularly settled Mahal, it lies upon those who so claim to show that they have been relieved of the obligation to pay rent, either by contract, or by some old grant recognised by the landlord.

6. There can be no doubt that it is open to the Defendants in this case to repel the Plaintiffs' claim either by showing that the lands are lakheraj, or by showing that though they are part of the Plaintiffs' Mahal, the Defendants are entitled to hold them free of rent. But, as I have already explained, the burden of proof will vary according as the one line of defence is set up or the other.

7. On behalf of the Defendants, as already pointed out, it is urged that their case has all along been that the lands were lakheraj. The Plaintiffs are quite willing to accept that position. And so accepting it, they would rely on the entry in the record-of-lights, which is in their favour, as sufficient to discharge the onus of proof which would lie on them. The Plaintiffs contend that the record-of-rights is evidence to show that the lands formed part of the Plaintiffs' estate. It is pointed out that the Defendants are recorded therein as tenure-holders under the Plaintiffs' predecessors. They maintain that to establish their case it is not necessary to prove actual realisation of rent from the Defendants; neither can the Defendants rebut the presumption arising from the record-of-rights merely by showing non-payment of rent for any length of time. The Plaintiffs conceded that if the Defendants could produce any evidence like an extract from the Collectorate Register showing that these lands were entered as revenue-free, that would conclude the matter. The Defendants claim that the document which has been referred to as a Sanad is really an official record of that character. That document is in Persian, and a Bengali translation of it was put in and is on the record. But it is not clear whether it is an extract from a Collectorate Register, or merely purports to be a copy of an order for the issue of a confirmatory grant to one Maharam Bhanja, who, it has been found by the Courts, is the predecessor-in-interest of the present Defendants. This document is certainly of very great importance from the Defendants' point of view and in order to decide this appeal on the basis of it, I consider it to be essential to have more information than is available as to its true character. It was produced no doubt from the custody of the Collector, but the record-keeper who produced it did not say whether it purported to be an extract from any official register. It does not bear the signature of any official. In fact it seems to me that in the absence of any signature or of the name of any person by whom the document purports to be written, it is not possible to admit it in evidence as an ancient document under the provisions of sec. 90 of the Indian Evidence Act. Sec. 90 says that where a document purporting to be 30 years old is produced from proper custody, the Court may presume that the signature and any other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the person by whom it purports to be duly executed and attested. The presumption referred to in this section is of a limited character and applies only to the signature or handwriting. Where, however, there are no names of executant, scribe or witness, I do not see how the section can avail to prove the document, merely because it happens to be more than 30 years old or is produced from custody which the Court may consider proper.

8. The Defendants appreciate this difficulty and do not seek to justify the admissibility of this exhibit by reference to the provisions of sec. 90. They maintain that it is a public document and rely on the combined effect of secs. 35 and 74 of the Indian Evidence Act for the purpose of proving it. This, however, presupposes that the document which has been produced is really an extract from a register which the Collector maintained under the Regulations then in force; but, as I have said, I find it difficult on the record as it stands, to say whether it is really a document of that description. As regards the other documentary evidence on which the Defendants rely, namely, the plaint and the summons which relate to the same suit as well as the receipts, it appears that these are of an equivocal character. Assuming that these are all admissible in evidence, I am still not sure that they can be regarded as sufficient or convincing evidence of the revenue-free character of the disputed lands. Putting aside for the moment the Plaintiffs' contention that the lands referred to in these documents have not been shown to be identical with those which are the subject-matter of dispute, it is still doubtful, so far as the statements in the plaint are concerned, whether they really support a case consistent with that which the Defendants are now making. It is true that in one paragraph of the plaint the lands are referred to as lakheraj, but the whole substance of the claim appears to be based on the supposition that the lands form part of the zemindary and do not constitute an independent revenue-free estate. The plaint is a plaint in a suit by a patnidar who is claiming to recover from the Defendants certain cesses and embankment charges. If the lands were revenue-free, such cesses and embankment charges would be ordinarily payable by the holder of such lands direct to the Collector, and neither the zemindar nor the patnidar of the mahal within the local boundaries of which such lands may be situated will have a legal right to recover these dues from the holder. The learned Advocate for the Defendants has referred me to certain special provisions of the Cess Act regarding the District of Midnapur where the suit lands are situated, which might seem to confer on a person in the position of the Plaintiff in that suit the right to collect such dues from the grantee of revenue-free lands, Even so, it does not appear that the Courts below considered the document from this point of view in order to see whether it really made a case inconsistent with that based on the, Sanad. As for the receipts, they are only in respect of payments which the Defendants' predecessors are supposed to have made to the patnidar on account of such cesses and embankment charges.

9. From one point of view, these documents, instead of rebutting the case of the Plaintiffs, would rather go to support it. Mr. Das, on behalf of the Plaintiffs, in fact, relies on them for the purpose of making out that on the Defendants' own showing the disputed lands are included in the Plaintiffs' estate. If that be so, as I have already explained, it will be for the Defendants to prove the circumstances under which they were discharged of the obligation to pay rent to the zemindar.

10. The only evidence which has been adduced on this point, apart from the documents already referred to, is as regards non-payment of rent, but this carries the Defendants nowhere on this part of their case.

11. I cannot help thinking that much of the unsatisfactory state of the evidence is due to insufficient appreciation of the distinction between a plea of revenue-free title and a plea of rent-free title. The judgments of the Courts below also suffer from a certain infirmity for not having kept this distinction in view. I think that in the circumstance of the case and for the ends of justice, the suits should be retried on a proper basis and after recasting the issues; but, on the pleadings as they stand, it will be for the Defendants to make up their mind finally whether they will adhere solely to the ease that the lands are revenue-free, or, if the written statements so permit, whether they will also make a case in the alternative that even if the lands are comprised in the Plaintiffs' estate, the Defendants have acquired the right to hold them free from payment of rent, either by reason of any grant, actual or presumed, or by adverse possession or otherwise. The parties will be at liberty to adduce further evidence. It is only fair that this should be allowed. Mr. Das, for instance, stated that his clients were all along under the impression that the case made by the Defendants at the trial Court was on the basis that the lands were included in the Plaintiff's mahal.

12. The result is that these appeals are allowed, the judgments and decrees of both the Courts are set aside and the suits remanded to the Court of first instance for re-trial in accordance with the directions contained in this judgment. The parties will be bound by the pleadings as they stand, but will be allowed to adduce further evidence after the issues have been recast according to the definite cases which are made on one side or the other.

13. I should like to add that as the case is being remanded for re-trial, the Court below will be at liberty to put its own construction on the documents, and will not be bound by any expressions of opinion contained in this judgment.

14. Costs will abide the result.

C.C