The Judgment of the Court was as follows:—

Chakravarti, J.:— This is an appeal by the Plaintiffs against the judgment of the Officiating Subordinate Judge of Faridpur, dated the 26th July 1924, reversing that of the Munsif of the 2nd Court at Bhanga, dated the 17th March 1924.

The Appellants brought the suit under sec. 158 of the Bengal Tenancy Act for the assessment of fair and equitable rent for certain lands appertaining to their zemindari Touzi No. 5557 of the Faridpur Collectorate in the possession of the Defendants and also for arrears of rent for the years 1326 to 1329. In the course of a record-of-rights the lands in suit were recorded as brahmottar Prankrishna Bhattacharji liable to assessment with fair and equitable rent. The present claim of the Plaintiffs was based on the said entry in the record-of-rights.

The defence of the Defendants Nos. 1 to 14 was that the lands in suit appertained to brahmottar Prankrishna Bhattacharji, that these lands were enjoyed as such by the grantee and his successors from before the Permanent Settlement and that in execution of a decree, dated 1879, against a successor of the original grantee, the lands in suit were sold as rent-free brahmottar in 1882 and were purchased by Defendants Nos. 6, 7, 8 and 9. The Defendants alleged that the purchasers were all along in possession of the lands as rent-free brahmottar without any payment of rent to the Plaintiffs.

The Court of first instance held that the Defendants had failed to rebut the presumption of the correctness of the record-of-rights by the documents relied upon by them. He further held that the presumption of a lost grant did not arise in the circumstances of the present case. The learned Munsif was not satisfied that the documents, Exs. A, B and C, relied on by the Defendants did relate to the lands in suit and he held that even assuming that these documents did relate to the lands in suit, they were not sufficient to rebut the presumption which arose from the record-of-rights.

On appeal by the Defendants the learned Subordinate Judge found that Exs. A, B and C related to the brahmottar lands known as Prankrishna Bhattacharji. He further found that Harish and Parbati whose names were mentioned in Exs. A, B and C were descendants of Prankrishna Bhattacharji. Ex. A is a hibanama, dated 1861, by which the lands in suit were dealt with as rent-free brahmottar by the descendants of Prankrishna Bhattacharji. Ex. B was the sale certificate under which the Defendants purchased the land at the sale of 1882; and Ex. C was the writ for delivery of possession to the purchaser in that execution sale. No question as to the admissibility of these documents was raised either in the Court of first instance or before the learned Subordinate Judge. The only ground upon which the Plaintiffs contended that those documents were of no help to the Defendants was that it was not established that the lands mentioned in those documents were the lands in suit. The learned Subordinate Judge found that, to use his own words,—“There is therefore no doubt that the Defendants and their predecessors have been holding the said lands as rent-free brahmottar for at least 62 years. The Plain tiffs-Respondents cannot show that within this period they have realised any rent from the Defendants in respect of the lands in suit. The Defendants denied that they ever paid rent for the said land. That being so, it can be reasonably inferred that the Defendants and their predecessors-in-interest have held the land under a rent-free title. The same can also be inferred from the description of the lands as brahmottar in the record-of-rights.” In this view the learned Subordinate Judge dismissed the Plaintiffs' claim for assessment of fair and equitable rent.

The learned vakil who appears for the Appellants urged two grounds in support of this appeal: first, that the lands being admittedly within the Plaintiffs' zemindary the Defendants were bound to prove an old grant recognised by law; and secondly, that Exs. A, B and C were not admissible in evidence.

In the course of arguments the learned vakil also contended that the presumption of a lost grant which the learned Subordinate Judge held to have arisen from long enjoyment of the lands under a claim of rent-free title was not justifiable upon the findings arrived at by the learned Subordinate Judge.

The learned vakil contended that the Defendants were not entitled to establish their claim to hold under a rent-free grant without the production of the original grant. In support of this contention the learned vakil relied upon the case of Jagdeo Narain Singh v. Baldeo Singh . There is no doubt as to the general principle that a person who claims to hold as a tenant land within the ambit of a zemindary must prove his right to hold it without payment of rent by a grant from the zemindar. In the case before their Lordships, they were not satisfied that the tenant had succeeded in proving such a grant. Their Lordships did not intend to lay down that the only way to prove a grant was by production of the grant itself.

This contention of the learned vakil therefore fails.

The learned Subordinate Judge has presumed the existence of a lost grant. It is only in cases of long possession under the claim of a definite right that the question of presumption of a lost grant arises. It is a well-known principle. In a recent decision of the Judicial Committee in the case of Sri Nath Roy v. Dina Bandhu Sen (2), their Lordships observed: “In practice such original grants are but rarely forthcoming and resort must he had to secondary evidence of them or to the inference of legal origin from long user.” Later on their Lordships observed that the evidence of “a Government grant of an exclusive fishery in navigable waters ought to be conclusive and clear, but they are of opinion that in so far as such evidence can now be expected to be forthcoming as to particular grants more than a century old, the evidence in the present case was sufficient to show that the competent authority—the Government of India in right of the Crown—did actually grant to the Plaintiffs' predecessors-in-title or settle with them so as in effect to grant a jalkar right.” In this case a lost grant by the Crown of a several fishery in favour of the subject was presumed from long possession. In cases of claims of prescriptive right based on long user, presumption of lost grant has been made. The Judicial Committee in the case of Maharani Raj Roop Koer v. Syed Abul Hossein (3) observed as follows:—“Their Lordships think that in this case there is abundant evidence upon the facts found by the Court for presuming the existence of a grant at some distant period of time.” Similar presumption of a lost grant has been drawn in cases where the permanency of a tenure has been claimed from long user and other circumstances. See the case of Abdul Hakim v. Elahi Baksha (4).

In Bengal Rajas and rich zemindars in ancient days made numerous rent-free brahmottar grants to learned Pandits and Brahmins of saintly character for their maintenance. At this distance of time most of the original grants recorded in country papers have been lost.

Long possession by the grantees and their successors under a claim of rent-free brahmottar grant is all that can be expected after a long lapse of time in proof of a legal origin of such grants. At this distance of time it is unreasonable to expect that grants made to those Brahmins would exist or could be produced in Court. Whether a presumption of a lost grant should arise or not must depend upon the circumstances of each case. The existence of these original grants after the lapse of such a long time can only be expected if such documents escaped destruction either by the climatic influence of lower Bengal or by ravages of white ants or destruction by fire or cyclone of the thatched huts in which the grantees of this class ordinarily resided. It is only in rare cases that an ancient grant which has survived these risks is now available for production in Court. In cases of this nature when long possession, as here, for 62 years has been proved by direct evidence, the Court not only might, but, in my opinion, ought, to presume that the claim was based upon a grant which is now lost. Care must, however, always be taken to see in these cases that long possession is clearly established to have been enjoyed under a definite claim of right in such a manner that in the circumstances it was likely to have attracted the notice of the person or persons whose rights are adversely affected by such a claim. In England where deeds are ordinarily kept in safer custody and are less liable to destruction, this rule of law is also well-established. I shall refer to one well-known case in which this principle is stated by Lord Herschel in the following words:—

“Now, I apprehend that where there has been long continued possession in assertion of a right, it is a well-settled principle of English law that the right should be presumed to have had a legal origin, if such a legal origin was possible, and the Court will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title, Philipps v. Halliday (5). Lord Reading, C.J, referred to this enunciation of the law in a comparatively recent case of General Estates Company v. Beaver (6).

In the present case the learned Subordinate Judge has found possession for 62 years under a claim of a rent-free grant by the original grantee and his successors and then, after the property was sold by the purchasers, Defendants. During this long period of time the zemindar did not receive any rent for these lands.

I am therefore of opinion that the learned Subordinate Judge was right in holding that from the circumstances of the present case the presumption of a lost grant arose.

As to the second point raised by the learned vakil, as I have already stated, no objection as to the admissibility of those documents was raised in either of the Courts below. Nor was it raised in the written grounds of appeal before this Court. It is difficult to see on what ground their admissibility as evidence can be questioned. The first document is a piece of evidence which shows the dealing of the property by the descendants of the original grantee as rent-free brahmottar land; and the other two documents are connected with the title of the Defendants. One of them is in fact the title deed upon which the Defendants' claim was based as purchasers at an execution sale. The other document shows that delivery of possession under that purchase was taken.

None of the grounds relied upon by the learned vakil for the Appellants has any force. Strong reliance was placed by the learned vakil for the Appellants on the presumption as to the correctness of the entry in the record-of-rights in favour of the Plaintiffs. There cannot be any doubt that the entry must be presumed to be correct unless the contrary is proved but when the matter is investigated by the Civil Court and the parties adduce their evidence on the point in controversy, the entry loses its weight when the evidence discloses no foundation for it.

The appeal therefore fails and is dismissed with costs.

Panton, J.:— I agree.

H.C.S