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  • Agarwala
  • Varma, JJ.
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  • Varma, JJ.
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Smart Summary

Judgment Summary — Agarwala, J. (with Varma, J. concurring)

Factual and Procedural Background

In the record of rights finally published in 1923, the village of Shampur was entered as rent-free debatter property in favour of the defendant idols Damodarjiu and Shamsunderjiu; the other defendants were recorded as she-baits. The plaintiff-appellant sued for a declaration that Shampur is a rent-paying mauza within his zamindari, that it is not debatter property, and that the defendants are ordinary tenure-holders liable to pay rent at Rs. 26 per year.

The trial Court entered a decree in favour of the plaintiff. On appeal the lower appellate Court reversed and held that the village was rent-free debatter property. The plaintiff brought a second appeal (this appeal) challenging the appellate Court's conclusion. The plaintiff relied on historical grants and regulations (including the Badshahee Grants Regulation 37 of 1793 and the non‑Badshahee Grants Regulation 19 of 1793) and other regulations concerning ascertainment and registration of rent‑free grants.

The defendants were unable to produce the original grant they said conferred the rent‑free right (it had been lost). Various documentary items were produced by both sides at earlier stages and were considered by the appellate Court and by Agarwala, J. in this second appeal. The Judges ultimately dismissed the appeal; Agarwala, J. delivered the reasoning and Varma, J. concurred.

Legal Issues Presented

  1. Whether the village of Shampur is a rent‑paying mauza within the plaintiff's zamindari (and therefore not debatter rent‑free property).
  2. Whether the documentary material produced by the defendants (register extracts, a cess receipt, pattas, a kabuliat and a road‑cess return) could be used to prove that Shampur was rent‑free debatter property.
  3. Whether statements in documents to which the plaintiff was not a party (specifically the pattas and the kabuliat) are admissible against the plaintiff under Section 13 of the Indian Evidence Act (clause (b) relied on by respondents).
  4. How the statutory presumption arising from an entry in the Record of Rights interacts with the common‑law presumption that a zamindar is entitled to rent: specifically, when and how the onus shifts under the Privy Council decision in 2 Pat 38.
  5. Which party bears the onus of proving that the Government revenue fixed in 1793 was assessed on particular lands (i.e., that Shampur formed part of the plaintiff's assessed lands).

Arguments of the Parties

Appellant's Arguments

  • The plaintiff-appellant argued (by reference to the Badshahee Grants Regulation 37 of 1793, the non‑Badshahee Grants Regulation 19 of 1793 and other regulations) that Shampur had not been shown by the defendants to have been a rent‑free grant before the time of the decennial settlement, and therefore the entry in the Record of Rights should not prevail.
  • The plaintiff's counsel contended that descriptive statements appearing in the pattas and the kabuliat (documents to which the plaintiff was not a party) were not admissible against the plaintiff.
  • The plaintiff relied on the Privy Council decision in 2 Pat 38 to contend that the statutory presumption in favour of the Record of Rights was insufficient to rebut the common‑law presumption that the zamindar is entitled to rent; he sought to shift the onus onto the defendants by showing that the land lay within his regularly assessed estate.

Respondents' Arguments

  • The respondents relied on documentary material (some of which was described in the Record of Rights and other papers) and argued that the records show Shampur to be rent‑free debatter property.
  • They argued that statements in the pattas and the kabuliat which described the mauza as defendants' lakheraj debatter were admissible under Section 13(b) of the Evidence Act as "particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from."
  • The respondents relied on the statutory presumption arising from the entry in the Record of Rights in their favour and argued that the plaintiff had not discharged the onus of proving that the land was assessed to the plaintiff's zamindari in 1793.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
31 CWN 32 (Calcutta High Court) Construction and application of Section 13 of the Evidence Act: meaning of "claim" and whether statements in documents to which an adverse party was not privy constitute instances of claiming or exercising a right for admissibility under S.13(a)/(b). The Court followed the reasoning that a mere assertion in a document, to which the adverse party is not a party and of which he knows nothing, does not constitute a "claim" or an instance of exercise of the right; relied on this to hold pattas, kabuliat and similar statements inadmissible to prove rent‑free status.
2 Pat 38 (Privy Council) Where lands sought to be held rent‑free lie within the landlord's regularly assessed estate (mahal) and revenue has been assessed, the onus shifts to those who claim to hold free to show satisfactory evidence of exemption (contract or old grant recognized by Government). The Court interpreted this authority as requiring the landlord to first prove that the disputed land lies within his regularly assessed estate and for which revenue was assessed; because the plaintiff failed to prove that Shampur was included in his assessed lands, the shift of onus did not occur in his favour.
Second Appeals 1584–1590 of 1930 (decided 28 April 1933) — Khaja Mohamad Noor, J. (unreported) Emphasized the pivotal phrase from 2 Pat 38: that the land sought to be held rent‑free must lie within the landlord's regularly assessed estate for the onus to shift. The Court agreed with this construction and noted its alignment with Khaja Mohamad Noor, J.'s understanding, applying the same requirement to the present facts (i.e., the plaintiff must prove the land lay within his assessed estate).
11 PLT 468 and 12 PLT 891 (Benches of this Court) Consideration of the Privy Council decision in 2 Pat 38 and its applicability. The Court observed that neither decision supported the appellant's contention; the cited PLT decisions did not provide assistance to overturn the statutory presumption in this case.
30 Cal 291 Onus of proving that Government revenue fixed in 1793 is assessed on particular lands (i.e., that lands were included in the permanent settlement) lies on those who affirm that such is the case. The Court applied this principle to hold that the appellant bore the burden of proving Shampur was included among the lands for which his predecessor paid assessed revenue in 1793, and that the appellant had not discharged this onus.

Court's Reasoning and Analysis

The Court reviewed the documentary material relied on by the appellate Court and analysed admissibility and probative value step by step.

  1. Documents and connection: The defendants could not produce the original grant (lost). The appellate Court had relied upon a register extract (1873) and a cess receipt; the appellate Court inferred from a suit for cess alone that the predecessor of the plaintiff had not asserted a right to recover rent. Agarwala, J. noted that the name of the mauza in dispute was not entered on the papers relied on and that there was nothing on the record linking those documents to mauza Shampur. Because those documents had been produced by the defendants, it was their duty to establish the connection between them and the disputed property.
  2. Admissibility under Section 13 (Evidence Act): The Court considered whether statements in the pattas and the kabuliat (documents in which the mauza is described as defendants' lakheraj debatter) were admissible against the plaintiff under Section 13(b). Relying on the Calcutta High Court authority (31 CWN 32) and the construction given there to "claim" and to an "instance in which the exercise of the right was asserted," the Court held that:
    • The mere assertion of a right in a document to which the adverse party was not a party and of which he had no knowledge does not amount to a "claim" under S.13.
    • Similarly, a bare statement in a deed (for example, that a vendor had a nishkar right) is not typically an instance of exercising the right; exercise usually requires something like refusal to pay rent.
    • Accordingly, the Court held that the pattas, kabuliat and the road‑cess return statement (1872) were inadmissible under Section 13 for proving the defendants' entitlement to hold Shampur rent‑free.
  3. Statutory presumption from Record of Rights and burden of proof: The Court acknowledged the statutory presumption in favour of the correctness of an entry in the Record of Rights (i.e., that the entry describing the defendants as rent‑free holders is presumed correct). The appellant contended that this statutory presumption was insufficient to rebut the "common law" presumption that the zamindar is entitled to rent unless exempted by contract or grant, relying on 2 Pat 38.
  4. Interpretation of 2 Pat 38 and onus shifting: The Court examined 2 Pat 38 and related authorities and concluded that the correct reading requires the landlord to first prove that the land sought to be held rent‑free lies within his regularly assessed estate or mahal and that revenue was assessed in respect of it. Only when the landlord establishes that the disputed land lies within his assessed estate does the onus shift to those claiming to hold free to show satisfactory evidence of exemption (contract or old grant recognized by Government). The Court adopted this interpretation (it agreed with Khaja Mohamad Noor, J.'s exposition in the unreported second appeals) and found that the plaintiff had not proved that Shampur was included in lands on which his predecessor's assessment was made.
  5. Application to facts and conclusion on evidence: Because the plaintiff failed to discharge the onus of proving that Shampur formed part of the zamindari lands on which revenue was assessed, the statutory presumption in favour of the defendants' entry in the Record of Rights remained unrebutted. The inadmissibility of significant documentary items further weakened the plaintiff's case. Consequently, the Court dismissed the plaintiff's appeal.

Holding and Implications

Holding: The appeal is DISMISSED (dismissed with costs).

Implications and immediate effect:

  • The appellate Court's finding that the village of Shampur is rent‑free debatter property (as entered in the Record of Rights) stands; the plaintiff's claim that Shampur is a rent‑paying mauza within his zamindari and that the defendants are ordinary tenure‑holders liable to pay Rs. 26 per year is rejected.
  • The statutory presumption arising from the entry in the Record of Rights was held to remain unrebutted on the facts of this case because the plaintiff did not prove that Shampur was within his regularly assessed estate; therefore the defendants' rent‑free status as recorded prevails.
  • No new principle of law was announced beyond the application and reaffirmation of existing authorities: the Court applied prior decisions (including 2 Pat 38 and the Calcutta High Court interpretation of Section 13) and existing rules on burden and admissibility to decide the case. The disposition is a factual application of those precedents to the evidence before the Court.

Disposition noted in the judgment: "Appeal dismissed." (Varma, J. concurred.)

Show full summary ...

    Jyoti Prashad Singh Deo Bahadur v. Bharat Shah Balu

    Agarwala, J.:— In the record of rights finally published in 1923 village Shampur was recorded as the rent-free debatter property of the defendant idols Damodarjiu and Shamsunderjiu and the other defendants were recorded as she-baits. In the present suit the plaintiff-appellant sued for a declaration that the village is a rent paying mauza within his zamindari, that it is not debatter property and that the defendants are ordinary tenure-holders and are liable to pay rent at Rs. 26 a year. The first Court decreed the plaintiff's suit. On appeal the lower appellate Court reversed this decision, holding that: the village was rent-free debatter property. This decision is challenged in second appeal by the plaintiff-appellant, and by reference to the Badshahee Grants Regulation 37 of 1793, and the non-Badshahee Grants Regulation 19 of 1793, and the other Regulations intended for the purpose of ascertaining and registering rent-free grants, it is argued that village Shampur has not been shown to have been a rent-free grant before the time of the decennial settlement as alleged by the defendants.

    2. It may be mentioned that the defendants were unable to produce the grant by which they say their ancestors acquired the mauza in dispute because it has been lost. The Court of appeal below has referred to the documentary evidence adduced by the plaintiff, but has been unable to draw from it the inference which the plaintiff seeks to place upon that evidence. With regard to the documentary evidence of the defendants, the Court of appeal below has come to the conclusion that evidence proves that the property was rent-free property granted to the ancestors of the defendants. That evidence consists, first, of an extract from a general register of records showing that in 1873 the plaintiff's predecessor in title sued the defendants for recovery of cess: a receipt for cess was also produced. The lower Court has inferred, from the fact that only cess was claimed, that the predecessor of the plaintiff did not assert the right to recover rent from the defendants. It appears, however, that the name of the mauza in dispute in the present litigation is not entered in the papers on which the Court of appeal below relies and there is nothing on the record to connect those papers with mauza Shampur. The documents referred to were documents put in by the defendants, and it was, therefore, the duty of the defendants to show the connexion between those documents and the property in dispute.

    3. The next items of evidence on which the Court of appeal below relied were two pattas and a kabuliat. The pattas were executed by the predecessor in interest of the defendants and the kabuliat by a tenant to whom a certain right was granted by the defendants. In these documents the mauza is referred to as defendants' lakheraj debatter. The learned Advocate for the appellant contends that this description of the defendants in documents to which the plaintiff was not a party is not admissible against him. For the respondents, on the other hand, it is contended that the statements in the patta and kabuliat are admissible under Section 13 of the Evidence Act, Cl. (b). The relevant portion of S. 13 is as follows:

    Where the question is as to the existence of any right or custom, the following facts are relevant: (b) particular instances in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.

    4. In the present case the question is whether these statements in the pattas and kabuliat were instances in which the right was claimed or instances in which the exercise of the right was asserted. A similar contention was raised before a Bench of three Judges of the Calcutta High Court in 31 CWN 32(1). In that case the plaintiff sued for assessment of fair rent on the land in suit in which he alleged that the defendants had a right of occupancy only. The defendants pleaded that the land was held rent-free and produced in evidence a kabala executed many years previously by which one of their predecessors purported to sell the plaint lands with other lands alleging that they were nishkar brahmattar and that his father was in possession of them in nishkar right. A question arose whether the statement in the kabala was admissible either under Cl. (a) or (b) of S. 13. In considering the meaning of the word “claimed” in Cl. (a) Cuming, J., one of the two Judges who first heard the case and whose decision was approved by three Judges before whom the case eventually came, held that the word “claim” in the section indicates that the right is asserted to the knowledge and in the presence of the person whose right will be derogated by the establishment of the claim. His Lordship went on to observe:

    The mere assertion of the right in a document, to which the person against whom the right is asserted is not a party and of which he knows nothing is not to claim the right.

    5. With regard to the second part of para, (b) of S. 13, in considering the meaning of the words, “particular instances in which the exercise of the right was asserted,” his Lordship observed:

    The mere statement in the deed of sale that the vendor had a nishkar right cannot be said to be an instance when the exercise of the right was asserted. It is difficult for me to conceive how a nishkar transaction right can be exercised except perhaps by the refusal to pay rent.

    6. With these observations on the construction of Section 13 of the Act I respectfully agree, and would, therefore, hold that the statements in the patta and kabuliat are not admissible to prove the contention of the defendants in the present case. The next item of evidence on which the Court of appeal below relied for its finding was a certified copy of a statement made by an ancestor of the defendants in the course of filing a road-cess return in 1872. In that statement he described mauza Shampur as his rent-free debatter property. This statement also appears to me to be inadmissible under Section 13 of the Evidence Act, for the reasons already indicated. There remains in favour of the case for the defendants-respondents the statutory presumption arising from the entry in the Record of Rights. With regard to this the learned Advocate for the appellant contends that this statutory presumption is insufficient to rebut what may be called the common law of presumption that a zamindar is entitled to rent on lands lying within his zamindari unless the person in possession of any portion of it is able to prove that by contract or otherwise he is exempted from the payment of rent. For this, reliance was placed on the decision of the Privy Council in 2 Pat 38(2). In that case the respondents had been entered during the settlement operations in the Record of Eights as rent-free tenure-holders of lands lying within the appellant's zamindari. The appellant sued for a declaration that the respondents were ordinary rent-paying tenants. The first Court found that the defendants were liable to pay rent for the holding and its decree was upheld on appeal by the District Judge. In second appeal the High Court reversed this finding of fact. The Privy Council, in view of the fact that the High Court had differed from the lower Courts not only in the estimate of the evidence but also with regard to the inferences derivable from the documents produced in the case, themselves dealt with the appeal on its merits and reversed the decision of the High Court. Referring to the statutory presumption in favour of the correctness of the entry in the Record of Rights their Lordships observed:

    Considerable stress has been laid on this presumption on behalf of the respondents. Once, however, the landlord has proved that the and which is sought to be held rent-free lies within his regularly assessed estate or mahal, the onus is shifted. In the present case, the lands in dispute lie within the ambit of the estate which admittedly belongs to the plaintiffs and the pro forma defendants, and for which they pay the revenue assessed is the mauza. In these circumstances it lies upon those who claim to hold the lands free of the obligation to pay rent to show by satisfactory evidence that they have been relieved of this obligation, either by contract or by some old grant recognized by Government.

    7. It will be observed, therefore, that it is not until the landlord proves that the land which is to be held rent-free lies within his regularly assessed estate or mahal and that revenue has been assessed on it, that the onus is shifted to the defendants to prove that they were entitled to hold the land free of the obligation to pay rent for it. The decision in 2 Pat 38 has been considered by Khaja Mohamad Noor, J. in Second Appeals 1584 to 1590 of 1930, decided on 28th April, 1933. Those appeals arose out of seven suits instituted by a patnidar under the Raja of Paohet, who is the appellant in the present appeal, for a declaration that the entry in the Record of Eights, that the defendants were nishkar brahmottardars, was incorrect and that the lands in their possession were liable to rent. In the Courts below the suits had been dismissed on the ground that the presumption arising from the entry in the Record of Rights had not been rebutted. In second appeal to the High Court the plaintiff contended that having proved that the lands were situate within his zamindari the presumption of the Record of Rights was rebutted and the onus was shifted upon the defendants to establish that they had acquired a right to hold the lands free of rent. In that case, as in the present appeal, reliance was placed on the decision of the Privy Council, 2 Pat 38. Khaja Mohamad Noor, J. observed:

    I am clearly of opinion therefore that the important words in the judgment of their Lordships of the Judicial Committee in 2 Pat 38 are “the land which is sought to be held rent-free lies within his regularly assessed estate or mahal,” “the land in dispute lies within the ambit of the estate for which they pay revenue assessed in the mauza.”

    8. The view that we take of the decision in 2 Pat 38 therefore appears to be in accord with the view taken by Khaja Mohamad Noor, J. in the unrepocted second appeals. The decision of the Privy Council in 2 Pat 38 has also been considered by Benches of this Court in 11 PLT 468(3) and 12 PLT 891(4). There is nothing in either of these decisions to support the contention of the learned advocate for the appellant. The onus of proving that the Government revenue fixed in 1793 is assessed on any particular lands as being included in the permanent settlement is on those who affirm that such is the case, 30 Cal 291(5). The onus, therefore, of proving in the present case that Shampur was included within the lands in respect of which the predecessor of the plaintiff was assessed lies on him and he has failed to discharge that onus to the satisfaction of the Court of fact below.

    9. The statutory presumption in favour of the defendants, therefore, remains unrebutted with the result that this appeal must be dismissed with costs.

    10. Varma, J.:— I agree.

    D.S/R.K

    11. Appeal dismissed.

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    Jyoti Prashad Singh Deo Bahadur v. Bharat Shah Balu
    (Nov 5, 1935)