1. This appeal involves a question of some complexity, if not difficulty, and has been argued at some length.

2. The facts are simple. The plaintiffs, who are the appellants before me, brought a suit for a declaration of their niskar brahmottar title to an area of a little over 7 bighas of land, but at the hearing it was explained that what they really claimed was a revenue-free right under a lakheraj grant of the non-badshahi lease. Their case was that defendants 2 and 3 were really tenants under them, but had been wrongly recorded as holding under certain patnidars of the Estate Bupnarayanpur. That estate had recently been sold for arrears of revenue and purchased by the Province of Bengal and after its purchase, the Province had proceeded to recover rent from defendants 2 and 3 by the certificate procedure on the footing that the interest of the patnidars had ceased to exist. These happenings, the plaintiffs alleged, had cast a cloud upon their title and accordingly they asked for the declaration which I have already mentioned as also for some arrears of rent from the tenant defendants.

3. The defence of the Province of Bengal was that the record of rights was correct and the lands formed a part of the mal assets of Estate Bupnarayanpur. The further case of the Province of Bengal was that it was not bound by any rent-free grant of the defaulting proprietor, assuming any such grant had been made. The defence of the tenant defendants was merely one of payment of rent partly to the Province of Bengal and partly to the plaintiffs themselves; but on the question of title, they supported the plaintiffs. In support of their case the plaintiffs relied upon a certified copy of a taidad, bearing the date 1209 B.S in which a claim of niskar title in respect of some land under a grant dating from before at least 1184 B.S appears to have been made. They also relied upon a deed of mortgage, Ex. 1, executed by themselves in favour of the patnidars of the estate in the year 1871, as also upon the decree passed in a redemption suit brought on that mortgage in the year 1916. They also led some evidence of their possession without payment of rent or revenue and realisation of rent from subordinate tenants for a considerable space of time.

4. Both the Courts have found that the lands, to which the taidad related, were the lands with which the present suit is concerned, although no boundaries had been given in the taidad. They also found that the lands mort-gaged by Ex. 1 were the lands with respect to which the present suit had been brought. The trial Court found further that since the redemption of the lands in the year 1916, the plaintiffs had been in possession by realising rent from subordinate tenants.

5. The conclusions arrived at by the two Courts were however different. The trial Court held, basing its decision chiefly on the taidad and the mortgage deed, Ex. 1, that the plaintiffs had established their lakheraj title to the lands in suit and in that view gave them the declaration they had asked for. It also made a decree against the tenant defendants for arrears of rent in respect of one year. The lower appellate Court, however, held that Ex. 1 was not admissible in evidence against the Province of Bengal as an instance of an assertion of a rent os revenue-free title. It refused to make any declaration in favour of the plaintiffs merely on the basis of the taidad and observed that although the taidad might raise a presumption, the plaintiffs could not succeed unless they produced some evidence of a more positive character such as the register of revenue-free lands or the register of estates. In that view the lower appel-late Court rejected the plaintiffs' prayer for a declaration of a revenue-free title, but nevertheless it made a declaration that the plaintiffs had a title to possess the suit lands through the tenants defendants, subject to the payment of a rent of Ss. 14 to the Province of Bengal. It also made a declaration as regards the rent payable by the tenants defendants.

6. In the present appeal by the plaintiffs, it was contended in the first place that the lower appellate Court was wrong in construing Ex. 1, and it was contended in the second place that, in any event, the materials produced by the plaintiffs were sufficient in law to establish a lakheraj title.

7. So far as the first ground is concerned, I may say at once that the learned Judge below, in my view, put a construction upon the deed of mortgage, which it cannot possibly bear. The deed quite clearly describes its subject-matter as appertaining to the lakheraj lands held by the executant and the interpretation put by the learned Judge upon its various clauses seems to me to be quite contrary to the import of the language used. To say that, however, is not to hold that the rejection of this deed as a piece of evidence in favour of the plaintiffs has been in effect erroneous in law. It was sought to be used by the plaintiffs as evidence of a transaction in which their revenue-free title had been asserted. It is well settled now that there is a fundamental distinction between a mere recital and an assertion. A right is not asserted simply because it is recited in a certain document. It is asserted only when the transaction concerned is itself entered into in exercise of the right. For example, if a tenancy is not transferable unless it is of a permanent character, a transfer of the tenancy would be an assertion of a permanent right, but if a tenancy is transferable, whatever its nature may be, a transfer, accompanied by a statement in the deed that the tenancy was of a permanent character, will not be an assertion of a permanent right. The transaction in the present case was usufructuary mortgage. Quite clearly, the executant were entitled to grant a usufructuary mortgage of the lands, whether they held them under a revenue-free title or not. In those circumstances, the mere fact that in the document of mortgage a revenue-free, title was recited, would not, in my view, constitute an assertion of such title within the meaning of Section 13 of the Evidence Act. Reference in this connexion may be made to the decision in the case of 31 C.W.N 321 and the recent decision in 45 C.W.N 590.2

8. A more serious question, however, is raised by the second ground taken. On behalf of the Province of Bengal, it was contended the lower appellate Court had applied the law rightly in refusing to base its decision merely on the taidad. What had been produced in this case, so it was argued, was merely the application or statement of claim by the predecessors of the plaintiffs. No evidence was given that this taidad had ever been registered. It was true that the taidad contained a statement that the appellants had been holding the lands under a niskar brahmottar title from a date prior to 1184 B.S, but unless it was proved that the Collector had registered this taidad, this statement could not be used in proof of the truth of the fact stated or its acceptance by the Collector.

9. It was on the other hand contended by the learned Advocate for the appellants that the reasonable inference to be drawn from the taidad would be that the Collector of the day had been satisfied that the lakheraj grant had in fact been held from a period anterior to 1790 and in support of the proposition reliance was placed on the case in 1863 W.R (Sup. vol.) 95.3

10. The reply of the Province of Bengal to this argument was that, in the case cited, a reference had been made to the report under S. 30 of Regn. II of 1890 and the Collector had reported in favour of the claimants' title. It was also pointed out that registration of the taidad by the Collector had been proved in that case, and that the observations contained in the judgment upon which the appellants relied were founded entirely upon that circumstance.

11. It is true that the observations made in the case cited were based wholly on the unlikelihood that the Collector should have registered a taidad unless he had been satisfied on proper enquiry that whatever the validity of the grant claimed, it was held in fact. The observations relied upon proceeded from only one of the three Judges who decided the case, namely, Seton Karr, J., and do not represent the view of the Court in any sense. It is to be borne in mind that the relevant fact to be established is that the claim was with respect to a grant made before 1-12-1790. Where a taidad was filed on a later date, peaceful possession under a grant claimed had by some means to be found from a period anterior to 1790, if the applicant was to get the benefit of the Regulations. This gap was filled by drawing a presumption from the supposed act of the Collector in registering the taidad in a formal manner. Relying upon the observation made in the case by Seton Karr, J. it was argued on behalf of the appellants that although the taidad in the present case bears the date 1209 B.S which might be 1802 or 1803, still it should be presumed that the applicants had been in possession from before, 1790, as they claimed to have been doing in the body of the taidad.

12. So far as I can see, the Regulations do not embody any duty upon the Collector to make any enquiry, preliminary to registration of a taidad. Indeed, they do not seem to give him any right to make any such enquiry. The provisions of both S. 24 of Regn. 19 of 1793 and S. 19 of Regn. 8 of 1800 have reference to the period of limitation applicable to a registration of claims by owners of lakheraj grants. The registration contemplated seems to be only a registration of the claim; the liability to resumption is to be determined at a future date by a decision of the Court or the Collector as the case may be. From the provisions to which I have referred, it seems to me that the registration by the Collector would have to be automatic, since what those provisions are addressed to is merely the bringing upon the record, within the time limited, all claims by claimants to lakheraj rights, so that the ruling power might not be troubled with such claims at all future times to the detriment of public convenience or the public revenue. If I am right in taking this view of the Regulations, then it seems to me that the supposed enquiry by the Collector, upon which the observations of Seton Karr, J. were founded, had no place in the procedure laid down by the Regulations and consequently the conclusion he drew from it would also not be a correct conclusion.

13. It seems to me, however, that what is important in a case of this kind is not whether a claim was investigated and found to be valid, but whether it was made at all within the time laid down in the Regulations. It was contended on behalf of the Province of Bengal that an application, in order to be valid, had to be made within the time limited and the mere fact that an application was made at some time, which is all that has been proved in this case, did not establish that a valid application had been made. It was accordingly contended that unless the plaintiffs proved that they had registered their grant within the time prescribed by the Regulations, it must be held under the provisions of Ss. 26 and 27 of Regn. 19 of 1793 that the lands were liable to be assessed.

14. In my view, when S. 26 of Regn. 19 of 1793 uses the words “shall omit to register” it means, shall omit to make an application for registration. The two sections are imposing a penalty upon holders of lakheraj grants for omitting to do what was in their power to do and such a provision can have reference only to matters under the control of the persons concerned. It could not have any reference to any omission by the Collector to register an application, although an application was made within time.

15. It may, however, be said that even where the taidad, was filed within time, if it was not registered, the provisions of S. 27 would still be attracted and the lands covered by an alleged grant would remain liable to assessment. On the facts of the present case, this argument can be met by two answers. In the first place, it was not the case of the Province of Bengal that the lands in suit still remained to be assessed. It was their case that they were already the mal assets of mouza Rupnarayanpur. Any question of liability to assessment is therefore entirely out of the way. In the second place, although the lands might remain liable to assessment by reason of non-registration, they were in fact not assessed and if the grant was of a date prior to 1790, assessment is now barred by limitation.

16. These matters, however, are not very relevant to the present case which on ultimate analysis is found to be a case of a different shape altogether. The facts proved in this case are that a taidad was filed in the year 1802 or 1803, claiming a lakheraj grant dating from before 1790, and secondly that the plaintiffs or their predecessors had been in possession without paying revenue and by realising rent from their subordinate tenants at least from the year 1871. The question is whether on these facts the plaintiffs are entitled to succeed on the principle upon which this Court acted in 22 C.W.N 396.4 There it was held that it was not always necessary for a claimant of a lakheraj right to produce the grant or the title deed. If he proved long possession without payment of revenue, that would be a sufficient foundation for finding a revenue-free title in his favour.

17. It was contended on behalf of the Province of Bengal that the principle laid down in that case could have no application to the case before me, because in that case taidad registers themselves were produced. As I have explained, that circumstance seems to me to make no difference. It was in the next place contended that the real basis upon which the decision rested was that from mere long possession or non-payment of rent something like a lost grant could be presumed, but such a view must now be held to be erroneous in view of the decision of the Privy Council in 41 C.W.N 1194.5 In that case their Lordships, while dealing with a contention that a lost grant could be presumed from non-payment of revenue for a long period of time, observed as follows:

“The law may presume the existence of a grant which had been lost where it is sought to disturb a person in the enjoyment of a right which he and his predecessors have immediately enjoyed, but it is a different thing to seek to presume that the Crown has by some lost grant deprived itself of the prerogative power to tax the property of its subjects, and their Lordships are of opinion that this plea is untenable.”

18. In my opinion, the principal laid down in the case cited does not apply to the present case. The claim of revenue-free title here is being asserted not against the Crown but against the Province of Bengal as a purchaser at a revenue sale. The Province of Bengal's own defence is that the lands are part of the mal assets of the estate and if that be so, the Crown has already taxed the property to such revenue as it thought fit and if the plaintiffs are now granted an exemption as against the owners of the estate in whose shoes the Province of Bengal stands, the interest of the Crown or the public revenue will in no way be affected. But even a better reason can be found in a decision of the Privy Council itself, rendered with reference to the very Regulations which we have to consider in the present case. Dealing with the resumption regulations in the well-known case in 14 M.I.A 152,6 their Lordships observed at page 173 of the report that in such cases, that is to say, cases where ancient lakheraj grants were asserted effect could reasonably be given to presumptions arising from long and uninterrupted possession. I need only add that what is being sought to be asserted in the present case is not really a presumption arising from long possession without payment of rent, but the fact that after the filing of the taidad, the Government admittedly took no proceedings to assess the lands to revenue and the presumption arising therefrom is that they accepted the claim of the plaintiffs. From what I have stated above, it seems to me that the principle of the case in 22 C.W.N 396 will govern the present case and, as I have also stated already, their Lordships based their decision on the taidad register and the fact of long possession without payment of rent. The first matter I have already dealt with. As regards the second, it is true that no issue was joined and there is no specific finding by the lower appellate Court, just as there was none in the case before Teunon, J. His Lordship however went through the evidence himself and in one of the cases at least he made a declaration of rent-free title on the basis of possession dating from 1891. I have considered whether it would be necessary in the facts of this case to direct a remand, but I have reached the conclusion that such a course is not required. There would be no question that the patnidars of the estate took a usufructuary mortgage of the lands in the year 1278 B.S that is to say, 1871, and were in possession upto 1916 and as the terms of the mortgage bond show, no revenue was undertaken to be paid by anyone. Since the redemption of the properties in 1916, they have been in possession of the plaintiffs. Possession from 1871 upto the date of the suit is therefore beyond question and this indisputable period is a much longer one than the period which Teunon, J. considered sufficient.

19. I am therefore of opinion that the plaintiff's suit must succeed on the same grounds as were considered sufficient by Teunon, J. in the case reported in 22 C.W.N 396. The decree made by the lower appellate Court is in any view of the matter, wholly unintelligible, because after holding against the plaintiffs with regard to their claim of a revenue-free title, the learned Judge nevertheless interposed an estate held by them between the owners of the touzi and the subordinate tenants and even fixed the rents payable by the plaintiffs. It is not easy to understand on what basis the learned Judge made an order of this kind. It is however not necessary to pursue this matter further.

20. In the result the appeal is allowed. The judgment and decree of the Court of appeal below are set aside and those of the learned Munsif restored. I make no order for costs.

D.R

21. Appeal allowed.