Caspersz, J.:— This appeal arises out a suit brought by the plaintiff to obtain possession of some land as being ??? zerait (private) land and in the alternative he prayed for assessment of rent thereon. In the Record-of-Rights, there are two entries against this land.
2. It was recorded that the defendant held it as a raiyat or tenant under the plaintiff but that it was belagan that is to say not assessed with rent at the time when the record was prepared, the finding cannot be impugned that the land is not zerait land of the plaintiff. The first Court however proceeded to assess it with rent. On appeal the District Judge attached little or no importance to the Record-of-Rights on the ground that the entries were conflicting and he placed the onus of proof on the plaintiff, with the result that because the plaintiff had not received any rent for a very long time he was not entitled to have any rent now assessed on the land in question. In this view of the matter he dismissed the plaintiff's suit.
3. In second appeal it has been urged on behalf of the plaintiff that the land being admittedly within the zemindari of the plaintiff, and the defendant being his tenant the word “belagan” merely implies that the land though not assessed was assessable with rent. In my opinion the decision of the District Judge cannot be supported. A variety of reported cases have been cited and discussed at the Bar. I may mention the following cases in this connexion: Hurryhur Mookhopadhya v. Madub Chunder Baboo . 1870-72 14 M.I.A 152, Batai Ahir v. Bhugobutty Koer . [1886] 11 C.L.R 476. and Sheik Milan v. Mahomed Ali . [1906] 10 C.W.N 434..
4. No doubt the onus of proof was upon the plaintiff, but that fact does not relieve the defendant from adducing evidence to rebut the presumption that arises from the entries in the Record-of-Rights. The relation between landlord and tenant admittedly exists between the parties upon that presumption and although the defendant may have never paid any rent it does not follow that he will never be liable to discharge that obligation to the landlord. No suit was brought to contest the entries in the Record-of-Rights. The defendant failed to produce any sanad or to rebut the presumption of correctness attaching to the record.
5. The learned vakil for the defendant has relied in support of the District Judge's judgment upon Article 130, Sch. 2, Lim. Act. That article provides a period of limitation of twelve years for the resumption or assessment of rent-free land the period running from date when the right to resume or assess the land first accrues. But the obligation to pay rent is a recurring obligation accruing daily in favour of the landlord. In my opinion Article 130 has no concern with the circumstances of the present litigation.
6. But nothing has been decided in the judgment of the lower appellate Court as regards the assessment of rent except that the average struck by the Munsif is open to objection.
7. The decision of the. District Judge is reversed. The case ??? go back to the lower appellate Court for a determination of the fail rental to be imposed on the land in suit. The plaintiff claimed rent at Rs. 8-8-0 a bigha. His witness put it at Rs. 8 a bigha, and the defendant's witness, Uttam Chand Lal, deposed to Rs. 3 a bigha being the fair rate. Upon these and the other materials in the record the District Judge must arrive at his own conclusion, and give the plaintiff a decree for the rental which he may deem fair.
8. The plaintiff must pay the costs up to the present stage. Further costs will be in the discretion of the District Judge.
JUDGMENT
9. This is an appeal from a judgment of Casperz, J., and it raises the question whether the defendant's holding is liable to assessment for rent. The plaintiff is the zamindar and in the Record of Sights there is an entry of this particular holding in the name of defendant but as belagan. From a very useful publication, being a Guide and Glossary to the Survey and Settlement Operations in Behar, we learn the sense in which the Settlement Officers use the term “belagan.” It indicates a rent free tenure and it is explained that belagan means simply “not paying agricultural rent” and does not imply anything as to liability to pay rent. This is in contrast with the expression “kabil lagan,” also to be found in the same Glossary, which describes a tenancy for which rent is not actually paid but which is liable to pay rent. In this case the defendants pleaded a lakhiraj title. The word “lakhiraj” is often used loosely—in strictness it indicates a freedom from liability to revenue, but it is constantly used as indicating exemption from liability to pay rent, and it may fairly be taken in this case that the defendant did plead a freedom from liability to pay rent. The decision of the lower Court of appeal was that the plaintiff had failed to prove that the land was subject to rent and the learned Judge consequently allowed the appeal and set aside the decree of the lower Court. Capersz, J., on appeal has reversed that decree and sent back the case to the lower appellate Court for a determination of the fair rental to imposed on the land in suit. It is from this determination that the present appeal has been preferred.
10. In my opinion this appeal must succeed for I think the finding of the lower appellate Court is conclusive in this case. It has been argued before us that the entry belagan is decisive in favour of the zemindar. I fail to see that. The significance of the entry is indicated in the Glossary to which have already drawn attention and it is apparent from this that while it may be indicative of a tenure, it also shows that no rent in fact was paid and makes no pronouncement either way as to liability to pay rent. It cannot therefore be said that the determination of the District Judge in any way conflicts with the entry in the Record-of-Rights. His judgment rests on a familiar rule of law which has not been disputed before us and in accordance with which the Court may from evidence of long and uninterrupted possession without payment of rent, presume a grant of land under conditions which make it rent free, though it may not be revenue free. The difficulty in this case has largely arisen from a failure to distinguish between rent free and revenue-free. It is no doubt true that freedom from revenue cannot now be effectively created but the decision of the Full Bench in Muhammad Akil v. Asadunnissa Bibee . [1868] 9 W.R 1 and more particularly that portion of Sir Barnes Peacock's judgment which is reported at pp. 41 and 61 makes it clear that there can be a rent free grant of permanently-settled land and such a grant cannot be treated as a nullity by the grantor or his heirs or by any person claiming though him. The zamindar in this case cannot claim the position of advantage which would have accrued to him had he been the purchaser at a revenue sale and we have to decide this case apart from that and so regarding it I think we must hold that the learned Judge of the lower appellate Court was entitled to make the presumption he did and that as a result we ought to decide that the appellant before us holds the land free from liability to rent. We must therefore set aside the judgment of Caspersz and restore the decree of the District Judge, with costs of this hearing and of the hearing before Casperz, J.
V.B/R.K
11. Appeal allowed.
12. Suit dismissed.